1 WO SM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Darius Johnson Bey, No. CV-23-00477-PHX-MTL (CDB) 10 Plaintiff, 11 v. ORDER 12 State of Arizona, et al., 13 Defendants.
14 15 Plaintiff Darius Johnson Bey brought this pro se civil rights action pursuant to 42 16 U.S.C. § 1983 and Arizona law. Defendants have moved to dismiss the First Amended 17 Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 18 (Docs. 9, 12.) Plaintiff was informed of his rights and obligations to respond (Docs. 11, 19 13), and he opposes the Motions to Dismiss. (Docs. 15, 16.) 20 I. First Amended Complaint 21 In his First Amended Complaint, Plaintiff sues the State of Arizona, the Arizona 22 Department of Administration–Risk Management Division (“ADOA-RMD”), Phoenix 23 Police Department (“PPD”), Arizona Peace Officer Standards & Training Board 24 (“AZPOST”), and PPD Officers Curtis Klusek and Andrea Lamphier. (Doc. 7.) Plaintiff 25 makes the following allegations. On April 24, 2020 at approximately 9:44 a.m., Plaintiff 26 was driving on the I-17 freeway in Phoenix with his child. (Id. at 2.) Plaintiff was stopped 27 and detained by PPD Officer Lewis for no reason and without a warrant. (Id.) Plaintiff 28 informed Officer Lewis of his “constitutionally protected right to travel.” (Id.) Officer 1 Lewis asked Plaintiff for his identification, and Plaintiff complied. (Id.) Officer Lewis 2 took Plaintiff’s ID and called for backup. (Id.) Plaintiff asked Officer Lewis “to get a 3 supervisor,” and Officer Lewis responded that “he was the supervisor.” (Id.) 4 Plaintiff was detained for over an hour, during which, he “was approached by as 5 many as 6 different officers, while other officers gathered behind the plaintiff’s property 6 [and] conspired to take the plaintiff’s property without a warrant.” (Id.) Officers Lamphier 7 and Klusek “antagonize[d] the incident by making threats, and implementing 8 argumentative tactics to deviate the conversation from the constitutional law and their duty 9 of care.” (Id. at 3.) 10 Officer Klusek asked Plaintiff for one of the Supreme Court rulings that Plaintiff 11 was referencing so that he could read it. (Id.) “[A]s Officer Klusek stood in the window 12 reading the [Supreme Court] case . . . , the plaintiff took it upon himself to roll up his 13 window to disengage the antagonizing tactics of the officers” and “tend to his anxious 14 young child who was in the back seat[.]” (Id.) Officer Klusek said, “if you let up this 15 window, I’m going to break it open and drag you out[.]” (Id.) “[B]efore the plaintiff was 16 given a chance to comprehend what was said to him,” Officer Klusek “voluntarily [and] 17 aggressively yanked the plaintiff’s property open and stepped inside” with his “hand over 18 his gun[.]” (Id.) 19 At some point, Plaintiff moved from the driver’s seat to the passenger seat, and “3−4 20 officers . . . forcefully pushed the plaintiff to the car window and door, grabbed the 21 plaintiff’s arm, twisted and lifted his arm in such a way to cause an immediate and extreme 22 uncomfortable shooting pain up and down his arm and back.” (Id.) The officers searched 23 Plaintiff’s property and person, “touching his penis and [reaching] into the plaintiffs’ [sic] 24 pockets taking private property[.]” (Id.) 25 Plaintiff was taken to jail for booking, and when he “continued to invoke his fourth 26 amendment right to privacy, the officers made [Plaintiff’s] handcuffs tighter.” (Id. at 4.) 27 Plaintiff was placed into a cell, still handcuffed, for “at least three hours.” (Id.) After he 28 was fingerprinted, Plaintiff was “forced to sit through multiple excruciating car rides and 1 22 hours in jail population under horrendous conditions[.]” (Id.) A judge eventually 2 dismissed the charges against Plaintiff. (Id.) 3 In Count One, Plaintiff brings a false imprisonment/unlawful detention claim 4 against Defendants PPD and ADOA-RMD. (Id. at 6.) In Count Two, Plaintiff brings an 5 unreasonable search and seizure claim against “defendants on the scene,” presumably 6 Defendants Klusek and Lamphier. (Id.) In Count Three, Plaintiff brings a gross 7 negligence/negligent training claim against Defendants AZPOST and PPD. (Id. at 7.) In 8 Count Four, Plaintiff