James v. Peoria, City of

• Court: District Court, D. Arizona
• Decided: January 22, 2020
• Docket: 2:19-cv-02069
• Status: Unknown

Opinion

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

9 Joseph E James, Jr., No. CV-19-02069-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 City of Peoria, et al.,

13 Defendants. 14 15 Plaintiff filed his First Amended Complaint (Doc. 24) on November 8, 2019, after 16 this Court dismissed his prior Complaint with leave to amend (Doc. 23). Before the Court 17 is Defendants’ Motion to Dismiss the First Amended Complaint, filed on November 27, 18 2019. (Doc. 25.) The Response to the Motion to Dismiss was due on December 17, 2019. 19 Plaintiff Joseph E. James missed that deadline. On December 30, 2019, the Court warned 20 Plaintiff that the Motion to Dismiss is a dispositive one and that failure to respond to it by 21 January 10, 2020, might result in dismissal of the case pursuant to Local Rule 7.2(i). 22 (Doc. 26.) On January 10, 2020, Plaintiff filed a Response that did not provide additional 23 substantive legal arguments but instead stressed the importance of allowing a jury to 24 decide the case. (Doc. 27.) Defendants filed their reply brief on January 21, 2020. (Doc. 25 28.) Thus, the Motion is fully briefed. 26 Despite the lack of legal argument in the Response, the Court nonetheless 27 evaluated the merits of the First Amended Complaint to determine whether it contained 28 any theories, which if liberally construed in Plaintiff’s favor, could be pursued without 1 futility. The Court could not find any such theory. The Court has already recited the 2 essential factual findings in its prior Order (Doc. 23 at 1-2) and relies on them here since 3 the First Amended Complaint did not provide any additional legally significant facts. For 4 the reasons expressed herein, the Court grants Defendants’ Motion to Dismiss all claims 5 with prejudice. 6 I. LEGAL STANDARD 7 The Federal Rules of Civil Procedure allow a court to dismiss a case when 8 Plaintiff fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). 9 On a Motion to Dismiss for failure to state a claim, the Court must accept Plaintiff’s 10 allegations in the Complaint as true so long as they plausibly state “sufficient allegations 11 of underlying facts to give fair notice and to enable the opposing party to defend itself 12 effectively.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014) (quoting Eclectic 13 Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014)). 14 However, “[t]he Court is not required to accept as true allegations that are merely 15 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Khoja v. 16 Orexigen Therapeutics, Inc., 899 F.3d 988, 1008 (9th Cir. 2018) (internal marks omitted). 17 “A pleading that offers . . . naked assertions devoid of further factual enhancement” does 18 not state a claim “that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 19 (2009) (internal marks omitted). 20 “Although leave to amend a deficient complaint shall be freely given when justice 21 so requires . . . leave may be denied if amendment of the complaint would be futile.” 22 Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010). “An amendment 23 is futile when no set of facts can be proved under the amendment to the pleadings that 24 would constitute a valid and sufficient claim or defense.” Missouri ex rel. Koster v. 25 Harris, 847 F.3d 646, 656 (9th Cir. 2017) (internal marks omitted). 26 II. COUNT ONE § 1983 – VIOLATION OF CIVIL RIGHTS 27 In Count One of his First Amended Complaint, Plaintiff argues that the City of 28 Peoria is subject to liability because it, “by policy and custom, set up a police 1 organization to service citizens,” and the police department treated him with indifference 2 on three occasions by not responding to his requests for assistance in a satisfactory 3 manner. (Doc. 24 at 7, ¶¶6-7.) Plaintiff does not cite a constitutional or statutory right that 4 the alleged indifference violates,1 but the Court construes this as a substantive due 5 process claim. This argument appears to be an attempt to bring the Complaint into the 6 scope of Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), 7 which rejects vicarious liability for the acts of municipal employees and recognizes § 8 1983 liability when the injury was caused by the execution of a government policy or 9 custom. Id. at 694. However, a policy of indifference that allows a private actor to 10 “inflict[] harm to plaintiff and his property” (Doc. 24. at 8, ¶10) is not a cognizable claim 11 under the Fourteenth Amendment’s Due Process Clause absent an affirmative 12 government act that creates the danger that injured the plaintiff. See DeShaney v. 13 Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989); see also Kennedy v. City 14 of Ridgefield, 439 F.3d 1055, 1061-62 (9th Cir. 2006) (explaining the state-created 15 danger doctrine). 16 Plaintiff’s failure to train claim (Doc. 24 at 8, ¶8) fails for similar reasons. See 17 Canton v. Harris, 489 U.S. 378, 385 (1989) (“our first inquiry . . . is the question whether 18 there is a direct causal link between a municipal policy or custom and the alleged 19 constitutional deprivation.”). Here, because there is no affirmative constitutional right to 20 police services, DeShaney, 489 U.S. at 195, the City cannot be liable under § 1983 for 21 failing to train its employees. Future amendments to this claim would be futile because 22 the Supreme Court has foreclosed Plaintiff’s legal theory. Therefore, the Court dismisses 23 this claim with prejudice. 24 III. COUNT TWO § 1983 – FIFTH AND FOURTEENTH AMENDMENT 25 VIOLATIONS 26 Plaintiff alleges in Count Two that the City of Peoria violated his Fifth and

