Darren Karr v. Jennifer Maitra, et al.

• Court: District Court, D. Arizona
• Decided: December 1, 2025
• Docket: 2:25-cv-00317
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Darren Karr, No. CV-25-00317-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Jennifer Maitra, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s First 16 Amended Complaint (“FAC”) (Doc. 16) and Plaintiff’s Motion for Leave to File a Second 17 Amended Complaint (Doc. 23) and accompanying Proposed Second Amended Complaint 18 (“PSAC”) (Doc. 25). For the following reasons, the Court grants Defendants’ Motion and 19 denies Plaintiff’s Motion. 20 I. BACKGROUND 21 The FAC alleges as follows. On February 2, 2023, Plaintiff sought medical 22 treatment at Village Medical from Dr. Jennifer Maitra for severe hip pain. (Doc. 7 at 2.) 23 Dr. Maitra “failed to provide adequate medical care, refused to prescribe pain relief, and 24 delayed a referral to a specialist.” (Id. at 3.) The next day, Plaintiff experienced “extreme 25 pain,” “was immobile,” and “had to seek emergency medical care at the ER.” (Id.) A few 26 weeks later, Plaintiff retrieved his medical records and discovered that Dr. Maitra 27 administered a drug test without Plaintiff’s knowledge. (Id.) Plaintiff also discovered that 28 he “had been prescribed a statin drug that damaged [his] leg” and “was never warned of 1 the side effects.” (Id.) Additionally, Plaintiff “discovered that Dr. Maitra had diagnosed 2 [him] with depression, alcoholism, and obesity” but did not inform him of these diagnoses 3 or provide a “plan of action or treatment.” (Id.) 4 The FAC then provides: “On or around June 12, 2024, attorneys Megan Gailey 5 and/or Kelley Jancaitis—refused service of a complaint on multiple occasions, despite 6 having previously instructed [Plaintiff] that service should be directed to the firm and not 7 to Dr. Maitra or her office.”1 (Id.) Then, the FAC provides that on March 26, 2024, Gailey 8 “provided a characterization of statutory law to the Court that was materially misleading.” 9 (Id.) Accordingly, Plaintiff filed a complaint with the Arizona State Bar Association, 10 which was dismissed “without investigation or further action.” (Id.). Plaintiff’s appeal of 11 that decision was also dismissed. (Id.) Then, in January 2025, Jancaitis “failed to serve 12 [Plaintiff] a court document as required by law.” (Id.) The FAC next provides that “[o]n 13 June 14, 2024, Ms. Jancaitis also provided [Plaintiff] with legal advice, which [Plaintiff] 14 believe[s] was in violation of Arizona law.” (Id.) 15 The FAC then states that in January 2025, Judge Michael D. Gordon “engaged in 16 misconduct that deprived [Plaintiff of his] constitutional rights, including due process and 17 equal protection.”2 (Id. at 3–4.) The FAC provides that Judge Gordon wrongfully 18 dismissed Plaintiff’s case, misapplied state law, and blocked Plaintiff’s “ability to seek 19 justice.” (Id. at 4.) “These actions suggest judicial bias and possible collusion, shielding 20 the defendants from accountability and violating judicial ethics.” (Id.) 21 The FAC concludes by noting that in February 2025, Plaintiff “made a good faith 22 attempt to resolve this matter by contacting the Jenifer Maitra and her legal counsel to

23 1 The FAC provides that Gailey and Jancaitis are attorneys for the law firm of Broening Oberg Woods & Wilson, PC (“Broening”). (Doc 7 at 2.) Based on other briefing in this 24 case, it appears Broening represented Dr. Maitra in three lawsuits filed by Plaintiff against her in state court. (Doc 16 at 2.) However, the FAC fails to make this clear or otherwise 25 explain how the allegations against Gailey and Jancaitis are related to the allegations against Dr. Maitra and Village Medical. 26 2 The FAC provides that Judge Gordon “is a judge in in the Arizona state court system whose rulings violated Plaintiff’s due process rights.” (Doc. 7 at 2.) Based on other 27 briefing in this case, it appears Judge Gordon presided over Plaintiff’s state court cases. (Doc. 16-5 at 1.) However, the FAC fails to make this point or directly explain how the 28 allegations against Judge Gordon are related to the allegations against Dr. Maitra and Village Medical. 