1 JDN 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jason John Klingensmith, No. CV-24-02378-PHX-JAT (ESW) 10 Plaintiffs, 11 v. ORDER 12 Gilbert, Town of, et al., 13 Defendants.
14 15 Plaintiff Jason John Klingensmith brought this action, through counsel, under 42 16 U.S.C. § 1983 and state law against the Town of Gilbert (“Gilbert”), Gilbert Police Officer 17 Travis Sheppard, and Jane Doe Sheppard. (Doc. 8.) Before the Court is Defendants Gilbert 18 and Sheppard’s Partial Motion to Dismiss. (Doc. 19.)1 The Court will grant the Motion in 19 part and deny it in part. 20 I. Background 21 Plaintiff’s claims stem from his arrest on or about June 24, 2023. (Doc. 8 ¶ 7.) 22 Plaintiff alleges that Defendant Sheppard detained, arrested, and cited Plaintiff for speeding 23 or racing without probable cause. (Id. ¶¶ 7, 14, 16.) Plaintiff alleges that Defendant Gilbert 24 is vicariously liable for the state law torts of false imprisonment and abuse of process based 25 on Defendant Sheppard’s actions, and Defendant Sheppard is liable for violating Plaintiff’s 26 Fourth Amendment right against unreasonable seizure and Fourteenth Amendment due 27
28 1 Defendants assert that, upon information and belief, Jane Doe Sheppard has not yet been served. (Doc. 19 at 1 n.1.) 1 process rights against fabrication and/or suppression of evidence. (Id. ¶¶ 28–52.) Plaintiff 2 seeks compensatory and punitive damages, and costs and attorneys’ fees. (Id. at 7.) 3 Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(6) for 4 failure to state a claim as to Plaintiff’s Fourteenth Amendment claim for fabrication and/or 5 suppression of evidence. (Doc. 19.) Defendants argue that the Fourteenth Amendment 6 only protects a person from being subjected to a trial when exculpatory evidence has been 7 withheld from the prosecutor. (Id. at 3–4.) Defendants argue that Plaintiff fails to state a 8 claim because there was no prosecution and no criminal trial. (Id. at 4.) 9 In his Opposition to Defendants’ Motion, Plaintiff contends that there does not need 10 to be a criminal trial before a claimant can bring a claim for fabrication of evidence in 11 violation of the Fourteenth Amendment; thus, the Motion to Dismiss should be denied. 12 (Doc. 20 at 2.) 13 II. Federal Rule of Civil Procedure 12(b)(6) 14 Dismissal of a complaint, or any claim within it, for failure to state a claim under 15 Rule 12(b)(6) may be based on either a “‘lack of a cognizable legal theory’ or ‘the absence 16 of sufficient facts alleged under a cognizable legal theory.’” Johnson v. Riverside 17 Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting Balistreri v. Pacifica 18 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining whether a complaint 19 states a claim under this standard, the allegations in the complaint are taken as true and the 20 pleadings are construed in the light most favorable to the nonmovant. Outdoor Media 21 Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A pleading must 22 contain “a short and plain statement of the claim showing that the pleader is entitled to 23 relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the statement need 24 only give the defendant fair notice of what . . . the claim is and the grounds upon which it 25 rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation omitted). To survive 26 a motion to dismiss, a complaint must state a claim that is “plausible on its face.” Ashcroft 27 v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 28 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows 1 the court to draw the reasonable inference that the defendant is liable for the misconduct 2 alleged.” Iqbal, 556 U.S. at 678. 3 A motion to dismiss is based on the pleadings, and if a court considers evidence 4 outside the pleadings, it must normally convert the Rule 12(b)(6) motion into a Rule 56 5 motion for summary judgment. See Fed. R. Civ. P. 12(b); United States v. Richie, 342 F.3d 6 903, 907–08 (9th Cir. 2003). “A court may, however, consider certain materials— 7 documents attached to the complaint, documents incorporated by reference in the 8 complaint, or matters of judicial notice—without converting the motion to dismiss into a 9 motion for summary judgment.” Id. at 908. 10 III. First Amended Complaint2 11 In his First Amended Complaint, Plaintiff set forth the following allegations: 12 At the relevant time, Plaintiff worked for the City of Phoenix Police Department. 