Berger v. Shopa

• Court: District Court, D. Arizona
• Decided: December 31, 2024
• Docket: 4:24-cv-00262
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tony A. Berger, No. CV-24-00262-TUC-RCC (EJM)

10 Plaintiff, REPORT AND RECOMMENDATION 11 v. 12 Mike and Kathy Shopa, et al., 13 Defendants. 14 Currently pending before the Court is Defendants Cochise County and Judge Trevor 15 Ward’s Motion to Dismiss (Doc. 25) and Motion to Strike Plaintiff’s Improper Sur-Reply 16 (Doc. 33). Plaintiff has filed responses in opposition Defendants to Cochise County and 17 Ward’s motions, as well as a sur-reply to the motion to dismiss. Pl.’s Response to Mot. to 18 Dismiss (Doc. 29); Pl.’s Response to Doc. 31 (Doc. 32); Pl.’s Obj. to Mot. to Strike (Doc. 19 34). Defendants Cochise County and Ward have replied. Defs. Cochise Co. and Ward’s 20 Reply to Mot. to Dismiss (Doc. 31); Defs. Cochise Co. and Ward’s Reply in Support of 21 Mot. to Strike (Doc. 35). 22 In its discretion, the Court finds this case suitable for decision without oral 23 argument. See LRCiv. 7.2(f). The Parties have adequately presented the facts and legal 24 arguments in their briefs and supporting documents, and the decisional process would not 25 be significantly aided by oral argument. The Magistrate Judge recommends that the 26 District Court deny Defendants Cochise County and Judge Trevor Ward’s Motion to Strike 27 Plaintiff’s Improper Sur-Reply (Doc. 33) and grant their Motion to Dismiss (Doc. 25), but 28 allow Plaintiff leave to amend his Complaint. 1 I. FACTUAL BACKGROUND1 2 Plaintiff Tony A. Berger, an Arizona resident, filed this cause of action against Mike 3 and Kathy Shopa; Wayne Bounds; Cathy Shelton; Cochise County; and Trevor J. Ward, 4 Precinct No. 4 Judge. See Compl. (Doc. 1). Defendants Mike and Kathy Shopa are the 5 owners of property neighboring that of Plaintiff. Compl. (Doc. 1-2) at 1. Plaintiff 6 challenged the Shopa’s compliance with a well agreement in a November 30, 2023, 7 arbitration hearing. Id. During the arbitration hearing, the arbitrator allowed the Shopa’s 8 to present evidence “from another federal case that [Plaintiff was] involved in, which has 9 no bearing on the well share agreement.” Id. 10 Plaintiff appealed the arbitration decision “to the Justice Court on January 16, 2024, 11 where Judge Trevor J. Ward allowed the Shopa’s to repeat the same defamatory statements 12 and blatant perjurious assertions as the Shopa’s did in arbitration court[.]” Id. at 3. “Judge 13 Ward also allowed discussion of [Plaintiff’s] Federal Court Case No. 22-2582[,] [in the 14 Seventh] Circuit[,] [which] has no authority over nor does that case have anything to do 15 with the Well Agreement case, No. 4CV202300127 in Justice Court Precinct No. 4, in 16 Cochise County, Arizona.” Id. 17 Plaintiff next “appealed the decision of Judge Trevor J. Ward[,] . . . [whose] decision 18 was to dismiss the case because of zero proof economic loss[,]” to the Arizona superior 19 court. Compl. (Doc. 1-2) at 3. Judge Ward had “the Clerk tell [Plaintiff that] all [he] 20 needed was [his] Memorandum.” Id. Plaintiff believed that Judge Ward purposely mislead 21 him. 22 Later, in January 2024, Defendants Cathy Shelton and Wayne Bounds “spun-out 23 their truck throwing gravel and road dirt all over” Plaintiff while he was walking on East 24 Indian Ridge Road near his property. Id. at 1–2. Defendant Shelton “works for the Shopa’s 25 taking care of [their] Airbnb.” Id. at 2. “The [Cochise County] Sherriff’s dep[artment] 26

