1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 David M Morgan, No. CV-19-00571-TUC-DCB
10 Plaintiff, ORDER
11 v.
12 Cochise County Board of Supervisors, et al.,
13 Defendants.
14 For reasons explained below, the Court grants the Motions to Dismiss, without leave 15 to amend. 16 Plaintiff filed his Complaint on December 6, 2019, (Doc. 1), and a First Amended 17 Complaint (FAC) on March 5, 2020, (Doc. 11). Plaintiff alleges that Defendants, acting 18 individually and together, violated his First Amendment right to free speech. He alleges 19 that he owns and publishes the Cochise County Record, which reports on local courts, local 20 policing and local politics. He alleges that Defendants have precluded his access to sources 21 he needs for his journalistic endeavors and have maliciously prosecuted him by bringing a 22 civil action against him in retaliation for his work. He alleges that the Cochise County 23 Board of Supervisors, individually and as a government body, have knowingly looked the 24 other way and failed to train and supervise county staff on the First Amendment right to 25 public records. Plaintiff’s FAC alleges a claim, pursuant to 42 U.S.C. § 1983, invoking this 26 Court’s federal question jurisdiction, pursuant to 28 U.S.C. § 1331, and includes pendant 27 state law claims of intentional infliction of emotional and financial distress. 28 1 Section 1983 does not contain its own statute of limitations, so the federal courts 2 borrow the limitation period for § 1983 claims from the statute of limitations for personal 3 injury claims in the forum state. See Wilson v. Garcia, 471 U.S. 261, 279–80 (1985). 4 In Arizona, the two-year statute of limitations for personal injury claims applies to § 1983 5 claims. Marks v. Parra, 785 F.2d 1419, 1420 (9th Cir.1986) (citing A.R.S. § 12–542)). The 6 federal courts “borrow no more than necessary,” West v. Conrail, 481 U.S. 35, 39–40 7 (1987), therefore, federal, not state, law determines when a civil rights claim 8 accrues. Elliott v. City of Union City, 25 F.3d 800, 801–802 (9th Cir.1994). Under federal 9 law, a claim accrues when the plaintiff knows or has reason to know of the injury which is 10 the basis of the action. Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996). 11 Here, the alleged constitutional violations occurred when on September 25, 2017, 12 Defendant Lieutenant Monge, Bisbee Jail Operations Manager for the Cochise County 13 Sheriff’s Department, wrote a letter suspending Plaintiff’s access to the Securus inmate 14 video visitation system for visits with inmates at the jail in Bisbee. Thereafter, the County 15 Defendants have acted in concert to block his access to inmate video face-to-face 16 visitations. Next, Plaintiff alleges that on December 8, 2017, the Defendants McIntyre, 17 Zucco, Ransom and Borquez acted in concert to file a civil action against him for allegedly 18 violating criminal and civil statutes that protect grand jury proceedings. Defendants 19 McIntyre, Zucco, and Ransom are Deputy County Attorneys, and Borquez was the 20 investigating sheriff. The civil action went against Defendants, with the denial of a 21 preliminary injunction in March of 2018, which was affirmed by the Arizona Court of 22 Appeals on June 13, 2019. The Defendants, thereafter, dismissed the civil action. The Court 23 assumes there are no statute of limitation issues for the purpose of determining the motions 24 to dismiss. 25 Finally, the Plaintiff alleges that in December 2017 and January through February 26 2018, State Defendant Suarez-Dunlap, Clerk of the Superior Court for Cochise County,1 27 and in 2019, Defendant Hunley, who replaced Suarez-Dunlap, failed to establish written 28 1 These Defendants are state not county employees. 1 procedures and training for Clerk’s Office staff for public access to court case files, 2 including failure to maintain a fully functional single computer available in the clerk’s 3 office for public access to court records. The Court focuses on factual allegations spaning 4 2018 and 2019. 5 The Plaintiff also alleges that the Cochise County Board of Supervisors, 6 individually and acting as the Board, has failed to train and supervise these elected officials 7 (the Sheriff, the County Attorney, the Clerk of the Superior Court) and willfully allowed 8 county operations without establishing First Amendment principles and procedures 9 regarding access to public information. (FAC (Doc. 11) at ¶¶14, 27; Count X ¶ 49.) 10 Both the county and state Defendants have filed Motions to Dismiss (Docs. 32, 45). 11 Plaintiff separately responded to the Motions to Dismiss and, in responding to the State’s 12 Motion to Dismiss, he alternatively moved to amend the FAC if the Court acts to dismiss 13 it. The Court treats the Motion for Leave to Amend as applying to the FAC in its entirety. 14 Motions to Dismiss 15 The Court grants the County Defendants’ Motion to Dismiss the Plaintiff’s claims 16 against Deputy Attorneys McIntyre, Zucco and Ransom as they are barred by the doctrine 17 of prosecutorial immunity. The Plaintiff’s claims against the Cochise County Defendants 18 are barred by qualified immunity. Plaintiff fails to state a claim against the County Board 19 of Supervisors, individually or collectively, under Monell v. New York City Dept of Soc. 20 Services, 436 U.S. 658, 691 (1978). The Court grants the State Defendants’ Motion to 21 Dismiss because actions against the State are barred by the 11th Amendment and claims 22 against the State Defendants, individually, are barred by qualified immunity. All state law 23 claims are barred by Plaintiff’s failure to file a Notice of Claim as required under A.R.S. § 24 12-821.01(A). 