27 1 Plaintiff styles Count One as “Violation of Civil Rights Under 42 USC Section 1983” (capitalization altered), however “Section 1983 is not itself a source of substantive rights, 28 but merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal marks omitted). 1 Fourteenth Amendment rights “by failing to provide due process of law and access to the 2 services of the City of Peoria Police Organization.” (Doc. 24 at 9, ¶ 2.) As discussed 3 earlier, Plaintiff’s legal theory that creating the police department “forced [him] to rely on 4 the City,” thus creating liability for the police department’s alleged failure to investigate, 5 runs contrary to Supreme Court case law. Plaintiff encourages the Court to adopt the 6 dissents in DeShaney. (Doc. 24 at 9, ¶ 5.) Those dissents would allow a Fourteenth 7 Amendment § 1983 claim when the government has entered the arena of protecting 8 citizens and acquires knowledge about danger to a particular citizen yet does not 9 intervene. See DeShaney, 489 U.S. at 210 (Brennan, J., dissenting); see also id. at 213 10 (Blackmun, J., dissenting). Under our system of government, however, the lower courts 11 do not have the authority to set aside the holding of binding Supreme Court precedent in 12 favor of a dissent. See Bosse v. Oklahoma, 137 S.Ct. 1, 2 (2016). 13 Plaintiff makes another argument under Count Two. He alleges that “failing to 14 provide plaintiff with [requested police] services was discriminatory.” (Doc. 24 at 9, ¶9.) 15 He has not alleged that he is a member of a protected class, however, which might be a 16 basis for a discrimination claim if it motivated the police department’s alleged decision 17 not to provide services. Cf. Weathers v. Hagemeister-May, 663 Fed. Appx. 547, 549 (9th 18 Cir. 2016). To the extent that Plaintiff wishes to make a class-of-one Equal Protection 19 argument in the First Amended Complaint, he did not come close to making the required 20 showing that Defendants (1) intentionally; (2) treated him differently than others 21 similarly situated; (3) with no rational basis for the different treatment. See Willowbrook 22 v. Olech, 528 U.S. 562, 564 (2000). Moreover, “[t]he class-of-one doctrine does not 23 apply to forms of state action that by their nature involve discretionary decision making 24 based on a vast array of subjective, individualized assessments.” Towery v. Brewer, 672 25 F.3d 650, 660 (9th Cir. 2012) (quotation marks omitted). Police investigations fall into 26 that category. Plaintiff has not stated a claim upon which relief may be granted. 27 Given the gravamen of this case, this Court finds that filing additional amended 28 complaints would be futile. Specifically, Plaintiff acknowledges that a private actor, who || had access to Plaintiffs property because of a lease rather than the actions of the police department, stole Plaintiff's property. (Doc. 24 at 4, J§ 20, 25.) Thus, Plaintiff cannot || state facts that support a cognizable claim. 4) IV. STATE LAW CLAIMS 5 Plaintiff's First Amended Complaint includes four state law causes of action: 6|| negligent supervision, “intentional infliction,” fraudulent concealment, and “emotional || distress.” (Doc. 24 at 10-12.) This Court has already ruled that Plaintiff’s state law claims 8 || are barred by the statute of limitations. (Doc. 23 at 5.) Nothing in the First Amended || Complaint changes this. Therefore, the Court need not decide the other bases for which 10 || Defendants seek dismissal on the state law causes of action. V. CONCLUSION 12 Plaintiff asks this Court to find Defendants liable because they did not investigate 13 || the report of a series of crimes with the diligence that he expects. But this Court cannot constitutionalize every grievance concerning perceived government inefficiency. 15 || Investigations and prosecutions are inherently discretionary functions. The facts of this || case do not state a plausible Fifth or Fourteenth Amendment Claim. As to the state law 17 || claims, they are barred by the statute of limitations. The Court finds that the First 18 || Amended Complaint fails to state a claim upon which relief may be granted. 19 Accordingly, 20 IT IS ORDERED granting with prejudice Defendants’ Motion to Dismiss. (Doc. 25.) 22 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in 23 || this case in favor of Defendants as set forth herein. 24 Dated this 22nd day of January, 2020. 25

Michael T. Liburdi 28 United States District Judge

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