brings a malicious prosecution claim against Defendants State of 9 Arizona, PPD, AZPOST, and ADOA-RMD. (Id. at 8.) In Count Five, Plaintiff brings a 10 due process claim against all Defendants. (Id. at 9.) In Count Six, Plaintiff brings an 11 assault claim against Defendant Klusek. (Id. at 9–10.) In Count Seven, Plaintiff brings a 12 claim for “personal injuries,” which the Court construes as an excessive force claim. (Id. 13 at 10.) In Count Eight, Plaintiff brings an Eighth Amendment claim for unconstitutional 14 conditions of confinement. (Id. at 11.) In Count Nine, Plaintiff brings a claim for negligent 15 infliction of emotional distress against all Defendants. (Id. at 11–12.) In Count Ten, 16 Plaintiff alleges a battery claim against Defendant Klusek. (Id. at 12.) In Count Eleven, 17 Plaintiff brings a fraudulent misrepresentation claim. (Id.at 13.) In Count Twelve, Plaintiff 18 alleges a claim for “deprivation of rights.” (Id. at 14.) In Count Thirteen, Plaintiff brings 19 a claim for “unlawful incarceration,” against Defendant PPD. (Id.) In Count Fourteen, 20 Plaintiff alleges a claim for “civil rights violation.” (Id. at 15.) Plaintiff seeks 21 compensatory damages, punitive damages, attorney’s fees, and costs. (Id. at 16–18.) 22 Defendants now move to dismiss the First Amended Complaint for failure to state 23 a claim. (Docs. 9, 12.) 24 II. Rule 12(b)(6) Standard 25 Dismissal of a complaint, or any claim within it, for failure to state a claim under 26 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 27 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 28 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 1 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 2 whether a complaint states a claim under this standard, the allegations in the complaint are 3 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 4 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 5 pleading must contain “a short and plain statement of the claim showing that the pleader is 6 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 7 statement need only give the defendant fair notice of what . . . the claim is and the grounds 8 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 9 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 10 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 11 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 12 pleads factual content that allows the court to draw the reasonable inference that the 13 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
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1 WO SM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Darius Johnson Bey, No. CV-23-00477-PHX-MTL (CDB) 10 Plaintiff, 11 v. ORDER 12 State of Arizona, et al., 13 Defendants.
14 15 Plaintiff Darius Johnson Bey brought this pro se civil rights action pursuant to 42 16 U.S.C. § 1983 and Arizona law. Defendants have moved to dismiss the First Amended 17 Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 18 (Docs. 9, 12.) Plaintiff was informed of his rights and obligations to respond (Docs. 11, 19 13), and he opposes the Motions to Dismiss. (Docs. 15, 16.) 20 I. First Amended Complaint 21 In his First Amended Complaint, Plaintiff sues the State of Arizona, the Arizona 22 Department of Administration–Risk Management Division (“ADOA-RMD”), Phoenix 23 Police Department (“PPD”), Arizona Peace Officer Standards & Training Board 24 (“AZPOST”), and PPD Officers Curtis Klusek and Andrea Lamphier. (Doc. 7.) Plaintiff 25 makes the following allegations. On April 24, 2020 at approximately 9:44 a.m., Plaintiff 26 was driving on the I-17 freeway in Phoenix with his child. (Id. at 2.) Plaintiff was stopped 27 and detained by PPD Officer Lewis for no reason and without a warrant. (Id.) Plaintiff 28 informed Officer Lewis of his “constitutionally protected right to travel.” (Id.) Officer 1 Lewis asked Plaintiff for his identification, and Plaintiff complied. (Id.) Officer Lewis 2 took Plaintiff’s ID and called for backup. (Id.) Plaintiff asked Officer Lewis “to get a 3 supervisor,” and Officer Lewis responded that “he was the supervisor.” (Id.) 4 Plaintiff was detained for over an hour, during which, he “was approached by as 5 many as 6 different officers, while other officers gathered behind the plaintiff’s property 6 [and] conspired to take the plaintiff’s property without a warrant.” (Id.) Officers Lamphier 7 and Klusek “antagonize[d] the incident by making threats, and implementing 8 argumentative tactics to deviate the conversation from the constitutional law and their duty 9 of care.” (Id. at 3.) 