25 Summarized by the Arizona Court of Appeals: “David Morgan is a Cochise County 26 resident who operates a website and social media discussion group dedicated to 27 electronically posting his views and articles about criminal justice topics. In September 28 2017, Morgan obtained an unredacted copy of the grand jury transcript for a murder case 1 the County was prosecuting against Roger Wilson. Morgan received the transcript, which 2 contained the full names of the grand jurors, and a grand jury exhibit consisting of a 3 photograph of the deceased victim in a hospital bed, from Wilson’s defense attorney after 4 Morgan offered to deliver the materials to Wilson at the jail where he was incarcerated 5 awaiting trial. He also obtained a sealed motion for remand after it had been filed with the 6 superior court.” . . . The County filed a complaint against Morgan seeking a declaration 7 that, by posting the transcript and motion and maintaining them online, Morgan had 8 violated a criminal statute, A.R.S. § 13-2812, two civil statutes, A.R.S. § 21-312 and § 39- 9 121.04, and the trial court’s order sealing the motion. The complaint also sought an order 10 permanently enjoining Morgan from maintaining the materials online or otherwise publicly 11 disseminating them.” (MD, Ex. B (Doc. 32-2) at 2: Cochise County Attorney v. Morgan, 12 2019 WL 2474727 *1 (Ariz. App. June 13, 2019)). 13 Summarized by the Plaintiff: “In late 2017, Plaintiff published a story about claimed 14 bungling of Cochise County grand jury proceedings in a murder case which could result in 15 quashed indictments, delays and new proceedings. To explain the errors and the arguments 16 by the defense attorney, Plaintiff published a link to the complete official transcript of the 17 subject grand jury proceedings.” (Response (Doc. 38) at 15.) Defendant Zucco allegedly 18 “bungled” the grand jury presentation, id., and allegedly participated in the investigation, 19 id., which in the end lead to the County Attorney’s office, Deputy Attorney Ransom, 20 initiating a civil action seeking an injunction to stop the continued publication of the grand 21 jury transcript and juror names. Id. 22 The Plaintiff depends on the civil nature of the injunctive action filed against him 23 by the Defendants to argue that prosecutorial immunity does not apply. But prosecutorial 24 immunity extends to civil actions that bear a connection to criminal activity, or are 25 functionally analogous to criminal proceedings. See (MD (Doc. 32) at 8 (citing Butz v. 26 Economou, 438 U.S. 478, 515-16 (1978); Torres v. Goddard, 793 F.3d 1046, 1052 (9th Cir. 27 2015); Red Zone 12 LLC v. City of Columbus, 758 Fed. Appx. 508 (6th Cir. 2019); 28 Mendenhall v. Goldsmith, 59 F.3d 685, 691 (7th Cir. 1995)). Arizona law, likewise, 1 provides absolute immunity for prosecutorial functions. (MD (Doc. 32) at 8 (citing A.R.S. 2 § 12-820.01(A)(1) & (5); State v. Superior Court, 921 P.2d 697, 700 (Ariz. App. 1996); 3 Mulligan v. Grace, 66 P.2d 1092, 1094 (Ariz. App. 1983); Challenge , Inc, v. Arizona, 673 4 P.2d 944, 948 (Ariz. App. 1983)). 5 The Defendants’ assertion of absolute immunity by a motion to dismiss, pursuant to 6 Fed. R. Civ. P. 12(b)(6), requires the Court to accept as true “[a]ll allegations of material 7 fact” alleged in the FAC (Doc. 11) and construe them “in the light most favorable to the 8 nonmoving party.” Patterson v. Van Arsdel, 883 F.3d 826, 829 (9th Cir. 2018) (quoting 9 Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009)); Iolab Corp. v. Seaboard Sur. 10 Co., 15 F.3d 1500, 1504 (9th Cir.1994). The Court does not consider the merits of the 11 Plaintiff’s allegations of constitutional misconduct, but simply determines whether it 12 appears beyond doubt that the Plaintiff can prove no set of facts in support of his 13 constitutional claims which would entitle him to relief. Lewis v. Tel. Employees Credit 14 Union, 87 F.3d 1537, 1545 (9th Cir. 1996). Dismissal is appropriate if the facts alleged do 15 not state a claim that is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 16 544, 555 (2007). Requiring Plaintiff to allege facts which plausibly support (go beyond 17 mere consistency with) his claims, reflects Rule 8's threshold requirement that the “plain 18 statement” possess enough heft to “sho[w] that the pleader is entitled to relief.” Id. at 1959 19 (citing Fed. R. Civ. P. 8(a)(2)). The purpose of Rule 8 is to prevent vague and ambiguous 20 claims and to ensure that defendants will be able to frame a responsive pleading. 21 In Twombly, the Supreme Court raised the bar from the prior pleading requirement 22 of “no-set-of-facts,” Conley v. Gibson, 355 U.S. 41 (1957), which had been designed to 23 screen out only those cases that patently had no theoretical hope of success, id. at 45–46. 