1 propose a settlement outside of court.” (Id.) The “outreach was ignored, and no effort was 2 made by the Defendants to engage in meaningful settlement discussions.” (Id.) Finally, 3 Plaintiff “believe[s] the actions of some or all of the defendants were politically 4 motivated.” (Id.) Based on the foregoing, Plaintiff sues Dr. Maitra, Village Medical, 5 attorneys Gailey and Jancaitis, and Judge Gordon for violations of “42 U.S.C. § 1985(3), 6 § 1983, and federal anti-fraud laws.”3 (Id.) 7 Thereafter, Defendants moved to dismiss the FAC for failure to state a claim. (Doc. 8 16). In response, Plaintiff motioned for leave to file a Second Amended Complaint and 9 filed a Proposed Second Amended Complaint (“PSAC”).4 (Doc. 23.) 10 II. LEGAL STANDARD 11 A. Rule 15(a)(2) 12 Rule 15(a)(2) provides: “The court should freely give leave when justice so 13 requires.” However, leave to amend is inappropriate if “the proposed amendment either 14 lacks merit or would not serve any purpose because to grant it would be futile in saving the 15 plaintiff’s suit.” Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 458, 459 (9th Cir. 16 1986). Therefore, “a district court should grant leave to amend even if no request to amend 17 the pleading was made, unless it determines that the pleading could not possibly be cured 18 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 19 (citation modified). While the Court enjoys discretion, it “must be guided by the 20 underlying purpose of Rule 15—to facilitate decision on the merits rather than on the 21 pleadings or technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) 22 (citation modified). 23 The Court considers five factors when determining whether to grant leave to amend: 24 3 Plaintiff also sued the Arizona State Bar Association, but the Court granted Plaintiff’s 25 request to dismiss it from this case. (Doc. 31 at 1.) 4 Plaintiff filed his Motion pursuant to Federal Rule of Civil Procedure (“Rule”) 15(a)(2) 26 which provides that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” (Doc. 23 at 1.) However, Plaintiff erroneously maintains 27 that he has a right to amend the FAC pursuant to Rule 15(a)(1)(B) which provides that a “party may amend its pleading once as a matter of course . . . 21 days after service of a 28 motion under Rule 12(b).” Plaintiff filed his Motion on June 3, 2025, which was more than twenty-one days after Defendants filed its Motion on May 9, 2025. 1 “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of 2 amendment; and (5) whether plaintiff has previously amended his complaint.” Allen v. 3 City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.1990). “[A] district court does not abuse 4 its discretion in denying a motion to amend where the movant presents no new facts but 5 only new theories and provides no satisfactory explanation for his failure to fully develop 6 his contentions originally.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). 7 B. Rule 12(b)(6) 8 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 9 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 10 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 11 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 12 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 13 47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court 14 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 15 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 16 cause of action, supported by mere conclusory statements, do not suffice.” Id. 17 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 18 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 19 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 20 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 21 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 22 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 23 “probability,” but requires “more than a sheer possibility that a defendant has acted 24 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a 25 defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’” 26 Id. (quoting Twombly, 550 U.S. at 557). 27 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded factual allegations 28 are taken as true and construed in the light most favorable to the nonmoving party. Cousins 1 v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 2 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 3 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 4 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 5 outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See United States 6 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider 7 materials—documents attached to the complaint, documents incorporated by reference in 8 the complaint, or matters of judicial notice—without converting the motion to dismiss into 9 a motion for summary judgment.” Id. at 908. 