13 (Doc. 8 ¶¶ 10–11.) Defendant Sheppard worked for Defendant Gilbert’s Police 14 Department. (Id. ¶ 8.) Previously, Defendant Sheppard worked with Plaintiff at the 15 Phoenix Police Department on the same shift, and Defendant Sheppard was familiar with 16 Plaintiff and Plaintiff’s truck. (Id. ¶ 10.) Plaintiff and Defendant Sheppard had “hard 17 feelings” towards each other at the Phoenix Police Department. (Id. ¶ 37.) 18 On or about June 24, 2023, Defendant Sheppard was on patrol and observed two 19 vehicles—a yellow Ford Mustang sports car and a dark-colored Ford Raptor truck— 20 traveling at a high rate of speed. (Id. ¶¶ 7–8.) Defendant Sheppard radioed in a description 21
22 2 In his Opposition to Defendants’ Motion to Dismiss, Plaintiff presented additional 23 factual information, which he states could be alleged if amendment is necessary. (Doc. 20 at 4.) The Court will not consider the additional facts presented in Plaintiff’s Opposition. 24 See Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the 25 complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss”). Nor will the Court consider the additional facts 26 Defendants presented in their Reply “to rebut” Plaintiff’s additional facts. (Doc. 21 at 4.) See Zucco Partners LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th Cir. 2009) (on a motion 27 to dismiss the court may only consider the facts alleged in the complaint, documents attached to the complaint, and other matters amenable to judicial notice). 28 1 and the license plate of the truck; he reported that the plate number was 136IN. (Id. ¶¶ 9, 2 12.) 3 Based on Defendant Sheppard’s report, Officer Stewart located Plaintiff, who was 4 driving his truck with the reported license plate number. (Id. ¶¶ 12–13.) Defendant 5 Sheppard instructed Officer Stewart to arrest and cite Plaintiff, which he did. (Id. ¶ 16.) 6 That same day, the Phoenix Police Department was notified of Plaintiff’s arrest and 7 citation. (Id.
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1 JDN 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jason John Klingensmith, No. CV-24-02378-PHX-JAT (ESW) 10 Plaintiffs, 11 v. ORDER 12 Gilbert, Town of, et al., 13 Defendants.
14 15 Plaintiff Jason John Klingensmith brought this action, through counsel, under 42 16 U.S.C. § 1983 and state law against the Town of Gilbert (“Gilbert”), Gilbert Police Officer 17 Travis Sheppard, and Jane Doe Sheppard. (Doc. 8.) Before the Court is Defendants Gilbert 18 and Sheppard’s Partial Motion to Dismiss. (Doc. 19.)1 The Court will grant the Motion in 19 part and deny it in part. 20 I. Background 21 Plaintiff’s claims stem from his arrest on or about June 24, 2023. (Doc. 8 ¶ 7.) 22 Plaintiff alleges that Defendant Sheppard detained, arrested, and cited Plaintiff for speeding 23 or racing without probable cause. (Id. ¶¶ 7, 14, 16.) Plaintiff alleges that Defendant Gilbert 24 is vicariously liable for the state law torts of false imprisonment and abuse of process based 25 on Defendant Sheppard’s actions, and Defendant Sheppard is liable for violating Plaintiff’s 26 Fourth Amendment right against unreasonable seizure and Fourteenth Amendment due 27
28 1 Defendants assert that, upon information and belief, Jane Doe Sheppard has not yet been served. (Doc. 19 at 1 n.1.) 1 process rights against fabrication and/or suppression of evidence. (Id. ¶¶ 28–52.) Plaintiff 2 seeks compensatory and punitive damages, and costs and attorneys’ fees. (Id. at 7.) 3 Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(6) for 4 failure to state a claim as to Plaintiff’s Fourteenth Amendment claim for fabrication and/or 5 suppression of evidence. (Doc. 19.) Defendants argue that the Fourteenth Amendment 6 only protects a person from being subjected to a trial when exculpatory evidence has been 7 withheld from the prosecutor. (Id. at 3–4.) Defendants argue that Plaintiff fails to state a 8 claim because there was no prosecution and no criminal trial. (Id. at 4.) 9 In his Opposition to Defendants’ Motion, Plaintiff contends that there does not need 10 to be a criminal trial before a claimant can bring a claim for fabrication of evidence in 11 violation of the Fourteenth Amendment; thus, the Motion to Dismiss should be denied. 12 (Doc. 20 at 2.) 