24 See Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009) (Souter, J., dissenting) (observing that 25 “[t]he sole exception” under Conley was for “allegations that [were] sufficiently fantastic 26 to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to 27 Pluto, or experiences in time travel”). Under Twombly, a civil complaint only survives a 28 motion to dismiss if it “contain[s] sufficient factual matter, accepted as true, to state a claim 1 to relief that is plausible on its face.” Iqbal, 556 U.S. at 677-678. In short, Twombly screens 2 out the “little green men” cases and cases that, while not utterly impossible, are 3 “implausible.” A complaint must “contain sufficient factual matter” to be “plausible,” id. 4 at 678, but a court cannot dismiss for factual implausibility “even if it [would] strike[ ] a 5 savvy judge that ... recovery is very remote and unlikely,” Twombly, 550 U.S. at 556. 6 A. Prosecutorial Immunity 7 The scope of prosecutorial immunity is broad, Imbler v. Pachtman, 424 U.S. 409, 8 431 (1976), with a prosecutor being absolutely immune from civil suit for any activities 9 that are intimately associated with the judicial phase of the criminal process, such as 10 initiating a prosecution, including grand jury proceedings, and presenting the state's case. 11 Imbler, 424 U.S. at 431; Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). The scope of 12 prosecutorial immunity extends beyond the trial, to the appellate stage2 of criminal 13 prosecutions. Imbler, 424 U.S. at 427-428; Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 14 2003). A prosecutor is equally entitled to absolute immunity when making a decision not 15 to prosecute an individual for alleged crimes. Ying Jing Gan v. City of New York, 996 F.2d 16 522, 531 (2d Cir.1993); Schloss v. Bouse, 876 F.3d 287 (2d Cir.1989). 17 Actions by a prosecutor are not, however, covered by absolute immunity merely 18 because they were performed by a prosecutor; the question is whether the actions “are part 19 of a prosecutor's traditional functions.” Broam v. Bogan, 320 F.3d at 1030. Under the Ninth 20 Circuit’s functional approach, immunity flows from “‘the nature of the function 21 performed, not the identity of the actor who performed it.’” Kalina v. Fletcher, 522 U.S. 22 118, 127 (1997) (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). The Court 23 distinguishes between acts of advocacy, which are entitled to absolute immunity, and 24 administrative and “police-type” investigative acts which are not. Patterson v. Van Arsdel, 25 883 F.3d 826, 830 (9th Cir. 2018). For acts that are “intimately associated with the judicial 26 phase of the criminal process,” “absolute immunity furthers the doctrine’s core goal of 27 2 In the Response to the Motion to Dismiss, the Plaintiff alleges that Defendant Ransom 28 “appealed and lost.” (Response (Doc. 38) at 16.) 1 preventing retaliatory lawsuits that may impose ‘unique and intolerable’ burdens upon 2 prosecutors.” Id. (quoting Imbler, 424 U.S. at 425–26). This goal protects even errors, such 3 as: deciding to prosecute and evaluating a witness “even if that judgment is harsh, unfair 4 or clouded by personal animus,” Roe v. City & County of San Francisco, 109 F.3d 578, 5 583–84 (9th Cir.1997); failing to investigate the accusations against a defendant before 6 filing charges, O'Connor v. Nevada, 686 F.2d 749, 750 (9th Cir.1982) (per curiam); 7 knowing use of false testimony at trial, Imbler, 424 U.S. at 431, or deciding to not preserve 8 or turn over exculpatory material before trial, during trial, or after conviction in violation 9 of the 14th Amendment due process clause, Imbler, 424 U.S. at 431–32 n. 34. 10 For example: “Actions classified as ‘advocacy’ include initiating a prosecution and 11 presenting the state’s case, Imbler, 424 U.S. at 431, [], appearing at a probable cause 12 hearing to support an application for a search warrant, Burns v. Reed, 500 U.S. 478, 491 13 (1991), [], and preparing and filing a motion for an arrest warrant. Kalina, 522 U.S. at 129, 14 [].” Patterson v. Van Arsdel, 883 F.3d 826, 830 (9th Cir. 2018). “Prosecutors 15 are absolutely immune from liability for gathering additional evidence after probable cause 16 is established or criminal proceedings have begun when they are performing a quasi- 17 judicial function.” Broam, 320 F.3d at 1030-31 (citing see, e.g., Imbler, 424 U.S. at 431 18 n. 33 (stating that “[p]reparation, both for the initiation of the criminal process and for a 19 trial, may require the obtaining ... of evidence”); Herb Hallman Chevrolet, Inc. v. Nash– 20 Holmes, 169 F.3d 636, 643 (9th Cir.1999) (when the majority of the investigation had been 21 conducted by the time the grand jury was impaneled, the fact that the prosecutor 22 interviewed other witnesses after impaneling grand jury did not preclude him from being 23 protected by absolute immunity); Freeman ex rel. The Sanctuary v. Hittle, 708 F.2d 442, 24 443 (9th Cir.1983) (per curiam) (holding that the prosecutor was absolutely immune to 25 civil suit for damages caused by the investigator while preforming an investigative function 26 pursuant to the preparation of the prosecutor's case and within the scope of the prosecutor's 27 duties in initiating and pursuing the state's case)). 28 1 When a prosecutor steps outside of the advocate’s role, his or her conduct is 2 protected only by qualified immunity “to the extent that any other individual would be 3 protected performing the same function.” Cruz v. Kauai County, 279 F.3d 1064, 1067 (9th 4 Cir. 2002). Then, prosecutors must look to qualified immunity when they perform activities 5 outside their core role as courtroom advocates, such as giving legal advice to police 6 officers, Burns, 500 U.S. at 493, or attesting to facts in support of a search warrant, Kalina, 7 522 U.S. at 130–31. 