10 III. DISCUSSION 11 The Court first evaluates the PSAC. The Court then evaluates Defendant’s Motion 12 to Dismiss. 13 A. Motion for Leave to Amend 14 Plaintiff seeks to amend the FAC “to clarify factual allegations, streamline claims, 15 address issues raised in Defendants’ Motion to Dismiss, and remove certain defendants.” 16 (Doc. 23 at 2.) The PSAC drops Judge Gordon as a defendant, leaving Dr. Maitra, Village 17 Medical, and attorneys Gailey and Jancaitis. (Doc. 25 at 1.) The PSAC retains the § 1983 18 claim, drops the § 1985 and federal anti-fraud claims, and adds the following six state law 19 claims: (1) violation of Plaintiff’s right to informed consent under title 36, section 36-2271 20 of the of the Arizona Revised Statutes (“§ 36-2271”); (2) assault and battery; 21 (3) intentional infliction of emotional distress (“IIED”); (4) fraudulent misrepresentation; 22 (5) abuse of process; and (6) negligent supervision. (Id. at 18–21.) Defendant argues that 23 amendment would be futile. (Doc. 28 at 1.) The Court agrees. 24 1. Failure to Adhere to Local Rules 25 At the outset, the Court notes that Plaintiff did not follow Local Rule of Civil 26 Procedure 15.1(a), which provides: A party who moves for leave to amend a pleading must attach a copy of the 27 proposed amended pleading as an exhibit to the motion, which must indicate 28 in what respect it differs from the pleading which it amends, by bracketing 1 or striking through the text to be deleted and underlining the text to be added. 2 The PSAC fails to indicate “in what respect it differs from the” FAC and instead 3 fundamentally reworks almost the entire FAC. This failure alone justifies denying 4 Plaintiff’s Motion. See Tri-Valley CARES v. U.S. Dep’t of Energy, 671 F.3d 1113, 1131 5 (9th Cir. 2012) (“Denial of a motion as the result of a failure to comply with local rules is 6 well within a district court's discretion.”). Still, the PSAC also suffers from the following 7 defects. 8 2. The § 1983 Claim 9 Turning to the substance of the PSAC, the Court begins with the § 1983 claim. To 10 state a § 1983 claim, “a plaintiff must ‘plead that (1) the defendants acted under color of 11 state law and (2) deprived plaintiff of rights secured by the Constitution or federal 12 statutes.’” WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc) 13 (quoting Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986)). It would be futile 14 to allow the PSAC to amend the § 1983 claim because it would not survive a motion to 15 dismiss. See Amyndas Pharms., S.A. v. Zealand Pharma A/S, 48 F.4th 18, 40 (1st Cir. 16 2022) (“Whether a proposed amendment is futile is gauged by reference to the liberal 17 criteria of Federal Rule of Civil Procedure 12(b)(6).” (citation modified)). The PSAC does 18 not establish that either Dr. Maitra, Village Medical, Gailey, or Jancaitis acted under the 19 color of state law. 20 The PSAC acknowledges that the foregoing parties are private actors. (Doc. 25 21 at 5.) Private actors can only be said to be state actors in limited circumstances. See 22 Children’s Health Def. v. Meta Platforms, Inc., 112 F.4th 742, 755 (9th Cir. 2024) 23 (outlining the tests used to determine when a private party is state actor). The PSAC fails 24 to establish that the mentioned Defendants “exercised power ‘possessed by virtue of state 25 law and made possible only because the wrongdoer is clothed with the authority of state 26 law.’” Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 748 (9th Cir. 2020) (quoting 27 West v. Atkins, 487 U.S. 42, 49 (1988)). Instead, the PSAC merely alleges that the 28 Defendants used and exploited state processes. (Doc. 25 at 5.) However, the mere use of 1 “state processes” is insufficient to establish “that the State is responsible for the specific 2 conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) 3 (emphasis in original). The PSAC thus fails to state a § 1983 claim. 4 3. State Law Claims 5 The Court next turns to the PSAC’s remaining state law claims. The Court finds 6 that allowing Plaintiff to file the PSAC is inappropriate for three reasons. First, Plaintiff 7 does not offer an adequate explanation as to why the PSAC includes six new state law 8 claims that were not present in either the Complaint or FAC. Second, without the § 1983 9 claim, the PSAC only includes state law claims which raises jurisdictional concerns. Third, 10 many of the state law claims are patently futile. 