13 II. Federal Rule of Civil Procedure 12(b)(6) 14 Dismissal of a complaint, or any claim within it, for failure to state a claim under 15 Rule 12(b)(6) may be based on either a “‘lack of a cognizable legal theory’ or ‘the absence 16 of sufficient facts alleged under a cognizable legal theory.’” Johnson v. Riverside 17 Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting Balistreri v. Pacifica 18 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining whether a complaint 19 states a claim under this standard, the allegations in the complaint are taken as true and the 20 pleadings are construed in the light most favorable to the nonmovant. Outdoor Media 21 Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A pleading must 22 contain “a short and plain statement of the claim showing that the pleader is entitled to 23 relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the statement need 24 only give the defendant fair notice of what . . . the claim is and the grounds upon which it 25 rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation omitted). To survive 26 a motion to dismiss, a complaint must state a claim that is “plausible on its face.” Ashcroft 27 v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 28 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows 1 the court to draw the reasonable inference that the defendant is liable for the misconduct 2 alleged.” Iqbal, 556 U.S. at 678. 3 A motion to dismiss is based on the pleadings, and if a court considers evidence 4 outside the pleadings, it must normally convert the Rule 12(b)(6) motion into a Rule 56 5 motion for summary judgment. See Fed. R. Civ. P. 12(b); United States v. Richie, 342 F.3d 6 903, 907–08 (9th Cir. 2003). “A court may, however, consider certain materials— 7 documents attached to the complaint, documents incorporated by reference in the 8 complaint, or matters of judicial notice—without converting the motion to dismiss into a 9 motion for summary judgment.” Id. at 908. 10 III. First Amended Complaint2 11 In his First Amended Complaint, Plaintiff set forth the following allegations: 12 At the relevant time, Plaintiff worked for the City of Phoenix Police Department. 13 (Doc. 8 ¶¶ 10–11.) Defendant Sheppard worked for Defendant Gilbert’s Police 14 Department. (Id. ¶ 8.) Previously, Defendant Sheppard worked with Plaintiff at the 15 Phoenix Police Department on the same shift, and Defendant Sheppard was familiar with 16 Plaintiff and Plaintiff’s truck. (Id. ¶ 10.) Plaintiff and Defendant Sheppard had “hard 17 feelings” towards each other at the Phoenix Police Department. (Id. ¶ 37.) 18 On or about June 24, 2023, Defendant Sheppard was on patrol and observed two 19 vehicles—a yellow Ford Mustang sports car and a dark-colored Ford Raptor truck— 20 traveling at a high rate of speed. (Id. ¶¶ 7–8.) Defendant Sheppard radioed in a description 21
22 2 In his Opposition to Defendants’ Motion to Dismiss, Plaintiff presented additional 23 factual information, which he states could be alleged if amendment is necessary. (Doc. 20 at 4.) The Court will not consider the additional facts presented in Plaintiff’s Opposition. 24 See Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the 25 complaint to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to dismiss”). Nor will the Court consider the additional facts 26 Defendants presented in their Reply “to rebut” Plaintiff’s additional facts. (Doc. 21 at 4.) See Zucco Partners LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th Cir. 2009) (on a motion 27 to dismiss the court may only consider the facts alleged in the complaint, documents attached to the complaint, and other matters amenable to judicial notice). 28 1 and the license plate of the truck; he reported that the plate number was 136IN. (Id. ¶¶ 9, 2 12.) 3 Based on Defendant Sheppard’s report, Officer Stewart located Plaintiff, who was 4 driving his truck with the reported license plate number. (Id. ¶¶ 12–13.) Defendant 5 Sheppard instructed Officer Stewart to arrest and cite Plaintiff, which he did. (Id. ¶ 16.) 6 That same day, the Phoenix Police Department was notified of Plaintiff’s arrest and 7 citation. (Id. ¶ 17.) 8 A review of relevant security video showed that Plaintiff was not involved in any 9 speeding or racing that was observed by Defendant Sheppard. (Id.) Consequently, on July 10 5, 2023, the charges against Plaintiff were dismissed. (Id. ¶ 20.) 11 The Phoenix Police Department’s investigation into the incident was subsequently 12 closed based on security footage and the determination that Plaintiff was not involved in 13 any speeding or racing. (Id. ¶ 21.) 