8 The gravamen of Plaintiff’s allegations against the prosecuting attorneys are that 9 they acted to violate his First Amendment right to free speech by “initiating a criminal 10 investigation of the Plaintiff and initiating criminal or civil proceedings against the 11 Plaintiff.” (FAC (Doc. 11) ¶ 31(a)), see also ¶¶ 27b, 29a. 12 The Court finds that the investigation into Plaintiff’s alleged violation of the 13 misdemeanor statute, A.R.S. § 13-2812, was criminal in nature. Prosecutorial immunity 14 applies to any prosecutorial or judicial actions taken by the Defendant attorneys, including 15 the ultimate decision to not bring criminal charges against the Plaintiff but to, alternatively, 16 seek a civil injunction, which in this case had a strong connection to a criminal matter 17 because it was filed to protect grand jury secrecy, grand jury records and victim depictions 18 in a murder case the County was prosecuting. 19 The Plaintiff has failed to allege any specific facts to support his conclusory charge 20 that the prosecuting attorneys were involved in the sheriff’s investigation, but if Cochise 21 County sheriffs can be held liable for any such conduct, so can the Defendant prosecutors. 22 As explained below, qualified immunity applies to police investigative functions, 23 regardless of whether the actor was a sheriff or an attorney. 24 B. Qualified Immunity 25 “The doctrine of qualified immunity protects government officials 'from liability for 26 civil damages insofar as their conduct does not violate clearly established statutory or 27 constitutional rights of which a reasonable person would have known.'” Pearson v. 28 Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 1 (1982)). It “shields an officer from suit when she makes a decision that, even if 2 constitutionally deficient, reasonably misapprehends the law governing the circumstances 3 confronted. Even if the officer's decision is constitutionally deficient, qualified immunity 4 shields her from suit if her misapprehension about the law applicable to the circumstances 5 was reasonable.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The purpose of the 6 doctrine is “to recognize that holding officials liable for reasonable mistakes might 7 unnecessarily paralyze their ability to make difficult decisions in challenging situations, 8 thus disrupting the effective performance of their public duties.” Mueller v. Auker, 576 9 F.3d 979, 993 (9th Cir. 2009). Because it is inevitable that law enforcement officials will 10 in some cases make mistakes, Garcia v. Cty. of Merced, 639 F.3d 1206, 1208 (9th Cir. 11 2011), qualified immunity “gives ample room for mistaken judgments” and protects “all 12 but the plainly incompetent or those who knowingly violate the law.” Hunter v. Bryant, 13 502 U.S. 224 (1991); see also Ashcroft v. al–Kidd, 563 U.S. 731, 743 (2011) (quoting 14 Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092 (1986)). 15 The doctrine bars the suit; it is not a defense to liability. Act Up/Portland, 988 F.2d 16 at 872-73. Qualified immunity is “an entitlement not to stand trial or face the other burdens 17 of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified immunity is a legal 18 question, and it is addressed by the Court at the earliest possible point in the litigation. Act 19 Up/Portland, 988 F.2d at 872-73. Qualified immunity protects police officers from 20 individual liability under 42 U.S.C. § 1983 for an abuse of discretion violating civil rights 21 unless the legal right was “clearly established” at the time, and a reasonable person in the 22 same position would have known that what he did violated that right. Behrens v. Pelletier, 23 516 U.S. 299, 304 (1996); Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir. 1996); Trevino 24 v. Gates, 99 F.3d 911, 916 (9th Cir. 1996); Act Up/Portland v. Bagley, 988 F.2d 868, 871 25 (9th Cir. 1993). Qualified immunity is designed to protect an officer who, reasonably, but 26 mistakenly, acts in violation of some constitutional right. Saucier v. Katz, 533 U.S. 194, 27 205 (2001). 28 1 When determining whether an officer is entitled to qualified immunity, the Court 2 considers (1) whether there has been a violation of a constitutional right, and (2) whether 3 that right was clearly established at the time of the officer's alleged misconduct. Lal v. 4 California, 746 F.3d 1112, 1116 (9th Cir. 2014). Either way, qualified immunity applies. 5 If the question of whether there has been a constitutional violation involves disputed facts 6 which, when viewed most favorably to the Plaintiff, could support a rational jury finding 7 in his favor, the Court moves to the second question: whether the right at issue was clearly 8 established such that a reasonable officer would have understood his actions were unlawful. 9 The law does not “require a case directly on point, but existing precedent must have placed 10 the ... constitutional question beyond debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 740 11 (2011). There must be precedent involving similar facts to provide an officer notice that a 12 specific act is constitutionally unlawful. Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) 13 (per curium). 14 Here, the Court considers both prongs because it must determine whether to allow 15 the Plaintiff, who appears pro se, to amend the First Amended Complaint. A pro se litigant 16 should be given an opportunity to amend the compliant to overcome a deficiency unless it 17 is clear that no amendment can cure the defect. Potter v. McCall, 433 F.2d 1087, 1088 18 (9th Cir. 1970); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). The Court has 19 considered whether any amendment could create disputed facts which, when viewed most 20 favorably to the Plaintiff, could support the Plaintiff on the question of immunity. 21 The FAC and Clearly Established Law 22 It is a cornerstone of First Amendment jurisprudence that restrictions based on the 23 content of speech are, generally, subject to heightened judicial scrutiny, and will be struck 24 down absent a compelling government interest. Perry Educ. Ass'n v. Perry Local 25 Educators' Ass'n, 460 U.S. 37, 45 (1983) (explaining that the Court applies “the most 26 exacting scrutiny” to content-based regulations, and that such regulations will be upheld 27 only if “necessary to serve a compelling state interest and … narrowly drawn to achieve 28 that end”). If content-based regulations are imposed in a public forum, such as streets, 1 parks and sidewalks, they are subject to strict scrutiny. Id. In a facility under government 2 control, a so-called nonpublic forum, less scrutiny typically is applied. Id. at 46. In the 3 prison context, the focus is on the reasonableness of prison regulations, with the relevant 4 inquiry being whether the actions of prison officials were “‘reasonably related to legitimate 5 penological interests.’” Thornburgh v. Abbott, 490 U.S. 401, 409 (1989) (quoting Turner 6 v. Safley, 482 U.S. 78, 89 (1987)). “‘[S]uch a standard is necessary if ‘prison administrators 7 ..., and not the courts, [are] to make the difficult judgments concerning institutional 8 operations.’” Id. It is “beyond question” that actions “expressly aimed at protecting prison 9 security” are legitimate because this purpose is “‘central to all other correctional goals.’” 10 Thornburgh, 490 U.S. at 415 (quoting Pell v. Procunier, 417 U.S 817, 824, 823 (1974)). 11 The Plaintiff alleges that Defendant Detective Borquez conducted the sheriff’s 12 investigation into whether the Plaintiff violated A.R.S. § 13-2812 because the Plaintiff 13 posted the grand jury transcript and sealed motion on-line. The other Cochise County 14 Sheriffs named in the FAC are: Sheriff Dannels; Detentions Commander Bradshaw; 15 Lieutenant Monge, Bisbee Jail Operations, and Public Information Officer Capas. The 16 factual allegations in the FAC supporting any claim against these Defendants is that 17 Defendant Monge wrote the September 25, 2017, letter, suspending Plaintiff’s access to 18 the inmate video visitation system for face-to-face visits with inmates. (FAC (Doc. 11) at 19 ¶¶ 10 27(a)). The suspension resulted because the Plaintiff “attempted to enter a secured 20 area of the Cochise County Jail to visit with an inmate without authorization,” in “violation 21 of the jail’s visitation policy and inmate access to media policy.” (Response (Doc. 39-2) at 22 1: 9/25/17 letter); (Reply (Doc. 44) at 7 (quoting 9/25/17 letter)). He was told that he could 23 appeal the denial of access to the Jail Commander, Defendant Bradshaw. Id. Plaintiff 24 alleges he requested a review of Defendant Monge’s suspension of Plaintiff’s face-to-face 25 communications with inmates, but received no response from Monge, Bradshaw or 26 Dannels. (Response (Doc. 38) at 20.) 27 Plaintiff’s Response to the County’s Motion to Dismiss mirrors the factual 28 allegations to support his claims against Borquez: “Detective Todd Borquez of the Cochise 1 County Sheriff’s Office was the lead investigator for the underlying case.” (Response (Doc. 2 38) at 15.) Plaintiff alleges he asked Defendant Capas, the Public Information Officer, on 3 many occasions to explain reporting delays and missing or bogus information in daily 4 reports, and she routinely answered with “technical difficulties” or offered other 5 incomplete and inconsistent explanations without any supporting documentation. 6 (Response (Doc. 38) at 19.) 7 Plaintiff’s claims against the Clerk of the Superior Court are brought against the 8 state because under Arizona law, a deputy clerk of the Superior Court of Arizona is an 9 employee of the State of Arizona; each deputy clerk is appointed by the Clerk of the 10 Superior Court of Arizona and is a part of the state’s judicial branch of government. Salerno 11 v. Espinoza, 210 Ariz. 586, 588, 115 P.3d 626, 628 (Ariz. App. 2005). Plaintiff claims that 12 State Defendants Suarez-Dunlap and Hunley, acting individually and officially, failed to 13 establish written procedures and training for Clerk’s Office staff for public access to court 14 case files and, thereby, impeded his First Amendment right of public access to court 15 records. 