11 a. Previous Amendment 12 To start, Plaintiff already amended his complaint, which weighs against this Court 13 granting leave to amend. See in re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 14 716, 738 (9th Cir. 2013). The Ninth Circuit provides that “[l]ate amendments to assert new 15 theories are not reviewed favorably when the facts and the theory have been known to the 16 party seeking amendment since the inception of the cause of action.” Id. (citation 17 modified). Here, Plaintiff did not raise any of the state law claims in either his Complaint 18 or FAC. Additionally, Plaintiff fails to acknowledge or explain why he did not bring the 19 state law claims in either the Complaint or FAC. While the PSAC provides more factual 20 clarity—at least when compared to the FAC—it does not raise any new facts justifying the 21 late addition of six new state law claims. 22 b. Jurisdictional Issues 23 Additionally, the Court would lack original jurisdiction over the case without the 24 § 1983 claim. District courts have original jurisdiction over “all civil actions arising under 25 the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Where original 26 jurisdiction exists, the court also has “supplemental jurisdiction over all other claims that 27 are so related to claims in the action within such original jurisdiction that they form part of 28 the same case or controversy.” Id. § 1367(a). District courts also have diversity 1 jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value 2 of $75,000 . . . and is between . . . citizens of different States.” Id. § 1332(a)(1). 3 Here, the Court would only have original jurisdiction over the § 1983 claim, which 4 would give the Court supplemental jurisdiction over the state law claims. Without the 5 § 1983 claim, the PSAC only contains state law claims between non-diverse parties. “A 6 district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed all 7 claims over which it has original jurisdiction.’” Sanford v. MemberWorks, Inc., 625 F.3d 8 550, 561 (9th Cir. 2010) (quoting 28 U.S.C. § 1367(c)(3)). “In the usual case in which all 9 federal-law claims are eliminated before trial, the balance of factors to be considered under 10 the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and 11 comity—will point toward declining to exercise jurisdiction over the remaining state-law 12 claims.” Id. (citation modified). The Court finds these concerns exacerbated where the 13 remaining state law claims were neither raised in the Complaint nor the FAC. Accordingly, 14 the Court would not exercise supplement jurisdiction over the state law claims. 15 c. Futility 16 Finally, many of Plaintiff’s state law claims are futile 17 i. Informed Consent Violation Under § 36-2271 18 Plaintiff claims that Dr. Maitra violated Plaintiff’s right to informed consent under 19 § 36-2271. Plaintiff’s claim fails because § 36-2271 is plainly inapplicable in this case. 20 That statute requires written consent before surgery is performed on a minor. See 21 § 36-2271. Thus, the PSAC’s § 36-2271 claim is futile. 22 ii. Intentional Infliction of Emotional Distress 23 Plaintiff’s IIED claim is similarly futile. Under Arizona law, “one who by extreme 24 and outrageous conduct intentionally or recklessly causes severe emotional distress to 25 another is subject to liability for such emotional distress, and if bodily harm to the other 26 results from it, for such bodily harm.” Godbehere v. Phx. Newspapers, Inc., 783 P.2d 781, 27 785 (Ariz. 1989) (citation modified). IIED has three elements: (1) “the conduct by the 28 defendant must be ‘extreme’ and ‘outrageous’”; (2) “the defendant must either intend to 1 cause emotional distress or recklessly disregard the near certainty that such distress will 2 result from his conduct”; and (3) “severe emotional distress must indeed occur as a result 3 of defendant’s conduct.” Citizen Publ’g Co. v. Miller, 115 P.3d 107, 110 (Ariz. 2005) 4 (quoting Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. 1987)). 5 Plaintiff claims that “Defendants’ conduct—false diagnoses, denied care, Gailey’s 6 deliberate refusal to correct her known lie after April 2, 2024, notification, undeniable 7 contradictory filings across state and federal courts, and exploitation of the court’s failure 8 to uphold pro se protections—was extreme and outrageous, causing severe emotional 9 distress.” (Doc. 25 at 18.) 