27 1 For purposes of this Report and Recommendation only, the Court will take as true the 28 allegations contained in Plaintiff’s Complaint (Doc. 1). The Court has generally limited the factual recitation to those facts relevant to Defendants Cochise County and Judge Trevor Ward. 1 refused to charge Cathy Shelton at all and would only write a disorderly conduct on Wayne 2 Lynn Bounds.” Id. Plaintiff believes that the Cochise County Sheriff’s Department 3 showed favoritism to Defendant Shelton because her family “are long time Rancher’s [sic] 4 of Cochise County.” Compl. (Doc. 1-2) at 2. 5 6 II. MOTION TO STRIKE 7 Defendants Cochise County and Ward seek an Order striking Plaintiff’s Response 8 to Document 31 Filed 10/31/2024 (Doc. 32). A surresponse is “[a] second response by 9 someone who opposes a motion.” Black’s Law Dictionary (12th ed. 2024). The Local 10 Rules2 of this Court allow only for a motion, response, and reply. See LRCiv. 7.2. In this 11 instance, the Court finds the information helpful to its resolution of the pending motion to 12 dismiss and will therefore consider the surresponse. Plaintiff is on notice, however, that 13 any future filings must comply with Rule 7.2, Local Rules of Civil Procedure. 14 Accordingly, Defendant’s motion to strike (Doc. 33) will be denied. 15 16 III. MOTION TO DISMISS 17 A. Standard of Review 18 A complaint is to contain a “short and plain statement of the claim showing that the 19 pleader is entitled to relief[.]” Rule 8(a), Fed. R. Civ. P. While Rule 8 does not demand 20 detailed factual allegations, “it demands more than an unadorned, the-defendant- 21 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 22 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 23 statements, do not suffice.” Id.; Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th 24 Cir. 1998) (“conclusory allegations of law and unwarranted inferences are not sufficient to 25 defeat a motion to dismiss.”). 26 Dismissal is appropriate where a plaintiff has failed to “state a claim upon which 27 relief can be granted.” Rule 12(b)(6), Fed. R. Civ. P. “To survive a motion to dismiss, a 28 2 Rules of Practice of the U.S. District Court for the District of Arizona. 1 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 2 that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. 3 Twombly, 550 U.S. 544, 570 (2007)). Further, “[a] claim has facial plausibility when the 4 plaintiff pleads factual content that allows the court to draw the reasonable inference that 5 the defendant is liable for the misconduct alleged. The plausibility standard is not akin to 6 a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 7 has acted unlawfully.” Id. (citations omitted). 8 “When ruling on a motion to dismiss, [the Court must] accept all factual allegations 9 in the complaint as true and construe the pleadings in the light most favorable to the 10 nonmoving party.” Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, 11 648 F.3d 986, 991 (9th Cir. 2011) (quoting Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 12 2005)). “The court draws all reasonable inferences in favor of the plaintiff.” Id. (citing 13 Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008)). 14 This Court is not required, however, to accept conclusory statements as a factual basis. See 15 Twombly, 550 U.S. at 555; Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir. 1986) 16 (“Although we must, in general, accept the facts alleged in the complaint as true, wholly 17 vague and conclusory allegations are not sufficient to withstand a motion to dismiss.”). 18 B. Analysis 19 Defendants Cochise County and Ward seek dismissal of Plaintiff’s Complaint (Doc. 20 1) because 1) this Court lacks subject matter jurisdiction based on the Rooker-Feldman 21 doctrine to hear “claims against Judge Ward or the County regarding Judge Ward’s judicial 22 decisions”; 2) Defendant Ward is protected by judicial immunity; and 3) Plaintiff has failed 23 to plead a Monell claim against Defendant Cochise County. See Defs. Cochise Co. and 24 Ward’s Mot. to Dismiss (Doc. 25). 25 1. Rooker-Feldman 26 The Rooker-Feldman Doctrine precludes a district court from reviewing state court 27 judgments. Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923); District of Columbia 28 Court of Appeals v. Feldman, 450 U.S. 462, 483 (1983); Exxon Mobil Corp. v. Saudi Basic 1 Industries Corp., 544 U.S. 280, 291–92 (2005). The Supreme Court of the United States 2 has held that this doctrine “is confined to cases . . . brought by state-court losers 3 complaining of injuries caused by state-court judgments rendered before the district court 4 proceedings commenced and inviting district court review and rejection of those 5 judgments.” Exxon Mobil Corp., 544 U.S. at 284. The Supreme Court has further 6 recognized that “even though a ‘state-court decision is not reviewable by lower federal 7 courts,’ a ‘statute or rule governing the decision may be challenged in a federal action.’” 