Olding v. Pima County Prosecutor's Office

• Court: District Court, D. Arizona
• Decided: April 16, 2025
• Docket: 4:25-cv-00158
• Status: Unknown

Opinion

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

9 Candace Sutherland Olding, No. CV-25-00158-TUC-JR

10 Plaintiff, REPORT AND RECOMMENDATION

11 v.

12 Pima County Prosecutor's Office, et al.,

13 Defendants. 14

15 16 On April 7, 2025, pro se Plaintiff Candace Sutherland Olding (“Plaintiff”) filed a 17 Complaint and an Application to Proceed In District Court without Prepaying Fees and 18 Costs (“Application to Proceed”). (Doc. 1, 2.) General Order 21-25 directs the undersigned 19 20 United Magistrate Judge to prepare a Report and Recommendation to the appropriate 21 designee in either Tucson or Phoenix/Prescott. Accordingly, the undersigned directs this 22 Report and Recommendation to United States District Judge Raner C. Collins.1 As more 23 fully set forth below, this Court recommends that the district court grant the Application to 24 25 Proceed and dismiss the Complaint for failure to state a claim. 26

27 1 As of this date of this Report and Recommendation the Chief United States District Judge for the District of Arizona is Jennifer G. Zipps. However, General Order 21-25 has not 28 been superseded. 1 Application to Proceed In Forma Pauperis 2 In her Application to Proceed, Plaintiff indicates that she has insufficient funds to 3 pay the filing fee for this action. (Doc. 2.) The Court recommends that the district court 4 5 exercise its discretion and grant Plaintiff’s Application to Proceed. 6 Statutory Screening of In Forma Pauperis Complaints 7 Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted 8 9 in forma pauperis status, the district court shall dismiss the case “if the court determines 10 that . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which 11 relief maybe granted; or (iii) seeks monetary relief against a defendant who is immune from 12 13 such relief.” 14 The district court must “construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 15 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se individual] ‘must be held to less 16 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 17 18 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). If the district court determines that a pleading 19 could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity 20 to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 21 22 1127-29 (9th Cir. 2000) (en banc). 23 The Complaint 24 Plaintiff alleges that she is a victim in a criminal case in the Arizona Superior Court, 25 26 Pima County, CR202110376-001. (Doc. 1 at 2.) Plaintiff names as Defendants the Pima 27 County Attorney’s Office, Pima County Attorney Laura Conover, and prosecutors of the 28 Pima County Attorney’s Office Bradley Roach and Alex Lambdin. Id. She claims her “civil 1 rights complaint arises from a years-long campaign of retaliation, defamation, and systemic 2 abuse of power by the Pima County Prosecutor’s Office […].” (Doc. 1 at 2.) She alleges 3 that “Defendants conspired to falsify evidence, violate due process, and weaponize the 4 5 legal system to destroy [her] career, parental rights, and reputation.” Id. 6 Plaintiff alleges the district court has federal question jurisdiction over Counts 1, 2 7 and 6 alleged in her Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1 at 4-6.) The 8 9 Complaint alleges as follows: In Count 1, Plaintiff alleges a due process violation resulting 10 from “Brady violations . . . and denial of right to be heard.” (Doc. 1 at 4, 5.) In Count 2, 11 Plaintiff alleges retaliation “for exposing misconduct (First Amendment).” Id. In Count 6, 12 13 Plaintiff alleges abuse of power due to “[d]eliberate indifference to constitutional duties.” 14 Id. at 6. 15 Plaintiff alleges that the district court has jurisdiction over the state law claims 16 alleged in Counts 3 through 5 and 7 of her Complaint. Id. Count 3 alleges defamation in 17 18 violation of Ariz. Rev. Stat. § 12-653 averring “[b]oth confidential and public documents 19 sent to government agencies […].” Id. at 5. Count 4 alleges intentional infliction of 20 emotional distress based upon alleged “SWAT raids, harassment, PTSD diagnosis.” Id. at 21 22 5-6. Count 5 alleges negligence based upon alleged “[r]eckless handling of case details . . 