Mulleneaux v. State

950 P.2d 1156, 190 Ariz. 535, 241 Ariz. Adv. Rep. 19, 1997 Ariz. App. LEXIS 62

• Court: Court of Appeals of Arizona
• Decided: April 22, 1997
• Docket: 1 CA-CV 96-0286
• Status: Published

Opinions

OPINION

KLEINSCHMIDT, Judge.

The Plaintiffs, Gary and Constance Mulleneaux, owned a corporation, Janac, Inc., that solicited funds by telephone on behalf of various organizations, among them, the Arizona Police Athletic Federation. The Phoenix police, alleging a belief that the Plaintiffs were engaged in fraudulent solicitation, executed a search warrant on the business and seized the corporation’s computers, printers, payroll records and office supplies. As a result, Janac was forced to go out of business.

The Plaintiffs assert that the Defendants were not motivated by a sense of duty to enforce the law. Instead, they say, the Defendants were both jealous of Gary Mulleneaux, who was a former Phoenix police officer, for the money he was making and resentful of the fact that he was doing it by soliciting for organizations that were affiliated with the police. Accordingly, in July 1995, the Plaintiffs filed a complaint naming the State, the Attorney General’s Office, the Attorney General, an Assistant Attorney General and his wife, the City of Phoenix, the Phoenix Police Department, an individual police detective and his wife and various unnamed individuals as defendants. The Plaintiffs later amended the complaint to allege three counts against the Defendants. In count one, the Plaintiffs alleged that the rights “secured to them by the constitution and the laws of the United States” had been violated giving rise to a claim under 42 U.S.C. § 1983. Count two was a claim for conversion of personal property. Count three asserted that the Defendants intentionally interfered with Janac’s contracts and business relations.

In October 1995, the State of Arizona, the State of Arizona Office of the Attorney General, Attorney General Grant Woods and Assistant Attorney General Michael C. Cudahy and his wife moved to dismiss on four grounds: (1) failure to bring the claim within 180 days as required by Arizona Revised Statutes Annotated (A.R.S.) section 12-821.01 “regarding claims against public entities or public employees,” (2) failure to comply with the one-year statute of limitations, (3) “failure to state a claim upon which relief [could] be granted,” and (4) because “the Attorney General’s Office is a non-jural entity.” The City of Phoenix and Detective John Stahl and his wife answered the amended complaint in November 1995. They asserted several defenses including: (1) failure to state a claim and (2) failure to timely meet the filing requirements of A.R.S. sections 12-821 and 12-821.01.

The trial court dismissed the action for the following reasons: the entire action was dismissed as to the Attorney General’s Office because it is a non-jural entity; count one, the § 1983 action, was dismissed as to all defendants on two grounds, first, it was not brought within the one-year statute of limitations as provided by A.R.S. section 12-821 and, second, the Plaintiffs failed to state a claim upon which relief could be granted; counts two and three were dismissed as to all Defendants because the Plaintiffs failed to comply with the time requirements of A.R.S. section 12-821.01, which requires claims to be brought against public entities or employees within 180 days of the accrual of the cause of action.

We will review the dismissal of count one first. The allegations in the amended complaint are considered true, and we will uphold the dismissal only if the facts susceptible of proof will support no ground for relief. Weekly v. City of Mesa, 181 Ariz. 159, 162, 888 P.2d 1346, 1349 (App.1994). We review legal issues de novo. Id. at 163, 888 P.2d at 1350. We will sustain the trial court’s ruling if the result is correct even if the court’s reasoning was not. Mental Health Case No. MH 94-00592, 182 Ariz. 440, 897 P.2d 742 (App.1995).

THE DISMISSAL OF THE § 1983 CLAIM AGAINST THE STATE AND THE ATTORNEY GENERAL WAS PROPER

Count one is based on 42 U.S.C. § 1983 which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

(1994). The Plaintiffs alleged that “all Defendants” acted under color of law to deprive “Plaintiffs of their rights, privileges, and immunities secured to them by the constitution and the laws of the United States.”