8 Reed v. Goertz, 598 U.S. 230, 235 (2023) (quoting Skinner v. Switzer, 562 U.S. 521, 532 9 (2011)). 10 Here, Plaintiff lost in state court when his state court case was dismissed because he 11 failed to show economic loss. Compl. (Doc. 1-2) at 3. Plaintiff now “complain[s] of 12 injuries caused by [the] state-court judgments rendered before th[is] district court 13 proceeding[] commenced and invit[es] district court review and rejection of those 14 judgments.” Exxon Mobil Corp., 544 U.S. at 284. Such a claim falls squarely within the 15 proscriptions of the Rooker-Feldman Doctrine and this Court lacks jurisdiction to hear it. 16 As such, this claim will be dismissed without leave to amend. 17 2. Judicial Immunity 18 It is well-established law that a judicial officer “exercising the authority vested in 19 him” is immune from suit. Stump v. Sparkman, 435 U.S. 349, 355 (1978); see also Crooks 20 v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990). Such judicial immunity extends to civil 21 rights actions alleging constitutional deprivations under Section 1983, Title 42, United 22 States Code. See Stump, 435 U.S. at 356. Furthermore, “[a] judge will not be deprived of 23 immunity because the action he took was in error, was done maliciously, or was in excess 24 of his authority; rather, he will be subject to liability only when he has acted in the ‘clear 25 absence of all jurisdiction.’” Id. at 356–57 (quoting Bradley v. Fisher, 13 Wall. 335, 351 26 (1872)); see also Pierson v. Ray, 386 U.S. 547, 554 (1967). 27 Here, Judge Ward is immune from suit. Judge Ward’s actions of which Plaintiff 28 complains were clearly “function[s] normally performed by a judge” and within his 1 jurisdiction. See Crooks, 913 F.2d at 700. Judge Ward heard evidence and issued rulings 2 in his role as the judicial officer assigned to Plaintiff’s arbitration appeal. Additionally, to 3 the extent Plaintiff seeks Judge Ward’s removal, this case is not the proper forum. “The 4 proper channel for challenging a justice of the peace’s decision or fitness for office is 5 through the state judicial system.” Gorenc v. Bean, 996 F.2d 1224, 1993 WL 230199, at 6 *2 (9th Cir. 1993) (citing A.R.S. §§ 12-124, 22-261-65, 22-371-75; then citing In re 7 Walker, 736 P.2d 790, 791 (Ariz. 1987)). As such, Judge Ward is entitled to absolute 8 judicial immunity and shall be dismissed from this lawsuit. 9 3. Monell Liability 10 “[A] local government may not be sued under § 1983 for an injury inflicted solely 11 by its employees or agents.” Monell v. Dept. of Soc. Services of New York, 436 U.S. 658, 12 694 (1978). “[Section] 1983 c[an]not be interpreted to incorporate doctrines of vicarious 13 liability.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). “Instead, it is when 14 execution of a government’s policy or custom, whether made by its lawmakers or by those 15 whose edicts or acts may fairly be said to represent official policy, inflicts the injury that 16 the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694. 17 Furthermore, “[a] supervisor is only liable for constitutional violations of his subordinates 18 if the supervisor participated in or directed the violations, or knew of the violations and 19 failed to act to prevent them.” Taylor v. List, 880 F.2d 1040 (9th Cir. 1989). The burden 20 is on Plaintiff to “allege facts, not simply conclusions, that show that an individual was 21 personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 22 1193, 1194 (9th Cir. 1998). 23 Here, Plaintiff’s allegations against Cochise County are without sufficient factual 24 content to support a finding of systemic policies in violation of constitutional rights, and 25 are “just the sort of conclusory allegation[s] that the Iqbal Court deemed inadequate.” 