23 . [.]” Id. at 6. Count 7 alleges a violation of Ariz. Rev. Stat. § 13-4436 based upon the 24 “[d]eni[al of] the victim’s right to be heard.” Id. 25 26 Plaintiff seeks an award of compensatory damages in the amount of $1,500,000.00 27 and an award of punitive damages in the amount of $3,500,000.00. Id. Plaintiff seeks the 28 following injunctive relief: “[c]orrect falsified documents[,]” [b]an backdoor plea deals[,]” 1 and “[m]andate ethics training.” (Doc. 1 at 6.) Plaintiff also seeks a declaratory judgment 2 that the Pima County Attorneys Office’s “policies violate the Constitution.” Id. 3 Analysis 4 5 Actions Based on 42 U.S.C. § 1983 6 “A plaintiff may seek damages for violation of his federal constitutional rights under 7 42 U.S.C. § 1983.” Matwyuk v. Arizona, No. CV-22-08082-PCT-JAT (DMF), 2022 WL 8 9 2077967, at *3 (D. Ariz. June 9, 2022). To prevail in a § 1983 action, a plaintiff must 10 establish that: “(1) acts by the defendants; (2) under color of state law; (3) deprived him of 11 federal rights, privileges or immunities; and (4) caused him damage.” Matwyuk, 2022 WL 12 13 2077967, at *3 (citing Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 14 2005) (additional citation omitted)). Additionally, “a plaintiff must allege that he suffered 15 a specific injury as a result of the conduct of a particular defendant and he must allege an 16 affirmative link between the injury and the conduct of that defendant.” Matwyuk, 2022 WL 17 18 2077967, at *3 (citing Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976)). 19 The Complaint Fails to State a Claim For Relief 20 A pleading must contain a “short and plain statement of the claim showing that the 21 22 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8 does not demand detailed 23 factual allegations, “it demands more than an unadorned, the defendant-unlawfully- 24 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).“Threadbare recitals 25 26 of the elements of a cause of action, supported by mere conclusory statements, do not 27 suffice.” Id. “[A] complaint must contain sufficient factual matter, accepted as true, to 28 ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. 1 Twombly, 550 U.S. 544, 570 (2007)). 2 A claim is plausible “when the plaintiff pleads factual content that allows the court 3 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 4 5 Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 6 specific task that requires the reviewing court to draw on its judicial experience and 7 common sense.” Id. at 679. Thus, although a plaintiff’s specific factual allegations may be 8 9 consistent with a constitutional claim, a court must assess whether there are other “more 10 likely explanations” for a defendant’s conduct. Id. at 681. 11 Count 1, alleged ostensibly against all Defendants, alleges, “Brady violations 12 13 (Exhibit A, B) and denial of right to be heard.” (Doc. 1 at 5.) Exhibit A is a Motion to 14 Request Recording of Initial DCS Report that was filed by Plaintiff in the criminal case in 15 which she is a victim. (Doc. 1-3 at 14.) Exhibit B is an Administrative Law Judge decision 16 in an apparent proceeding before the Arizona Department of Child Safety. (Doc. 1-3 at 7- 17 18 15.) Count 2, also ostensibly against all Defendants, summarily and in conclusory fashion 19 alleges, “[r]etaliation for exposing misconduct.” (Doc. 1 at 5.) Count 6, also ostensibly 20 against all Defendants, summarily and in conclusory fashion alleges, “[d]eliberate 21 22 indifference to constitutional duties.” Id. at 6. 23 This Court finds that the Complaint fails to comply with the requirements of Rule 8 24 for several reasons. The Complaint does not provide Defendants sufficient notice of the 25 26 factual basis for Plaintiff's claims against them. Counts 1, 2 and 6 of the Complaint are 27 comprised of labels, conclusions, and “‘naked assertion[s]’ devoid of ‘[…] factual 28 enhancement,’ ” which are insufficient to state a claim. See Iqbal, 556 U.S. at 678, 129 1 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955). Counts 1, 2 and 6 of 2 the Complaint are merely conclusory allegations that fail to contain any facts connecting 3 any named Defendant's actions with an alleged deprivation of Plaintiff's rights. Thus, this 4 5 Court finds that Counts 1, 2 and 6 fail to state a claim upon which relief can be granted and 6 dismissal of the Complaint is recommended. 7 Additionally, this Court finds with respect to each named Defendant as follows: 8 9 Defendant Pima County Attorney’s Office 10 Plaintiff names as a Defendant the Pima County Attorney’s Office. (Doc. 1 at 2.) 11 District Judge David C. Bury recognized: 12 13 Governmental bodies have only the powers provided them by their enabling statutes. Ricca v. Bojorques, 13 Ariz. App. 10, 13, 473 P.2d 812 (Az. App. 14 1970). Although the Arizona legislature specifically designated the county as a political subdivision with authority to sue and be sued, it did not make 15 the same designation with respect to the Pima County Attorney's Office. 16 A.R.S. § 11–201. The Arizona legislature has also set forth the powers of a county attorney in statute. See A.R.S. § 11–532(A). None of the powers given 17 to a county attorney include the power to sue and be sued. Id. 18 . . . Furthermore, a county attorney's office is not a government entity which can 19 be sued under § 1983 separate from the individual who is the county 20 prosecutor or the governmental entity that the county prosecutor serves.