10 Plaintiff fails to plausibly allege an IIED claim. To start, Plaintiff’s allegation that 11 he suffered from “severe emotional distress” is too conclusory to satisfy the third element 12 of an IIED claim. Plaintiff does not describe his emotional distress beyond labeling it as 13 “severe.” See Wray v. Greenburg, 646 F. Supp. 3d 1084, 1108 (D. Ariz. 2022) (“Here, the 14 most glaring defect in the [complaint] is the absence of factual allegations describing 15 Plaintiffs’ emotional distress.”). Additionally, Plaintiff fails to allege that any Defendant 16 either intended, or recklessly procured, his emotional distress. Finally, the Court questions 17 whether Defendants’ alleged conduct is “so outrageous in character, and so extreme in 18 degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, 19 and utterly intolerable in a civilized community.” See Ford, 734 P.2d at 585 (citation 20 modified). Thus, the PSAC’s IIED claim is futile. 21 iii. Fraudulent Misrepresentation 22 Plaintiff’s fraudulent misrepresentation claim is also futile. Under Arizona law, 23 claimants prove fraudulent misrepresentation by showing the following: “(1) A representation; (2) its falsity; (3) its materiality; (4) the speaker’s 24 knowledge of its falsity or ignorance of its truth; (5) his intent that it should 25 be acted upon by the person and in the manner reasonably contemplated, (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his 26 right to rely thereon; (9) his consequent and proximate injury.” 27 Carrel v. Lux, 420 P.2d 564, 568 (Ariz. 1966) (quoting Moore v. Meyers, 253 P. 626, 628 28 (Ariz. 1927). 1 Although unclear, it appears that the gravamen of Plaintiff’s fraudulent 2 misrepresentation claim is that Defendants’ actions resulted in his state court cases being 3 dismissed. (Doc. 25 at 19.) Plaintiff alleges that Gailey knowingly misrepresented 4 Arizona statutory and case law in state court. (Id.) Plaintiff further alleges that “Maitra’s 5 false diagnoses, uncorrected by Village Medical, furthered this fraud.” (Id.) 6 Plaintiff’s bare allegations that Defendants committed fraud based on arguments 7 made in state court is too conclusory to adequately plead fraudulent misrepresentation. 8 While the PSAC roughly identifies allegedly false representations, it fails to touch upon 9 any facts relevant to the remaining elements of a fraudulent misrepresentation claim. In 10 particular, Plaintiff fails to adequately identify whether the state court judge relied on those 11 statements in issuing his rulings. Additionally, Plaintiff fails to identify what injury he 12 sustained as a result of the purported misstatements. Even assuming Plaintiff’s claimed 13 injury is the fact his cases in state court were dismissed, those cases were dismissed without 14 prejudice. (Doc. 16-5 at 1, 5.) Plaintiff has not cited any authority demonstrating that a 15 case being dismissed without prejudice, as is the case here, is sufficient to constitute an 16 injury for purposes of a fraudulent misrepresentation claim. Thus, the PSAC’s fraudulent 17 misrepresentation claim is futile. 18 iv. Abuse of Process 19 Plaintiff’s abuse of process claim is similarly futile. “[T]o establish a claim for 20 abuse of process there must be a showing that the defendant has (1) used a legal process 21 against the plaintiff; (2) primarily to accomplish a purpose for which the process was not 22 designed; and, (3) harm has been caused to the plaintiff by such misuse of process.” 23 Nienstedt v. Wetzel, 651 P.2d 876, 881 (Ariz. Ct. App. 1982). 24 Again, it is unclear what the gravamen of Plaintiff’s abuse of process claim is. It 25 appears Plaintiff argues that Defendants abused process by filing a motion to dismiss with 26 misrepresentations in it to secure dismissal of Plaintiff’s state court claims. (Doc. 25 at 19.) 27 Even assuming this is what the PSAC intends to allege, it cannot sustain an abuse of process 28 claim. 1 Plaintiff does not clearly identify what legal process Defendants used against him. 2 Plaintiff merely claims that Defendants engaged in “a willful misuse of process to secure 3 dismissal.” (Id.) As noted, there were multiple cases between Plaintiff and Maitra, so it is 4 unclear what case Plaintiff is referring to. However, seeking dismissal, by itself, is not an 5 abuse of process. Instead, Plaintiff must allege that Defendants used the judicial process 6 “for an ulterior purpose not proper in the regular conduct of the proceedings.” Nienstedt, 7 651 P.2d at 881. Plaintiff fails to do so here. And again, Plaintiff has not cited any 8 authority demonstrating that a case being dismissed without prejudice pursuant to a motion 9 to dismiss, as is the case here, is sufficient to constitute an injury for purposes of an abuse 10 of process claim. Thus, the PSAC’s abuse of process claim is futile. 