14 Thereafter, the Phoenix Police Department Professional Standards Bureau 15 concluded that Plaintiff was the victim of a false arrest and false imprisonment. (Id. ¶ 22.) 16 In Count One, Plaintiff asserts a state law claim for false imprisonment against 17 Defendant Gilbert. (Id. ¶¶ 28–34.) In Count Two, Plaintiff asserts a state law claim for 18 abuse of process against Defendant Gilbert. (Id. ¶¶ 35–41.) And in Count Three, Plaintiff 19 asserts two § 1983 claims against Defendant Sheppard: one for unreasonable seizure in 20 violation of the Fourth Amendment, and the other for fabrication and/or suppression of 21 evidence in violation of the Fourteenth Amendment. (Id. ¶¶ 42–52.) 22 IV. Discussion 23 Although Plaintiff asserts a claim under the Fourteenth Amendment “for fabrication 24 and/or suppression of evidence,” fabrication of evidence and suppression of evidence are 25 two separate claims. (Doc. 8 ¶ 46.) The Court will address each claim separately. 26 A. Suppression of Evidence 27 To state a § 1983 claim for suppression of evidence, a plaintiff must allege that the 28 defendant was aware of evidence that was material and exculpatory; did not make an 1 adequate disclosure of that evidence to the prosecutor; and did so with “deliberate 2 indifference to or reckless disregard for an accused’s rights or for the truth.” Tennison v. 3 City & Ctny. of San Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009). Plaintiff must also 4 allege that the inadequate disclosure prejudiced him. Smith v. Almada, 640 F.3d 931, 939 5 (9th Cir. 2011) (citing Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). 6 In arguing that a suppression of evidence claim requires a prosecution and criminal 7 trial, Defendants rely on Ninth Circuit Model Jury Instruction 9.33A, which states, “[t]he 8 Fourteenth Amendment protects against a person being subjected to a criminal trial when 9 favorable evidence has been deliberately or recklessly withheld from the prosecutor.” 10 (Doc. 19 at 3–4, citing Doc. 8-5 (emphasis in Motion).) 11 Despite this language in this jury instruction, the Ninth Circuit has held that a 12 Fourteenth Amendment suppression of evidence claim against a police officer can be 13 brought even if a criminal defendant’s case never proceeds to trial. Tatum v. Moody, 768 14 F.3d 806, 816 (9th Cir. 2014). In Tatum v. Moody, two police officers withheld exculpatory 15 evidence from the prosecutor for over two years, during which the criminal defendant 16 remained held in pretrial incarceration. Id. at 809. When the prosecutor learned of the 17 withheld evidence, he dismissed the case. Id. at 809, 813. The criminal defendant then 18 brought a § 1983 claim, and the Ninth Circuit held that the officers’ withholding of 19 evidence constituted a Fourteenth Amendment due process violation. Id. at 820. But the 20 Tatum opinion emphasized the narrow scope of such a claim: 21 [It] is restricted to detentions of (1) unusual length, (2) caused by the 22 investigating officers’ failure to disclose highly significant exculpatory evidence to prosecutors, and (3) due to conduct that is culpable in that the 23 officers understood the risks to the plaintiff’s rights from withholding the 24 information or were completely indifferent to those risks. 25 Id. at 819–20. 26 Here, Plaintiff alleges that he was a victim of “false imprisonment,” but he presents 27 no facts as to the length of his detention. (Doc. 8 ¶¶ 22, 30.) He alleges that he was arrested 28 and cited, and that the charges against him were dropped approximately 11 days later. 1 (Doc. 8 ¶¶ 16, 20.) Without more, Plaintiff cannot meet the Tatum requirement to show a 2 detention of unusual length. While Tatum recognized that detentions less than the 27 3 months at issue in that case may violate an individual’s due process rights in certain 4 circumstances, Plaintiff’s allegations do not support that, after his arrest, he was subject to 5 any extraordinary circumstances or conditions that might implicate the Fourteenth 6 Amendment. Tatum, 768 F.3d at 820 (citing Lee v. City of Los Angeles, 250 F.3d 668, 7 684–85 (9th Cir. 2001) (holding that where a mentally incapacitated man was held in 8 detention for one day absent probable cause, a due process violation may have occurred 9 and dismissal on a Rule 12(b)(6) motion was improper), overruled on other grounds by 10 Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). 