21 Kelly v. Pima Cnty. Just. Ct., No. CV-09-308-TUC-DCB (BPV), 2010 WL 2605804, at *2 22 (D. Ariz. Apr. 23, 2010), report and recommendation adopted, No. CV-09-308-TUC-DCB 23 24 (BPV), 2010 WL 2605799 (D. Ariz. June 25, 2010). See also Weaver v. Castillo, No. CV- 25 22-01888-PHX-DWL, 2022 WL 17741062, at *3 (D. Ariz. Dec. 16, 2022) (recognizing 26 that “the Maricopa County Attorney's Office is a non-jural entity that is incapable of suing 27 or being sued.” (citing Murrell v. Cohen, 2018 WL 11395316, *3 (D. Ariz. 2018)); 28 1 Matwyuk, 2022 WL 2077967, at *3 (recognizing that “[a] county attorney's office also is 2 not a ‘person’ under 42 U.S.C. § 1983.”); Wilson v. Yavapai Cnty., 2012 WL 1067959 (D. 3 Ariz. 2012) (recognizing, inter alia, that the county attorney's office is a non[-]jural entity). 4 5 Considering the foregoing, this Court finds that the Pima County Attorney’s Office 6 is a non-jural entity and cannot be sued under 42 U.S.C. § 1983. Accordingly, the 7 undersigned recommends that the district court dismiss with prejudice the Pima County 8 9 Attorney’s Office. 10 Prosecutors Bradley Roach and Alex Lambdin 11 Plaintiff also names Pima County Attorney’s Office prosecutors Bradley Roach and 12 13 Alex Lambdin as Defendants. (Doc. 1 at 2.) 14 The United States District Court for the District of Arizona has recognized that “[i]t 15 is well settled that judges and prosecutors are entitled to absolute immunity.” Weaver, 2022 16 WL 17741062, at *3 (quoting Mishler v. Clift, 191 F.3d 998, 1003 (9th Cir. 1999)). “This 17 18 absolute immunity reflects the long-standing general principle of the highest importance to 19 the proper administration of justice that a judicial officer, in exercising the authority vested 20 in him, shall be free to act upon his own convictions, without apprehension of personal 21 22 consequences to himself.’ ” Weaver, 2022 WL 17741062, at *3 (quoting Olsen v. Idaho 23 State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004)) (additional citation and internal 24 quotations omitted). “Courts have extended absolute judicial immunity from damage 25 26 actions under 42 U.S.C. § 1983 not only to judges but also to officers whose functions bear 27 a close association to the judicial process.” Weaver, 2022 WL 17741062, at *3 (quoting 28 Demoran v. Witt, 781 F.2d 155, 156 (9th Cir. 1985)). “Absolute immunity provides 1 protection from personal liability even for clearly erroneous or malicious behavior.” 2 Weaver, 2022 WL 17741062, at *3 (quoting Mason v. Arizona, 260 F. Supp. 2d 807, 820 3 (D. Ariz. 2003)). 4 5 Plaintiff alleges that she is a victim in a criminal case pending in Arizona Superior 6 Court, Pima County. (Doc. 1 at 2.) She summarily and in conclusory fashion alleges that 7 Pima County Attorney’s Office prosecutors Bradley Roach and Alex Lambdin “held 8 9 exculpatory evidence in favor of defendant and victim, falsified records and retaliated 10 against [her].” Id. Plaintiff’s sparse conclusory allegations relate to alleged conduct 11 undertaken by Defendants Roach and Lambdin in the administration of justice in exercising 12 13 the authority vested in them as Pima County Attorney’s Office prosecutors. Because 14 prosecutors are granted immunity for exercising the authority vested in them, this Court 15 recommends Defendants Bradley Roach and Alex Lambdin be dismissed with prejudice. 