11 v. Assault and Battery 12 Plaintiff’s assault and battery claims are also futile. Under Arizona law, “[a]n actor 13 is subject to liability to another for battery if the actor intentionally engages in an act that 14 results in harmful or offensive contact with the person of another.” Duncan v. Scottsdale 15 Med. Imaging, Ltd., 70 P.3d 435, 438 (Ariz. 2003). “Similarly, to succeed on an assault 16 claim a plaintiff must prove that the defendant acted with intent to cause another harmful 17 or offensive contact or apprehension thereof, and the other person apprehended imminent 18 contact.” Lewis v. Dirt Sports LLC, 259 F. Supp. 3d 1039, 1044 (D. Ariz. 2017) (citation 19 modified). “The two claims are the same except that assault does not require the offensive 20 touching or contact.” Id. (quoting Garcia v. United States, 826 F.2d 806, 809 n.9 (9th Cir. 21 1987)). 22 Plaintiff contends that Dr. Maitra committed either assault or battery based on: 23 (1) conducting an unauthorized drug test; (2) failing to mitigate Plaintiff’s pain; and 24 (3) prescribing a statin without providing warnings of the drugs side effects. (Doc. 25 25 at 18.) It does not appear that Plaintiff is asserting an assault or battery claim against any 26 other Defendant. 27 The PSAC’s assault and battery claims are too conclusory to plausibly state a claim 28 for relief. To start, it is unclear, and Plaintiff cites no authority suggesting, that Dr. Maitra’s 1 alleged failure to mitigate Plaintiff’s pain constitutes either assault or battery. Simply, 2 Plaintiff does not link this alleged failure to any harmful or offensive contact. Nor does 3 Plaintiff link this alleged failure to any intention to cause harmful or offensive contact. 4 Similarly, Plaintiff does not cite any authority suggesting that the failure to warn of certain 5 side effects constitutes either assault or battery. Finally, Plaintiff’s allegations pertaining 6 to the drug test are too bare to adequately plead either an assault or battery claim. Thus, 7 the PSAC’s assault and battery claims are futile. 8 vi. Negligent Supervision 9 Finally, Plaintiff’s negligent supervision claim is futile. Under Arizona law, 10 claimants prove negligent supervision by demonstrating that an “employer knew or should 11 have known that a surgeon was not competent to provide certain care and that the 12 employer’s failure to supervise the surgeon caused injury to the plaintiff.” Rice v. Brakel, 13 310 P.3d 16, 21 (Ariz. Ct. App. 2013) (citation modified). Plaintiff’s claim is futile because 14 “[f]or an employer to be held liable for the negligent hiring, retention, or supervision of an 15 employee, a court must first find that the employee committed a tort.” Kuehn v. Stanley, 16 91 P.3d 346, 352 (Ariz. Ct. App. 2004). For the reasons stated, the PSAC fails to 17 adequately allege that Dr. Maitra committed a tort. Thus, the PSAC’s negligent 18 supervision claim is futile. 19 At bottom, all of Plaintiff’s proposed claims are subject to dismissal under Rule 20 12(b)(6). Accordingly, the Court denies Plaintiff’s Motion. 21 B. Motion to Dismiss 22 The Court now consider Defendants’ Motion to Dismiss the FAC (Doc. 16). As 23 noted, the FAC asserts claims under § 1983, § 1985(3), and “federal anti-fraud laws.” 24 (Doc. 7 at 4.) The Court first addresses Defendants’ argument that the FAC should be 25 dismissed under res judicata. The Court then assesses each of Plaintiff’s claims in turn. 26 1. Res Judicata 27 Plaintiff argues that the FAC should be dismissed under res judicata because 28 Plaintiff litigated similar claims against Dr. Maitra in state court. To determine whether 1 state court decisions can have preclusive effect, federal courts apply that state’s laws. See 2 Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007). Plaintiff’s state court cases 3 were dismissed without prejudice. (Doc. 16-5 at 1, 5.) Accordingly, res judicata does not 4 apply because in Arizona, “[t]he clear weight of authority is that dismissal ‘without 5 prejudice’ has no res judicata effect.” Oldenburger v. Del E. Webb Dev. Co., 765 P.2d 6 531, 535 (Ariz. Ct. App. 1988); see also Union Interchange, Inc. v. Van Aalsburg, 432 7 P.2d 589, 592 (Ariz. 1967) (“A dismissal without prejudice does not go to the merits of the 8 plaintiff’s cause and does not bar plaintiff from later filing on the same cause of action.”). 9 Accordingly, the Court assesses whether the FAC states a claim for relief, beginning with 10 the § 1983 claim. 11 2. § 1983 12 The FAC’s § 1983 claim fails as to Defendants Maitra, Gailey, Jancaitis, and 13 Village Medical. The FAC suffers from the same defects the Court identified in the 14 PSAC—the FAC fails to adequately allege that these Defendants are state actors. 