10 Officer Klusek asked Plaintiff for one of the Supreme Court rulings that Plaintiff 11 was referencing so that he could read it. (Id.) “[A]s Officer Klusek stood in the window 12 reading the [Supreme Court] case . . . , the plaintiff took it upon himself to roll up his 13 window to disengage the antagonizing tactics of the officers” and “tend to his anxious 14 young child who was in the back seat[.]” (Id.) Officer Klusek said, “if you let up this 15 window, I’m going to break it open and drag you out[.]” (Id.) “[B]efore the plaintiff was 16 given a chance to comprehend what was said to him,” Officer Klusek “voluntarily [and] 17 aggressively yanked the plaintiff’s property open and stepped inside” with his “hand over 18 his gun[.]” (Id.) 19 At some point, Plaintiff moved from the driver’s seat to the passenger seat, and “3−4 20 officers . . . forcefully pushed the plaintiff to the car window and door, grabbed the 21 plaintiff’s arm, twisted and lifted his arm in such a way to cause an immediate and extreme 22 uncomfortable shooting pain up and down his arm and back.” (Id.) The officers searched 23 Plaintiff’s property and person, “touching his penis and [reaching] into the plaintiffs’ [sic] 24 pockets taking private property[.]” (Id.) 25 Plaintiff was taken to jail for booking, and when he “continued to invoke his fourth 26 amendment right to privacy, the officers made [Plaintiff’s] handcuffs tighter.” (Id. at 4.) 27 Plaintiff was placed into a cell, still handcuffed, for “at least three hours.” (Id.) After he 28 was fingerprinted, Plaintiff was “forced to sit through multiple excruciating car rides and 1 22 hours in jail population under horrendous conditions[.]” (Id.) A judge eventually 2 dismissed the charges against Plaintiff. (Id.) 3 In Count One, Plaintiff brings a false imprisonment/unlawful detention claim 4 against Defendants PPD and ADOA-RMD. (Id. at 6.) In Count Two, Plaintiff brings an 5 unreasonable search and seizure claim against “defendants on the scene,” presumably 6 Defendants Klusek and Lamphier. (Id.) In Count Three, Plaintiff brings a gross 7 negligence/negligent training claim against Defendants AZPOST and PPD. (Id. at 7.) In 8 Count Four, Plaintiff brings a malicious prosecution claim against Defendants State of 9 Arizona, PPD, AZPOST, and ADOA-RMD. (Id. at 8.) In Count Five, Plaintiff brings a 10 due process claim against all Defendants. (Id. at 9.) In Count Six, Plaintiff brings an 11 assault claim against Defendant Klusek. (Id. at 9–10.) In Count Seven, Plaintiff brings a 12 claim for “personal injuries,” which the Court construes as an excessive force claim. (Id. 13 at 10.) In Count Eight, Plaintiff brings an Eighth Amendment claim for unconstitutional 14 conditions of confinement. (Id. at 11.) In Count Nine, Plaintiff brings a claim for negligent 15 infliction of emotional distress against all Defendants. (Id. at 11–12.) In Count Ten, 16 Plaintiff alleges a battery claim against Defendant Klusek. (Id. at 12.) In Count Eleven, 17 Plaintiff brings a fraudulent misrepresentation claim. (Id.at 13.) In Count Twelve, Plaintiff 18 alleges a claim for “deprivation of rights.” (Id. at 14.) In Count Thirteen, Plaintiff brings 19 a claim for “unlawful incarceration,” against Defendant PPD. (Id.) In Count Fourteen, 20 Plaintiff alleges a claim for “civil rights violation.” (Id. at 15.) Plaintiff seeks 21 compensatory damages, punitive damages, attorney’s fees, and costs. (Id. at 16–18.) 22 Defendants now move to dismiss the First Amended Complaint for failure to state 23 a claim. (Docs. 9, 12.) 