16 Pima County Attorney Conover 17 18 Plaintiff names Pima County Attorney Laura Conover as a Defendant. (Doc. 1 at 2.) 19 As to County Attorney Conover, Plaintiff summarily alleges in full: “(official/individual 20 capacity) who failed to reform unethical practices.” Id. 21 22 “A government official may be sued in [his or her] individual capacity for damages 23 under 42 U.S.C. § 1983 based on acts taken in an official capacity.” Rodriguez-Wakelin v. 24 Barry, No. CV-17-00376-TUC-RM, 2019 WL 4736922, at *4 (D. Ariz. Sept. 27, 2019) 25 26 (citing Hafer v. Melo, 502 U.S. 21, 31 (1991)). “In an individual-capacity suit, the plaintiff 27 must show that the individual defendant ‘was personally involved in the deprivation of [the 28 plaintiff's] civil rights.’” Rodriguez-Wakelim, 2019 WL 4736922, at *4 (citing Barren v. 1 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). 2 In contrast, an official-capacity suit “generally represent[s] only another way of 3 pleading an action against the entity of which an officer is an agent.” Rodriguez-Wakelin, 4 5 2019 WL 4736922, at *4 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)) (internal 6 quotation omitted). “Because the governmental entity is the real party in interest in an 7 official-capacity suit, the plaintiff must show that the entity had a policy or custom that 8 9 was the moving force behind the alleged constitutional violation.” Rodriguez-Wakelin, 10 2019 WL 4736922, at *4 (citing Hafer, 502 U.S. at 25). “Official-capacity suits ... 11 [represent] another way of pleading an action against an entity of which an officer is an 12 13 agent.” Donahoe v. Arpaio, No. CV-10-02756-PHX-NVW, 2012 WL 6102066, at *1 (D. 14 Ariz. Dec. 7, 2012) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 15 L.Ed.2d 114 (1985)). “A municipality may not be sued solely because an injury was 16 inflicted by its employees or agents.” Pereyda-Rios v. Arizona Dep't of Pub. Safety, No. 17 18 CV 18-00032-TUC-RM, 2018 WL 11265554, at *3 (D. Ariz. Mar. 28, 2018) (citing Long 19 v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006)). “The actions of individuals 20 may support municipal liability only if the employees were acting pursuant to an official 21 22 policy or custom of the municipality.” Pereyda-Rios, 2018 WL 11265554, at *3 (D. Ariz. 23 Mar. 28, 2018) (citing Botello v. Gammick, 413 F.3d 971, 978-79 (9th Cir. 2005)). 24 “A § 1983 claim against a municipal defendant ‘cannot succeed as a matter of law’ 25 26 unless a plaintiff: (1) contends that the municipal defendant maintains a policy or custom 27 pertinent to the plaintiff's alleged injury; and (2) explains how such policy or custom caused 28 the plaintiff's injury.” Pereyda-Rios, 2018 WL 11265554, at *3 (D. Ariz. Mar. 28, 2018) 1 (quoting Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir. 2006) (affirming dismissal of a 2 municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6))). 3 This Court finds that Plaintiff fails to allege facts that plausibly support a finding 4 5 that County Attorney Conover was personally involved in the alleged deprivation of her 6 constitutional rights. Plaintiff’s entire factual allegations against County Attorney Conover 7 are that she “failed to reform unethical practices.” (Doc. 1 at 2.) This Court therefore finds 8 9 that the Complaint fails to state a claim against County Attorney Conover in her individual 10 capacity. 