The status of the defendant is critical when evaluating whether a claim has been stated under § 1983. The United States Supreme Court has held that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2321, 105 L.Ed.2d 45 (1989). Therefore, count one did not state a cause of action against the State of Arizona; the State of Arizona, Office of the Attorney General; .Grant Woods, Attorney General in his official capacity; or Michael C. Cudahy, Assistant Attorney General in his official capacity.

THE DISMISSAL OF THE § 1983 CLAIM AGAINST THE MUNICIPAL DEFENDANTS WAS PROPER

We next discuss the § 1983 claim as it relates to the City of Phoenix, the City of Phoenix Police Department and Detective John Stahl in his official capacity (Municipal Defendants). See Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114 (1985) (suit against an officer in his official capacity is another way of pleading an action against the entity of which the officer is an agent). Municipalities and local governments are “persons” for purposes of a § 1983 action. Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In order to state a claim for relief under a § 1983 against a municipality, two elements must be satisfied: first, the harm must have been caused by a constitutional violation and, second, the municipality must be responsible for such constitutional violation. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

A municipality or municipal agency cannot be held liable under § 1983 on a respondeat superior theory. Monell, 436 U.S. at 690-94, 98 S.Ct. at 2035-38. A municipality, however, can be held liable under § 1983 if a policy or custom of the municipality caused the constitutional harm. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). “ ‘[A] bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice’ ” will satisfy pleading requirements. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir.1988) (quoting Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)). It follows that at a minimum the pleading must allege that a municipal policy or custom was responsible for the harm. The amended complaint failed to meet this liberal pleading requirement.

The amended complaint generally alleges that the Municipal Defendants acted “under color of state statute, regulation, custom, or usage” when they deprived the Plaintiffs of their rights. Nowhere in the complaint is there an allegation that the Municipal Defendants acted in compliance with or pursuant to a municipal policy or custom. See id. (court held that amended complaint stated a claim against municipality when it alleged action pursuant to official policy of city and police department in addition to action under color of state law). Therefore, the amended complaint did not state facts and allegations that satisfy both prongs of a § 1983 claim against the Municipal Defendants and count one against these Defendants was properly dismissed.

THE DISMISSAL OF THE § 1983 CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS WAS NOT PROPER

We turn now to the sufficiency of the allegations of count one as they relate to the Attorney General, the Assistant Attorney General and his wife, and the Phoenix police detective and his wife (Individual Defendants). To state a claim against an individual, a plaintiff must allege that the person deprived him of a federal or constitutional right and acted under color of law in doing so. Gomez v. Toledo, 446 U.S. 635, 639-40, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980).

The complaint, read broadly, has alleged the deprivation of a constitutional right. A deprivation of a constitutional right is sufficiently pled in a § 1983 action if facts are alleged “which show a deprivation of a right, privilege or immunity secured by the Constitution or federal law....” Lopez v. Department of Health Sens., 939 F.2d 881, 883 (9th Cir.1991). It is not necessary “to state the statutory or constitutional basis for” a claim as long as the underlying facts are present. McCalden v. California Library Ass’n, 955 F.2d 1214, 1223 (9th Cir. 1990), cert. denied, 504 U.S. 957, 112 S.Ct. 2306, 119 L.Ed.2d 227 (1992).

The amended complaint provides that “[a]ll of the Defendants acted in concert with one another and conspired with each other to deprive Plaintiffs of their rights ...,” “the Defendants have acted in concert with one another and conspired with each other to forfeit and convert Plaintiffs’ personalty,” the “Defendants became dissatisfied with what they perceived to be the lucrative nature of the [Plaintiffs’] business,” the “Defendants, acting in concert, formed an illegal scheme to put Plaintiff Janac out of business,” the Defendants obtained a search warrant with the intent “to destroy the business affairs of Plaintiffs,” the Defendants took property “which could not possibly be utilized as evidence” but was taken “to destroy the business affairs of Plaintiffs,” and the Defendants kept the property of the Plaintiffs “thereby putting the business out of business.”

