McCleland v. Tempe, City of

• Court: District Court, D. Arizona
• Decided: September 23, 2024
• Docket: 2:24-cv-00926
• Status: Unknown

Opinion

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

9 James F McCleland, II, No. CV-24-00926-PHX-KML No. CV-24-01464-PHX-KML 10 Plaintiff, ORDER 11 v.

12 City of Tempe, et al.,

13 Defendants. 14 15 In two separate hundred-plus page complaints, plaintiff James F. McCleland, II, 16 alleges the City of Tempe and its code enforcement personnel violated his constitutional 17 rights and various federal and state laws. McCleland’s complaints are rambling and 18 imprecise, but he generally seems to assert that Tempe (1) acted outside its authority when 19 investigating complaints filed by an anonymous neighbor about the condition of residential 20 property he owns in the city and (2) took too long to respond to his public records requests. 21 Tempe filed a motion to consolidate the cases. (926-Doc. 22.) McCleland has not 22 responded but admits many claims in both suits “are the same.” (1464-Doc. 1 at 2.)1 23 Consolidation of these cases is appropriate because they involve substantially the 24 same parties, facts, and questions of law. See Fed. R. Civ. P. 42. But because neither of 25 McCleland’s complaints met Rule 8(a)’s requirement to provide “a short and plain 26 statement of the claim,” he will be required to file a consolidated complaint in CV-24-926 27 succinctly identifying the correct parties, claims, and acts giving rise to those claims.

28 1 “926-Doc.” refers to the docket in No. CV-24-00926, and “1464-Doc.” refers to the docket in No. CV-24-1464. 1 In filing his consolidated complaint, McCleland should keep in mind arguments 2 Tempe made in its Rule 12(e) motions for more definite statement. (926-Doc. 15, 1464- 3 Doc. 18.) Although those motions are denied as moot because McCleland must file a 4 consolidated complaint, they raise serious questions about the viability of most claims in 5 both complaints. Specifically, most criminal statutes—including those McCleland relies 6 on—do not confer private rights of action. See Allen v. Gold Country Casino, 464 F.3d 7 1044, 1048 (9th Cir. 2006) (“18 U.S.C. §§ 241 and 242 . . . are criminal statutes that do not 8 give rise to civil liability”). In other words, McCleland cannot use this civil lawsuit to allege 9 violations of criminal law without specifying a basis that allows him, rather than a state or 10 federal prosecutor, to bring the claim. 11 McCleland is likewise warned there is no respondeat superior liability under 42 12 U.S.C. § 1983. A defendant’s position as the supervisor of persons who allegedly violated 13 his constitutional rights does not impose liability. See generally Monell v. Dep’t of Soc. 14 Servs., 436 U.S. 658 (1977). McCleland’s consolidated complaint must therefore specify 15 how “each Government-official defendant, through the official’s own individual actions, 16 has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 17 More generally, a rambling complaint that fails to tie specific defendants to alleged 18 legal wrongs does not meet Rule 8’s requirement of simplicity, directness, and clarity. 19 Cafasso, U.S. ex rel. v. General Dynamics C4 Sys, Inc., 637 F.3d 1047, 1058-59 (9th Cir. 20 2011). For every claim, McCleland’s consolidated complaint must therefore (as Tempe’s 21 Rule 12(e) motions requested) identify specific defendants and their specific acts that 22 McCleland alleges give rise to liability. The court will not impose a page limit on the 23 consolidated complaint, but it is unlikely that McCleland needs more than twenty pages 24 total to state viable causes of action on the small number of claims that could survive a 25 motion to dismiss. 26 McCleland filed a motion for default after Tempe filed its motions for a more 27 definite statement. (926-Doc. 25.) That motion is denied because Rule 12(e) effectively 28 tolls the time for filing an answer until the court rules on the motion for a more definite 1 statement. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“a defendant can 2 move for a more definite statement under Rule 12(e) before responding”). 3 McCleland also filed motions to compel Tempe to reveal the identity of the 4 “anonymous neighbor” in both cases. (926-Doc. 16, 1464-Doc. 12.) Both motions are 5 denied. McCleland apparently seeks the neighbor’s identity to enable service (926-Doc. 16 6 at 1–2; 1464-Doc. 12 at 1–2), but a plaintiff seeking early discovery for identification 7 purposes must meet the four-part test summarized in Columbia Ins. Co. v. seescandy.com, 8 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). Neither of McCleland’s motions tries to meet 9 that test. And even if they had, it appears McCleland could not meet the fourth prong, i.e., 10 showing “a reasonable likelihood that the discovery process will lead to identifying 11 information about [the] defendant that would make service of process possible[,]” id. at 12 580, because Tempe says it has reviewed the complaints and does not possess the 13 complainant’s identifying information. (See 926-Doc. 20 at 2–3, 1464-Doc. 17 at 2–3.) 14 Finally, McCleland’s motion for preliminary injunction (1464-Doc. 20) is denied. 15 McCleland’s motion seeks to prevent Tempe from issuing further code compliance notices 16 because, although he owns property in Tempe, Tempe has not provided him with a 17 description of the legal authority allowing it to issue code compliance notices for the 18 property. (1464-Doc. 20 at 2, 1464-Doc. 1 at 23, 29.) For the reasons above, McCleland 19 has failed to show he is likely to succeed on the merits of his claims as he must to obtain 20 injunctive relief. See Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (noting court need 21 not consider other injunctive relief factors where movant fails to show threshold likelihood 22 of success on the merits). 23 Accordingly, 24 IT IS ORDERED the motion to consolidate (926-Doc. 22) is GRANTED. The 25 Clerk of Court is directed to consolidate CV-24-01464-PHX-KML with CV-24-00926- 26 PHX-KML. The Clerk of Court shall close CV-24-1464-PHX-KML. All future filings 27 shall be in CV-24-00926-PHX-KML. 28 IT IS FURTHER ORDERED the complaint (926-Doc. 1) is DISMISSED. No later than October 7, 2024, Plaintiff shall file a consolidated complaint in CV-24-00926- 2 || PHX-KML that complies with Fed. R. Civ. P. 8(a). 3 IT IS FURTHER ORDERED Defendants’ motions for more definite statement 4|| (926-Doc. 15, 1464-Doc. 18) are DENIED AS MOOT. 5 IT IS FURTHER ORDERED Plaintiff's motion for default (926-Doc. 25) is || DENIED. 7 IT IS FURTHER ORDERED Plaintiff's motions to compel identity of the 8 || neighbor (926-Doc. 16, 1464-Doc. 12) are DENIED. 9 IT IS FURTHER ORDERED Plaintiff's motion for preliminary injunction (1464- || Doc. 20) is denied. 11 Dated this 23rd day of September, 2024. 12 13 é V4) hy Va ny G / . 14 Honorable Krissa M. Lanham 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28

-4-