16 In his Response to the State Defendants’ Motion to Dismiss, the Plaintiff lays out 17 his case going back to 2011, when Suarez-Dunlap took office, and he asked her to create 18 public access to court records at the county’s Sierra Vista facility rather than Bisbee, where 19 the county seat, courthouse, and clerk’s office is located. (Response (Doc. 49) at 8.) Until 20 2017, the single “public access” computer was behind a locked door inside the Clerk’s 21 office and worked “perhaps 75% of the time.” Id. at 6. It was located in Bisbee, not Sierra 22 Vista, which is the largest city in Cochise County, where he lives. Id. Off-premise public 23 access (via internet) to Cochise County Superior Court case file documents was not 24 available until mid-2019 when the Arizona Supreme Court’s Administrative Office [] 25 began providing limited on-line access to limited case-file documents from most Superior 26 Courts in Arizona.” Id. at 7. By 2016-17, he “was reviewing dozens of criminal and civil 27 case files each month, hundreds or even thousands of pages of documents.” Id. at 9. He 28 alleges that he “was by far the most frequent user of the public access computer.” Id. at 7. 1 “By early-2017, the turmoil in the Clerk’s Office was in (sic) clear and frustrations were 2 high in the local court/legal community.” Id. at 10. “By February 2018, the Arizona 3 Supreme Court in coordination with the Presiding Judge of the Superior Court for Cochise 4 County, James Conlogue, . . . made arrangements to bring in court operation consultant 5 Doug Kooi to be a sort of ‘acting’ Chief Deputy to the Clerk.” Id. at 13.) “In early January 6 2019, newly elected Clerk Amy Hunley took office. Kooi had made suggestions to the 7 incoming Clerk of priorities and corrective measures still to be completed.” Id. at 14. 8 Because of the two-year statute of limitation period that applies to Plaintiff’s claims, 9 the Court focuses on the factual allegations for 2018 and 2019. The Plaintiff attaches the 10 log-in sheets for what he refers to as the public access computer, which he alleges routinely 11 was inoperable. The sign-in sheets for 2019 reflect the following use by the Plaintiff of the 12 public access computer: Page 1: 19 sign-ins by Plaintiff with two identified as “system 13 down”; Page 8: 24 sign-ins by Plaintiff without any problem; Page 13: 1 sign-in, without 14 any problem. The sign-in sheets for 2018 reflect he used the public access computer as 15 follows: Page 2: 24 sign-ins, with 4 “not functioning” and 3 spanning consecutive days 16 from April 5 to 8; Page 3: 6 sign-ins, with 2 “not functioning”; Page 4: 26 sign-ins, with 17 no problems; Page 5: 4 sign-ins, with no problems; Page 6: 21 sign-ins with no problems; 18 Page 7: 21 sign-ins with 5 “not working” and 2 spanning consecutive days from December 19 11 to 21. (Response (Doc. 49-2)). 20 Summarized by the Plaintiff: “For years Defendant Suarez and Hunley purposely 21 continued long-standing local practices . . . relegating access to public information, public 22 access service interruptions and restoral of service to non-priority levels.” Id. at 15. Most 23 telling is Plaintiff’s allegation: “At $4 per document, the newish state-run system rate for 24 on-line access to those court case file documents evidently tries to approximate the 50 cents 25 per page that the Arizona legislature authorizes- and requires (A.R.S. § 12-284)- the Clerks 26 of the Superior Court to charge for printing and providing copies. Plaintiff could avoid 27 significant costs, hundreds of dollars a month, and review many more cases and document 28 1 when access to view and read documents was available via the public access computer.” 2 Id. at 7. 3 Importantly, the Court finds that the Plaintiff’s First Amendment claim is directed 4 at the free “public access computer,” not access, generally, which existed either through 5 the state-run on-line service for $4 per document or by hard copy at 50 cents a page. 6 Conclusion 7 Plaintiff offers no facts in his FAC or Responses to the Defendants’ Motions to 8 Dismiss to support his claims that his First Amendment right to free speech, i.e., 9 journalistic freedom,3 was violated or that the Defendants retaliated against him because 10 of his journalistic free-speech endeavors. His allegations of fact reflect only that he 11 routinely exercised his First Amendment right to journalistically attack the Defendants. 12 Plaintiff’s FAC and Response alleges nothing more than the fact of the criminal 13 investigation into his admitted publication of the grand jury murder-case transcript. His 14 assertion that the criminal investigation was retaliatory fails because the express provisions 15 of A.R.S. § 13-2812 make it a criminal misdemeanor to unlawfully commit a grand jury 16 disclosure: “if the person knowingly discloses to another the nature and substance of the 17 testimony.” It does not matter that in the end, the preliminary injunction was denied 18 because the court found the statute might be successfully attacked by the Plaintiff as overly 19 broad, and the transcript had been so widely disseminated that claw-back was pointless. 20 (Response (Doc. 43-2) at 16-22.) The Defendants based the criminal investigation on 21 admitted conduct that met the express elements of the misdemeanor statute. There is no 22 clearly established law which would have led a reasonable police officer to understand that 23 conducting the investigation under such circumstances violated the First Amendment to 24 the Constitution. The Court finds that qualified immunity bars the claims against the 25 investigating officers, including Defendant Borquez or any prosecutor acting as his 26 functional equivalent.