24 II. Rule 12(b)(6) Standard 25 Dismissal of a complaint, or any claim within it, for failure to state a claim under 26 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 27 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 28 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 1 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 2 whether a complaint states a claim under this standard, the allegations in the complaint are 3 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 4 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 5 pleading must contain “a short and plain statement of the claim showing that the pleader is 6 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 7 statement need only give the defendant fair notice of what . . . the claim is and the grounds 8 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 9 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 10 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 11 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 12 pleads factual content that allows the court to draw the reasonable inference that the 13 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Where the plaintiff 14 is a pro se prisoner, the court must “construe the pleadings liberally and [] afford the 15 petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 16 Generally, when deciding a Rule 12(b)(6) motion, the court looks only to the face 17 of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, 18 Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner & Co., 19 Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers evidence outside the 20 pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary 21 judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). A court may 22 consider documents incorporated by reference in the complaint or matters of judicial notice 23 without converting the motion to dismiss into a motion for summary judgment. Id. 24 III. Failure to State a Claim 25 A. Defendants PPD, AZPOST, and ADOA-RMD 26 In Arizona, a plaintiff may sue a government entity only if the state legislature has 27 granted that entity the power to sue or be sued. Braillard v. Maricopa Cnty., 232 P.3d 28 1263, 1269 (Ariz. Ct. App. 2010) (dismissing claims against the Maricopa County Sheriff’s 1 Office because it is not a jural entity as no Arizona statute confers on it the ability to sue 2 or be sued). This Court has acknowledged the consensus that Arizona’s municipal law 3 enforcement agencies, including Defendant PPD, are not jural entities. See, e.g., Morton 4 v. Phoenix Police Dep’t, No. CV-15-00405-PHX-BSB, 2015 WL 1737667, at *4 (D. Ariz. 5 Apr. 16, 2015) (holding that the PPD is not a proper defendant in a claim under 6 § 1983) Watson-Nance v. City of Phoenix, No. CV-08-1129-PHX-ROS, 2009 WL 792497, 7 at *9 (D. Ariz. Mar. 24, 2009) (concluding that the PPD is an unauthorized defendant and 8 dismissing it from the lawsuit); Gotbaum v. City of Phoenix, 617 F. Supp. 2d 878, 886 (D. 9 Ariz. 2008) (finding that the PPD is a subpart of the City of Phoenix and not a separate 10 jural entity). Similarly, Defendants AZPOST and ADOA-RMD’s enabling statutes do not 11 allow them to sue in their own names. (See A.R.S. §§ 41-1822 (AZPOST enabling statute), 12 41-621–41-626 (ADOA-RMD enabling statutes).) Therefore, Defendants PPD, AZPOST, 13 and ADOA-RMD must be dismissed as non-jural entities. Because these are the only 14 Defendants named in Counts One, Three, Four, and Thirteen, those counts are dismissed. 15 B. Defendant State of Arizona 16 Plaintiff only seeks damages in this action. (See Doc. 7 at 16−18.) Under the 17 Eleventh Amendment, a state or state agency may not be sued in federal court without its 18 consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. 19 List, 880 F.2d 1040, 1045 (9th Cir. 1989). Although Arizona Revised Statutes § 31- 20 201.01(F) amounts to a waiver of Arizona’s immunity from suit in its own courts, the 21 Supreme Court “consistently has held that a State’s waiver of sovereign immunity in its 22 own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.” 23 Pennhurst, 465 U.S. at 99 n.9. Section 31-201.01(F) contains no express language 24 regarding Arizona’s consent to suit in federal courts and does not overwhelmingly imply 25 that Eleventh Amendment immunity has been waived. See Rodrigues v. Ryan, No. CV 16- 26 08272-PCT-DGC (ESW), 2017 WL 6033784 (D. Ariz. Dec. 6, 2017). Therefore, 27 Plaintiff’s claims against the State of Arizona will be dismissed. See Will v. Michigan 28 Dep’t of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted) (holding that the 1 Eleventh Amendment protects states from being sued for damages in federal court). 