26 Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (finding allegations of 27 systemic viewpoint discrimination at the highest levels of the Secret Service without any 28 factual support similarly inadequate). Plaintiff’s speculations are insufficient to meet his 1 burden. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (a complaint must 2 contain factual allegations sufficient “to raise a right to relief above the speculative level”); 3 see also Mann v. City of Tucson, 782 F.2d 790, 793 (9th Cir. 1986) (“Although we must, 4 in general, accept the facts alleged in the complaint as true, wholly vague and conclusory 5 allegations are not sufficient to withstand a motion to dismiss.”). The Court will dismiss 6 this claim for failure to state a claim. 7 4. Leave to Amend 8 “[I]n dismissals for failure to state a claim, a district court should grant leave to 9 amend even if no request to amend the pleading was made, unless it determines that the 10 pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and 11 Liehe, Inc. v. Northern Calif. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). 12 After review of all of Plaintiff’s filings in this case, the Court cannot say with certainty that 13 there is no set of facts that could be alleged sufficient to support a claim against Cochise 14 County or an individual defendant. Accordingly, the Court will grant Plaintiff leave to 15 amend his Complaint. This is not, however, an opportunity to reallege claims that have 16 been fully dismissed herein. 17 Furthermore, an amended complaint supersedes the original Complaint. Ferdik v. 18 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & 19 Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original Complaint 20 is treated as nonexistent. Ferdik, 963 F.2d at 1262. Thus, grounds for relief alleged in the 21 original Petition that are not alleged in an amended petition are waived. King v. Atiyeh, 22 814 F.2d 565, 567 (9th Cir. 1987). 23 24 IV. WARNINGS 25 A. Extensions of Time 26 Plaintiff must seek an extension of time each time he requires additional time, and 27 such motion must be filed prior to the due date of any response. See Fed. R. Civ. P. 6. 28 B. Address Changes 1 Plaintiff must file and serve a notice of a change of address in accordance with Rule 2 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 3 relief with a notice of change of address. Failure to comply may result in dismissal of this 4 action. 5 C. Copies 6 Plaintiff must submit an additional copy of every filing for use by the Court. See 7 LRCiv. 5.4. Failure to comply may result in the filing being stricken without further notice 8 to Plaintiff. 9 D. Possible Dismissal 10 If Plaintiff fails to timely comply with every provision of this Order, including these 11 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 12 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 13 to comply with any order of the Court). 14 15 V. RECOMMENDATION 16 For the reasons delineated above, the Magistrate Judge recommends that the District 17 Court enter an order: 18 (1) DENYING Defendants Cochise County and Judge Trevor Ward’s Motion to 19 Strike Plaintiff’s Improper Sur-Reply (Doc. 33); 20 (2) GRANTING Defendants Cochise County and Judge Trevor Ward’s Motion to 21 Dismiss (Doc. 25); and 22 (3) DISMISSING Plaintiff’s Complaint (Doc. 1) WITH LEAVE TO AMEND. 23 Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil 24 Procedure, any party may serve and file written objections within fourteen (14) days after 25 being served with a copy of this Report and Recommendation. A party may respond to 26 another party’s objections within fourteen (14) days after being served with a copy. Fed. 27 R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. 28 If objections are filed, the parties should use the following case number: CV-24-00262- 1|) TUC-RCC. 2 Failure to file timely objections to any factual or legal determination of the 3|| Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall 4|| send copy of this Report and Recommendation to all parties. 5 6 Dated this 31st day of December, 2024.

8 Go ff Hla _ Enric J. M#kovich 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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