27 3 "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the 28 people peaceably to assemble, and to petition the government for a redress of grievances." (Emphasis added). 1 The Court turns to the claims against Defendants based on the letter written by 2 Defendant Monge, suspending face-to-face inmate visitation because the Plaintiff violated 3 jail policy by entering a secured area without authorization. There is no constitutional right 4 to face-to-face visits with prisoners. As long as there is an alternative means of 5 communication, restricting face-to-face media interviews with inmates does not violate 6 inmate or media First Amendment rights. Pell, 417 U.S at 824, 828, 835. “(N)ewsmen have 7 no constitutional right of access to prisons or their inmates beyond that afforded the general 8 public.” Id. at 834; see also Saxbe v. Washington Post Co., 417 U.S. 843, 849-50 (quoting 9 Procunier, 417 U.S at 835) (finding policy precluding face-to-face visits with prisoners, 10 except for clergy, family, and legal counsel, did “‘not deny the press access to sources of 11 information available to members of the general public.’” “Th[e] Court has never intimated 12 a First Amendment guarantee of a right of access to all sources of information within 13 government control.” Houchins v. KQED, Inc., 438 U.S. 1, 9 (1978) (plurality opinion). 14 “The First and Fourteenth Amendments do not guarantee the public a right of access to 15 information generated or controlled by government, nor do they guarantee the press any 16 basic right of access superior to that of the public generally.” Id. at 16 (Stewart, J., 17 concurring in judgment). 18 As alleged by the Plaintiff, the Defendants acted pursuant to neutral policies for 19 security reasons. Plaintiff has no right superior to that of the general public to visit with 20 inmates, including complying with prison security policies. Plaintiff retains the ability to 21 communicate with inmates through any alternative means besides face-to-face video or in- 22 person visits. The Court finds that there was no right clearly established by law such that a 23 reasonable officer in Defendant Monge’s position would have understood it was unlawful 24 under the First Amendment to suspend Plaintiff’s visitation privileges due to the security 25 violation, especially since the suspension allowed for alternative means of communication 26 with inmates. 27 Other than the impropriety of the suspension under the First Amendment, the 28 Plaintiff offers no other theory of liability for Defendants’ failure to respond to Plaintiff’s 1 inquiries related to it. The Court finds no clearly establish law such that a reasonable person 2 would have known failing to respond to Plaintiff’s inquiries regarding the suspension of 3 visitation rights violated the First Amendment. 4 Qualified immunity applies to bar the Plaintiff’s claims against the Cochise County 5 Defendants Monge, Dannels, and Bradshaw. 6 Likewise, there is no clearly established case law which would have led the County 7 Public Information Officer, Defendant Capas, to believe the Plaintiff had a First 8 Amendment right to prison records. The law is to the contrary. See In re Boston Herald, 9 Inc., 221 F.3d 174, (3rd Cir. 2003) (finding full scope of the constitutional right of access 10 is not settled in law, reviewing litany of cases, concluding cases demonstrate the First 11 Amendment does not grant the press or the public an automatic constitutional right of 12 access to every document connected to judicial activity, and finding no First Amendment 13 right to prisoner’s CJA financial documents); The law is the same, even if Plaintiff sought 14 general arrestee information from Defendant Capas. See, Los Angeles Police Dep't v. 15 United Reporting Pub. Corp., 528 U.S. 32, 32 (1999) (citing Houchins v. KQED, Inc., 438 16 U.S. at 14) (finding California could decide not to give out arrestee information at all 17 without violating the First Amendment). No reasonable officer in Defendant Capas’ 18 position would have understood it was unlawful to not provide daily reports due to 19 “technical difficulties.” 20 The conspiracy claims fall with the constitutional claims. Likewise, the Monell 21 claims fail. Additionally, the Plaintiff fails to allege a Monell claim. “A municipal entity 22 may be held liable only if the alleged wrongdoing was committed pursuant to a municipal 23 policy, custom or usage.” (MD (Doc. 32) at 11 (citing Bd. of County Comm’rs of Bryan 24 County, Oklahoma v. Brown, 520 U.S. 397, 402-04 (1997); Monell v. New York City Dept 25 of Soc. Serv., 436 U.S. 658, 691 (1978)). There is no respondeat superior liability between 26 the County Board of Supervisors and the Sheriff, County Attorney, or Clerk’s office 27 employees. (MD (Doc. 32) at 11-13.) 28 1 In pressing claims against the State Defendants, the Cochise County Clerks, the 2 Plaintiff relies on Press-Enterprise Co. v. Superior Court of California for Riverside, 478 3 U.S. 1 (1986) and Courthouse News Service v. Planet, 947 F.3d 581 (2020), applying 4 Press-Enterprise Co., which recognized a presumptive First Amendment right of access to 5 judicial proceedings and documents to the press, and expanded it to civil judicial 6 proceedings and documents. Courthouse News, 947 F.3d at 590-591. On January 1, 2020, 7 the Ninth Circuit considered the issue raised by the Plaintiff, as a matter of first impression, 8 recognized that the Supreme Court had not determined the issue, followed all the other 9 circuits having considered the question, and held that First Amendment free-press rights 10 apply to both civil and criminal proceedings. Id. “To determine whether a First Amendment 11 right of access attaches to a type of judicial proceeding or record, we consider (1) whether 12 that proceeding or record ‘ha[s] historically been open to the press and general public’ and 13 (2) ‘whether public access plays a significant positive role in the functioning of the 14 particular [governmental] process in question.’” Courthouse News, 947 F.3d at 590 15 (quoting Press-Enterprise II, 478 U.S. at 8) “A presumptive First Amendment right of 16 access arises if a proceeding or record satisfies both requirements of the two-part test.” 17 Courthouse News, 947 F.3d at 590. 