2 C. Defendant Lamphier 3 Plaintiff’s vague and conclusory allegation that Defendant Lamphier “antagonize[d] 4 the incident by making threats, and implementing argumentative tactics to deviate the 5 conversation from the constitutional law and their duty of care” is not sufficient to state a 6 constitutional claim. (Doc. 7 at 3.) Verbal threats or abuse, absent more, do not rise to the 7 level of a constitutional violation. Somers v. Thurman, 109 F.3d 614, 624 (9th Cir. 1997); 8 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). If true, Officer Lamphier’s 9 conduct described in the First Amended Complaint is unprofessional. However, it does 10 not violate the Constitution. Absent allegations that specifically link Defendant 11 Lamphier’s conduct to a specific constitutional violation, Plaintiff has failed to state a claim 12 against Defendant Lamphier, and Defendant Lamphier will be dismissed. 13 D. Failure to Link Defendants to Injury 14 To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants 15 (2) under color of state law (3) deprived him of federal rights, privileges, or immunities 16 and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th 17 Cir. 2005) (quoting Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n, 42 F.3d 18 1278, 1284 (9th Cir. 1994)). To sufficiently state a claim, Plaintiff must write short, plain 19 statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) 20 the name of the Defendant who violated the right; (3) exactly what that Defendant did or 21 failed to do; (4) how the action or inaction of that Defendant is connected to the violation 22 of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of 23 that Defendant’s conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Thus, a 24 plaintiff must allege that he suffered a specific injury because of the conduct of a particular 25 defendant and he must allege an affirmative link between the injury and the conduct of that 26 defendant. Id. 27 In Counts Five, Seven, Eight, Nine, Eleven, Twelve, Thirteen, and Fourteen, 28 Plaintiff vaguely refers to unnamed “officers” and unspecified “defendants” without 1 linking any of the alleged constitutional violations to Defendant Klusek, the only 2 Defendant remaining in the action. Plaintiff does not allege that Defendant Klusek was 3 present when these unknown individuals violated his constitutional rights or that Defendant 4 Klusek was in a position to stop them from doing so. Vague and conclusory allegations 5 that unnamed individuals violated a constitutional right are not acceptable and will be 6 dismissed. Therefore, these counts will be dismissed without prejudice. 7 E. Defendant Klusek 8 1. State Law Claims – Notice of Claim 9 Defendants argue that Plaintiff’s state law claims should be dismissed because he 10 failed to serve them with a timely notice of claim. (Doc. 12 at 6–7.) The court may 11 properly consider evidence outside of the complaint in a motion to dismiss if “(1) the 12 complaint refers to the document; (2) the document is central to the plaintiff's claim; and 13 (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder 14 v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). “The court may treat such a document as ‘part 15 of the complaint, and thus may assume that its contents are true for purposes of a motion 16 to dismiss under Rule 12(b)(6).’” Id. (quoting United States v. Ritchie, 342 F.3d 903, 908 17 (9th Cir. 2003)). Otherwise, consideration of the Notice of Claim issue would entail 18 making factual determinations from matters outside the pleadings and would convert the 19 instant 12(b)(6) motion into a motion for summary judgment. Fed. R. Civ. P. 12(d). 20 “‘When the district court transforms a dismissal into a summary judgment proceeding, it 21 must inform a plaintiff who is proceeding pro se that it is considering more than the 22 pleadings and must afford a reasonable opportunity to present all pertinent material.’” 