11 The Court will therefore grant Defendants’ Motion to Dismiss as to Plaintiff’s 12 § 1983 claim for suppression of evidence within Count Three. 13 “Leave to amend is warranted if the deficiencies can be cured with additional 14 allegations that are ‘consistent with the challenged pleading’ and that do not contradict the 15 allegations in the original complaint.” United States v. Corinthian Colleges, 655 F.3d 984, 16 995 (9th Cir. 2011) (quoting Reddy v. Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 17 1990)). It appears unlikely that Plaintiff could remedy the deficiency with additional facts, 18 but not impossible. Leave to amend will be granted to Plaintiff as to the suppression of 19 evidence claim. 20 B. Fabrication of Evidence 21 To state a § 1983 claim for deliberate fabrication of evidence, a plaintiff must allege 22 that (1) the defendant official deliberately fabricated evidence and (2) the deliberate 23 fabrication caused the plaintiff’s deprivation of liberty. Spencer v. Peters, 857 F.3d 789, 24 798 (9th Cir. 2017). The plaintiff must identify evidence he contends the government 25 deliberately fabricated. Bradford v. Scherschligt, 803 F.3d 382, 386 (9th Cir. 2015.) A 26 person suffers a Fourteenth Amendment violation even if the deliberately fabricated 27 evidence is not used “in order to secure a criminal conviction.” Devereaux v. Abbey, 263 28 1 F.3d 1070, 1075 (9th Cir. 2001) (en banc). “[C]harging someone on the basis of 2 deliberately fabricated evidence” is enough to violate the constitutional right. Id. 3 In their Motion, Defendants’ legal argument addresses only a suppression of 4 evidence claim, not a fabrication of evidence claim. (Doc. 19 at 3–4 (relying on Ninth 5 Circuit Model Jury Instruction 9.33A, “Deliberate or Reckless Suppression of Evidence,” 6 and Mellen v. Winn, 900 F.3d 1085, 1096 (9th Cir. 2018) (setting out elements for a claim 7 against a police officer for suppression of evidence).) But in their Reply, Defendants 8 maintain that Plaintiff’s supporting facts—that Defendant Sheppard failed to fully 9 investigate all evidence before issuing the arrest and recklessly conducted an 10 investigation—fail to show deliberate fabrication of evidence. (Doc. 21 at 2–3.) Plaintiff 11 maintains that the facts pled in his First Amended Complaint are sufficient to state a claim 12 for fabrication of evidence. (Doc. 19 at 4.) 13 In his First Amended Complaint, Plaintiff specifically alleges that he was not 14 speeding or racing on June 24, 2023; thus, Defendant Sheppard could not have observed 15 his truck speeding or racing. (Doc. 8 ¶ 19.) Plaintiff alleges that Defendant Sheppard was 16 familiar with Plaintiff’s truck and intentionally reported that one of the racing vehicles was 17 a truck like Plaintiff’s and had Plaintiff’s license plate number. (Id. ¶¶ 8–9.) Plaintiff’s 18 allegations support that Defendant Sheppard’s report—that one of the racing vehicles had 19 Plaintiff’s license plate number—was deliberately fabricated evidence, thereby meeting 20 the first element for a fabrication of evidence claim. See Outdoor Media Group, 506 F.3d 21 at 900 (the complaint is construed in the light most favorable to the nonmovant). Plaintiff 22 further alleges that, based on this fabricated evidence, he was unlawfully arrested and 23 unlawfully imprisoned, which resulted in the deprivation of liberty. (Id. ¶¶ 22, 30.) This 24 satisfies the second element for a fabrication of evidence claim. 25 Accordingly, Defendants’ Motion to Dismiss will be denied as to the § 1983 claim 26 for fabrication of evidence in Count Three. 27 IT IS ORDERED: 28 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 1 | Motion to Dismiss (Doc. 19). 2 (2) Defendants’ Motion to Dismiss (Doc. 19) is granted in part and denied in 3 part as follows: 4 (a) the Motion is granted as to the § 1983 claim for suppression of 5 evidence within Count Three, and this claim is dismissed; and 6 (b) — the Motion is otherwise denied. 7 (3) Within 14 days of the date of this Order, Plaintiff may amend his First 8 | Amended Complaint for the purpose of asserting a § 1983 claim under the Fourteenth 9 | Amendment for suppression of evidence. 10 (4) — ‘If Plaintiff does not file a Second Amended Complaint, Defendants must file 11 | an Answer to the First Amended Complaint within 21 days of this Order. 12 Dated this 7th day of August, 2025. 13 14 A 7 5 15 16 _ James A. Teil Org Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -8-