18 As of January 20, 2020, under the clearly established law in the Ninth Circuit, there 19 is “a qualified right of timely access to newly filed civil nonconfidential complaints that 20 attaches when the complaint is filed. However, this right does not entitle the press to 21 immediate access to those complaints. Some reasonable restrictions resembling time, 22 place, and manner regulations that result in incidental delays in access are constitutionally 23 permitted where they are content-neutral, narrowly tailored and necessary to preserve the 24 court’s important interest in the fair and orderly administration of justice.” Courthouse 25 News Service, 947 F.3d at 585. Courthouse News does not aid the Plaintiff because 26 qualified immunity considers the “clearly established” law at the time the Defendants 27 allegedly violated the Constitution. See supra above (citing Behrens v. Pelletier, 516 U.S. 28 299, 304 (1996); Collins v. Jordan, 110 F.3d 1363, 1369 (9th Cir. 1996); Trevino v. Gates, 1 99 F.3d 911, 916 (9th Cir. 1996); Act Up/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 2 1993)). 3 Even if Courthouse News had issued sooner, it does not help the Plainiff. He alleges 4 claims against the State Defendants, the Cochise County Clerks, Defendants Suarez- 5 Dunlap and Hunley, that they “restricted” his access to review certain court case files 6 because they failed to establish written procedures and training for clerk’s office staff for 7 accessing public court case records, and the one public access computer in the clerk’s office 8 was frequently not working. First, there is no constitutional entitlement to written 9 procedures and training. There is only liability for constitutional violations which caused 10 by a lack of procedures and training for staff. 11 Plaintiff “protests too much” and defeats his case by complaining that hard-copy 12 records or records obtained through the state’s electronic system is too costly as compared 13 to the free-access public computer. In Courthouse News, the defendants had procedures in 14 place that precluded the newspaper reporters from accessing the hard-copy documents until 15 docketing was completed, with delays in docketing stretching over several days. 16 Admittedly, the Plaintiff has public access to the documents he seeks. It is just too slow, 17 too costly, or requires an inconvenient drive from Sierra Vista to Bisbee. At the time, there 18 was no clearly established law that would have led the Clerks of the Cochise County Court 19 to know free public records are a constitutional right because there is no such constitutional 20 requirement. Qualified immunity bars this claim against the State Defendants, acting 21 individually. 22 The conspiracy claims fall with the constitutional claims. For all the reasons 23 explained by the State Defendants, the Eleventh Amendment to the United States 24 Constitution precludes the Plaintiff from suing the State Defendants in their official 25 capacities. (MD (Doc. 45) at 8.) 26 Plaintiff does not dispute that the state law claims are barred by his failure to comply 27 with state Notice of Claim provisions, A.R.S. 12-821.01. (MD (Doc. 32) at 14-15); (MD 28 (Doc. 45) at 7-8). 1 The Court does not reach the Defendants’ Rule 8 assertions that Plaintiff failed to 2|| state facts as against specific Defendants, sufficiently, so that each Defendant may respond || to the charges made against her or him. This deficiency may be cured by amendment to 4|| state specific allegations against specific Defendants and identify who participated in 5 || which alleged activities and state what injury, if any, Plaintiff suffered as a result of the 6|| activities of each Defendant. Such an amendment would, however, not cure the defects of law found in the FAC. To the extent the Court has found that the Plaintiff fails to state a 8 || constitutional claim, the case must be dismissed. The federal courts are courts of limited 9|| jurisdiction and may only adjudicate those cases over which they have subject matter 10 || jurisdiction. Where there is no constitutional violation of an individuals’ rights, this Court 11 || has no jurisdiction. Kikkonen v. Guardian Life Insur. Co. of America, 511 U.S. 375 (1994). The case must also be dismissed under Twombly because the Plaintiff's FAC does not 13 || “contain sufficient factual matter’ to be “plausible.” Plaintiff does not provide grounds for his “entitlement to relief,” and the Court finds that no amendment can avoid prosecutorial 15 || immunity, qualified immunity, and the Eleventh Amendment. 16 Accordingly, 17 IT IS ORDERED that the County Defendants’ Motion to Dismiss (Doc. 32) is 18 |} GRANTED. 19 IT IS FURTHER ORDERED that the State Defendants’ Motion to Dismiss (Doc. || 45) is GRANTED. 21 IT IS FURTHER ORDERED that the Plaintiff's Motion to Amend (Doc. 49) is 22 || DENIED. 23 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment for Defendants. 25 Dated this 16th day of September, 2020. 26 SS 28 Cette La Ct Judge
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