23 Anderson v. Angelone, 86 F.3d 932, 934–35 (9th Cir.1996) (quoting Lucas v. Dep’t of 24 Corrs., 66 F.3d 245, 248 (9th Cir.1995)). Here, Plaintiff attached a “Notice of Intent to 25 File Tort Claim” to the operative First Amended Complaint. (Doc. 7 at 20–32.) The notice 26 of claim is integral to Plaintiff’s state law claims because said claims are barred unless a 27 notice of claim was properly filed, and there is no dispute as to the authenticity of Plaintiff’s 28 attachment. Therefore, the Court will address the notice of claim issue without converting 1 the Motion to Dismiss into a Motion for Summary Judgment. 2 Arizona Revised Statutes § 12-821.01(A) requires that: 3 Persons who have claims against a public entity or a public employee shall file claims with the person or persons 4 authorized to accept service for the public entity or public 5 employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action 6 accrues. The claim shall contain facts sufficient to permit the 7 public entity or public employee to understand the basis upon which liability is claimed. The claim shall also contain a 8 specific amount for which the claim can be settled and the facts 9 supporting that amount. Any claim which is not filed within one hundred eighty days after the cause of action accrues is 10 barred and no action may be maintained thereon. 11 A.R.S. § 12-821.01(A). “When a person asserts claims against a public entity and public 12 employee, the person ‘must give notice of the claim to both the employee individually and 13 to his employer.’” Harris v. Cochise Health Sys., 160 P.3d 223, 230 (Ariz. Ct. App. 2007) 14 (quoting Crum v. Superior Court, 922 P.2d 316, 317 (Ariz. App.1996)) (emphasis in 15 original). Arizona courts have held that plaintiffs who do not strictly comply with these 16 requirements are barred from suing. See Salerno v. Espinoza, 115 P.3d 626, 628 (Ariz. Ct. 17 App. 2005); Harris, 160 P.3d at 230. 18 Defendants argue that “Plaintiff never served Defendant City Defendants or non- 19 party the City of Phoenix with a notice of claim prior to filing the suit, and therefore, 20 Plaintiff’s state law claims are legally barred.” (Doc. 12 at 7.) In response, Plaintiff 21 appears to challenge the validity of the notice-of-claim statute, arguing that Defendants 22 “have no right, authority, or standing in law to create or enforce local or special rule[s] 23 which limit civil actions . . . .” (Doc. 16 at 5.) But Arizona courts have consistently upheld 24 and enforced the notice-of-claim requirement. See, e.g., Deer Valley Unified School Dist. 25 No. 97 v. Houser, 152 P.3d 490, 491 (Ariz. 2007) (dismissing suit for claimant’s failure to 26 strictly comply with A.R.S. § 12-821.01); Pritchard v. State, 788 P.2d 1178, 1183 (Ariz. 27 1990) (compliance with notice-of-claim statute is a “mandatory” and “essential” 28 prerequisite to suit). Moreover, the “Notice of Intent to File Tort Claim” attached to 1 Plaintiff’s First Amended Complaint is signed by Plaintiff and dated June 8, 2022, but there 2 is no documentation showing that the notice was served on both the City of Phoenix and 3 Defendant Klusek as required by law. (See Doc. 7 at 29.) Plaintiff does not dispute that 4 he did not personally serve the Notice of Claim on Defendant Klusek. Accordingly, 5 Plaintiff’s state law claims for assault and battery in Counts Six and 10, respectively, must 6 be dismissed. 7 2. Qualified Immunity – Fourth Amendment Claim 8 Defendants argue that Defendant Klusek is entitled to qualified immunity. (Doc. 12 9 at 4–5.) Government officials are entitled to qualified immunity from civil damages unless 10 their conduct violates “clearly established statutory or constitutional rights of which a 11 reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 12 In deciding if qualified immunity applies, the Court must determine: (1) whether the facts 13 alleged show the defendant’s conduct violated a constitutional right; and (2) whether that 14 right was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 15 223, 230-32, 235-36 (2009) (courts may address either prong first depending on the 16 circumstances in the case). 17 Granting dismissal based on qualified immunity pursuant to a Rule 12(b)(6) motion 18 is only appropriate if the Court can determine from the face of the complaint that qualified 19 immunity applies. Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001); Morley v. 20 Walker, 175 F.3d 756, 761 (9th Cir 1999) (because allegations in a complaint are regarded 21 as true on a motion to dismiss, dismissal based on qualified immunity is inappropriate). 22 The only claim remaining is Plaintiff’s Fourth Amendment unlawful search and 23 seizure claim against Defendant Klusek in Count Two. Plaintiff alleges that when he 24 attempted to roll up his window, Defendant Klusek told him, “If you let up this window, 25 I’m going to break it open and drag you out” and that Defendant Klusek “voluntarily [and] 26 aggressively yanked the plaintiff’s property open and stepped inside” with his “hand over 27 his gun[.]” (Doc. 7 at 3.) Plaintiff alleges that there was no warrant, probable cause, or 28 reasonable suspicion to stop, detain, or arrest him. (Id. at 7.) 1 Defendants argue that Defendant Klusek is entitled to qualified immunity because 2 “stopping a car for speeding” and asking for identification does not violate clearly 3 established law. (Doc. 12 at 5.) However, this argument necessarily requires the Court to 4 consider matters outside of the pleadings, namely, the incident report from Plaintiff’s 5 arrest. Although the incident report was attached to Plaintiff’s original Complaint, Plaintiff 6 did not attach it to the First Amended Complaint, and upon amendment, the Court treats 7 the original Complaint as nonexistent. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 8 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). 9 Resolution of this issue requires factual development to ascertain the events underlying the 10 traffic stop and Plaintiff’s arrest. Such questions cannot be resolved on a motion to dismiss. 11 Therefore, the Court will deny dismissal on qualified immunity grounds without prejudice 12 and with leave to re-assert the argument in a properly filed motion for summary judgment. 13 IV. Claims for Which an Answer will be Required 14 Liberally construed, Plaintiff has stated a Fourth Amendment unlawful search and 15 seizure claim in Count Two against Defendant Klusek, and the Court will require 16 Defendant Klusek to answer this claim. 17 V. Warnings 18 A. Address Changes 19 Plaintiff must file and serve a notice of a change of address in accordance with Rule 20 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 21 relief with a notice of change of address. Failure to comply may result in dismissal of this 22 action. 23 B. Copies 24 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 25 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 26 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 27 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 28 to comply may result in the filing being stricken without further notice to Plaintiff. 1 C. Possible Dismissal 2 If Plaintiff fails to ttmely comply with every provision of this Order, including these 3) warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 4} 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 5 | to comply with any order of the Court). 6| ORDERED: 7 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 8 | Motions to Dismiss (Docs. 9, 12). 9 (2) Defendants ADOA-RMD, AZPOST, and State of Arizona’s Motion to Dismiss (Doc. 9) is granted. 11 (3) Defendants PPD, Lamphier, and Klusek’s Motion to Dismiss (Doc. 12) is denied as to Plaintiff's Fourth Amendment unlawful search and seizure claim against 13 | Defendant Klusek, and the Motion to Dismiss is otherwise granted. 14 (4) Defendants ADOA-RMD, AZPOST, State of Arizona, are PPD dismissed 15 | with prejudice, and Officer Lamphier is dismissed without prejudice. 16 (5) Counts One, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, 17 | Twelve, Thirteen, and Fourteen are dismissed without prejudice. 18 (6) Defendant Klusek must answer Count Two. 19 (7) This matter remains referred to Magistrate Judge Camille D. Bibles pursuant 20 | to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 21 authorized under 28 U.S.C. § 636(b)(1). 22 Dated this 11th day of October, 2023. 23 Michal T. Hbhurdle Michael T. Liburdi 26 United States District Judge 27 28