The amended complaint sufficiently alleges that the Individual Defendants deprived the Plaintiffs of their constitutional rights. See Bergquist v. County of Cochise, 806 F.2d 1364 (9th Cir.1986) (execution of warrant in unreasonable manner may present liability under § 1983); Mann v. City of Tucson, 782 F.2d 790 (9th Cir.1986) (substantive due process violated by unreasonable taking of property regardless of process by which taking is accomplished); Uptown People’s Community Health Servs. Bd. of Directors v. Board of Comm’rs of Cook County, 647 F.2d 727, 734 (7th Cir.1981) (“[s]tate deprivation of property rights is cognizable under § 1983.”) (citing Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), cert. denied, 454 U.S. 866, 102 S.Ct. 328, 70 L.Ed.2d 167 (1981); Robinson v. City of Seattle, 119 Wash.2d 34, 830 P.2d 318 (1992) (property rights and personal liberties are within protection of § 1983), cert. denied, 506 U.S. 1028, 113 S.Ct. 676, 121 L.Ed.2d 598 (1992)). At a minimum, the amended complaint articulated a violation of the Plaintiffs’ due process rights in their property.

We have also considered whether the conspiracy was pled with the requisite specificity. In Hoffman v. Halden, 268 F.2d 280, 294-95 (9th Cir.1959), overruled on other grounds by Cohen v. Norris, 300 F.2d 24, 29-30 (1962), the United States Court of Appeals for the Ninth Circuit held that an allegation that the defendants “ ‘did purposely and systematically and intentionally discriminate against plaintiff and subjected him to treatment in the following particulars which were not privileged or compelled by law ... ’was a sufficient pleading because:

In what other way can plaintiff plead conspiracy? Certainly he is not required to list the place and date of defendants’ meetings and the summary of their conversations. He should not be required here to plead his evidence.

See also Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1126 (10th Cir.1994). In a later Ninth Circuit case, Uston v. Airport Casino, Inc., 564 F.2d 1216 (9th Cir.1977), the court concluded that a complaint, deficient for a number of reasons, was also defective because in pleading conspiracy “the record [was] devoid of specific factual allegations to support the claim.” 564 F.2d at 1217. In the case before us, the Plaintiffs have alluded to specific acts by the Defendants done with an improper intent which allegedly deprived them of their rights. We conclude that the Plaintiffs pled conspiracy with the requisite specificity.

The court’s other reason for dismissing the § 1983 count was that the Plaintiffs failed to comply with A.R.S. section 12-821 (Supp.1996), which requires actions against public entities or public employees to be brought within one year. However, on appeal the State, in its responsive brief, concedes that the one-year limitations period does not apply to federal claims under 42 U.S.C. § 1983. Indeed Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), appears to be controlling and indicates that Arizona’s filing requirement is preempted as inconsistent with federal law. Therefore, count one was improperly dismissed as to the Individual Defendants on this basis.

COUNTS TWO AND THREE WERE PROPERLY DISMISSED AS TO ALL PARTIES

Counts two and three were properly dismissed as to all parties. Arizona Revised Statutes section 12-821.01 provides:

A. Persons who have claims against a public entity or a.public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee ... within one hundred eighty days after- the cause of action accrues.

Both the State and Municipal Defendants invoked this statute. The Plaintiffs failed to refute in their response to the Defendants’ motion to dismiss, that section 12-821.01 bars these two counts and on appeal they do not challenge the application of that statute.

Finally, the Plaintiffs assert that it was error for the trial court to dismiss the action as to the Municipal Defendants as they did not join in the State’s motion to dismiss. Dismissal of the claims against the Municipal Defendants was proper because they raised sufficient grounds in their answer to support dismissal. We do not address the issue of whether the Attorney General’s Office is a jural entity for purposes of being sued as we have disposed of the claims against it on other grounds.

CONCLUSION

The order of the trial court dismissing count one as to the State of Arizona, the State of Arizona Attorney General’s Office, the Attorney General in his official capacity, the Assistant Attorney General in his official capacity, the City of Phoenix, the City of Phoenix Police Department, and the police detective in his official capacity is affirmed. The order dismissing counts two and three as to all Defendants is affirmed. The order dismissing count one as to the Attorney General, the Assistant Attorney General and his wife and the police detective and his wife in their individual capacities is reversed. The case is remanded to the trial court for further proceedings.

GRANT, J., concurring.