15 However, unlike the PSAC, the FAC also asserts a § 1983 claim against Judge Gordon. 16 This claim fails. Judges are immune from § 1983 claims for functions “normally 17 performed by a judge” such as the issuance of court orders, as is alleged here. See Stump 18 v. Sparkman, 435 U.S. 349, 362–64 (1978). The FAC neither includes any facts, nor does 19 Plaintiff make any argument, suggesting that judicial immunity is inapplicable here. 20 Accordingly, the FAC fails to state § 1983 claim against Defendants and is dismissed with 21 prejudice. 22 3. § 1985(3) 23 The FAC’s § 1985(3) claim also fails as to all Defendants. Section 1985(3) 24 “prohibits two or more persons from conspiring to deprive any person or class of persons 25 of the equal protection of the law.” 5 Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1141 (9th

26 5 The Court assumes Plaintiff does not bring a claim under either § 1985(1) or (2) because neither is remotely implicated. Section 1985(1) “extend[s] exclusively to the benefit of 27 federal officers.” Canlis v. San Joaquin Sheriff’s Posse Comitatus, 641 F.2d 711, 717 (9th Cir. 1981). Section 1985(2) “proscribes conspiracies ‘to deter, by force, intimidation, or 28 threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such 1 Cir. 2000). “The elements of a § 1985(3) claim are: (1) the existence of a conspiracy to 2 deprive the plaintiff of the equal protection of the laws; (2) an act in furtherance of the 3 conspiracy and (3) a resulting injury.” Id. Additionally, claims under § 1985(3) require 4 “racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the 5 conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); see also Manistee 6 Town Ctr. v. City of Glendale, 227 F.3d 1090, 1095 (9th Cir. 2000) (“A cause of action 7 under the first clause of § 1985(3) cannot survive a motion to dismiss absent an allegation 8 of class-based animus.”). 9 It is unclear what Plaintiff’s § 1985(3) claim is. Plaintiff merely alleges that Gailey 10 “engaged in . . . conspiracy to deprive Plaintiff of his legal rights” and that Defendants 11 were motivated by discriminatory animus. (Doc. 7 at 2.) These bare allegations are 12 insufficient to plead a § 1985(3) claim. Plaintiff’s bald assertion that Gailey engaged in 13 conspiracy is insufficient to adequately plead that “two or more persons” conspired to 14 deprive Plaintiff of equal protection of the law. See § 1985(3). Additionally, Plaintiff does 15 not point to any authority suggesting that a case being dismissed without prejudice 16 constitutes a deprivation of equal protection of the law for purposes of a § 1985(3) claim. 17 Finally, even if political animus can give rise to a § 1985(3) claim, the FAC’s bare 18 allegation that “defendants were politically motivated” is insufficient to plausibly establish 19 such animus. Accordingly, the FAC fails to state § 1985(3) claim and is dismissed with 20 prejudice. 21 4. “Federal Anti-Fraud Laws” 22 Finally, Plaintiff alleges that Defendants violated “federal anti-fraud laws.” (Doc. 23 7 at 4.) While it is unclear what laws the FAC is referring to, the FAC does allege that Dr. 24 Maitra engaged in “Medicare fraud.” (Id. at 2.) While unclear, this claim might be 25 animated by 18 U.S.C. § 1347, a criminal law forbidding defrauding Medicare. However, 26 Plaintiff, as a private citizen, cannot enforce this statute. See Linda R.S. v. Richard D., 410 27 U.S. 614, 619 (1973) (“[I]n American jurisprudence . . . a private citizen lacks a judicially

28 party or witness in his person or property on account of his having so attended or testified.’” Head v. Wilkie, 936 F.3d 1007, 1010 (9th Cir. 2019) (quoting § 1985(2)). 1 || cognizable interest in the prosecution or nonprosecution of another.”). Accordingly, the || FAC fails to state a claim for violation of federal anti-fraud laws and is dismissed with || prejudice. 4] IV. CONCLUSION 5 Accordingly, 6 IT IS HEREBY ORDERED denying Plaintiff's Motion for Leave to File Second || Amended Complaint (Doc. 23). 8 IT IS FURTHER ORDERED granting Defendants’ Motion to Dismiss Plaintiffs || FAC (Doc. 16) and dismissing this case with prejudice. 10 IT IS FURTHER ORDERED directing the Clerk of Court to enter final judgment and terminate this case. 12 Dated this 1st day of December, 2025. 13 Se . ~P 14 SO 15 Alonorable Susan V [. Brnovich United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28

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