11 This Court also finds that Plaintiff has failed to allege facts to support a plausible 12 13 determination that County Attorney Conover maintained a specific policy or custom that 14 resulted in a violation of Plaintiff's federal constitutional right. This Court finds that 15 Plaintiff has failed to explain how her injuries were caused by any municipal policy or 16 custom. Plaintiff fails to provide any factual support for her assertion that County Attorney 17 18 Conover “failed to reform unethical practices.” Plaintiff has also failed to allege that 19 County Attorney Conover’s alleged inaction violated her constitutional right and caused 20 her harm. 21 22 Because Plaintiff has failed to allege any specific facts showing that she is entitled 23 to relief against County Attorney Conover, this Court recommends that County Attorney 24 Conover be dismissed as a Defendant. 25 26 State Law Claims 27 As mentioned above, Counts 3 through 5 and 7 of the Complaint attempt to allege 28 violations of Arizona law. (Doc. 1 at 5-6.) 1 Section 1367(a), Title 28, United States Code, provides that “in any civil action of 2 which the district courts have original jurisdiction, the district courts shall have 3 supplemental jurisdiction over all other claims that are so related to claims in the action 4 5 within such original jurisdiction that they form part of the same case or controversy under 6 Article III of the United States Constitution.” 28 U.S.C. § 1367(a). The exercise of 7 supplemental jurisdiction is discretionary—“district courts can decline to exercise 8 9 jurisdiction over [supplemental] claims for a number of valid reasons.” Infinite Growth 10 Grp., LLC v. Haasnoot, No. 2:10-CV-02652 JWS, 2011 WL 767227, at *2 (D. Ariz. Feb. 11 28, 2011) (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 12 13 523, 139 L.Ed.2d 525 (1997)). A district court may decline to exercise supplemental 14 jurisdiction over a claim, inter alia, where “the district court has dismissed all claims over 15 which it has original jurisdiction.” Infinite Growth Grp., LLC, 2011 WL 767227, at *2 16 (quoting 28 U.S.C. § 1367(c)(3).) 17 18 Because this Court finds that Plaintiff’s Complaint fails to state a claim over which 19 the district court has federal question jurisdiction, this Court finds that the district court 20 should decline to exercise supplemental jurisdiction over the state law claims that Plaintiff 21 22 attempts to allege in her Complaint. 23 Dismissal With and Without Leave to Amend is Recommended 24 Dismissal without leave to amend is recommended with respect to the claims that 25 26 are alleged against Defendants the Pima County Attorney’s Office, Bradley Roach and 27 Alex Lambdin as no amendment could cure the deficiencies identified above with respect 28 to these Defendants. Dismissal of Plaintiff’s claim against County Attorney Conover with 1 leave to amend is recommended. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), 2 superseded by statute as stated in Akhtar v. Mesa, 698 F.3d 1202 (2012) (leave to amend 3 is liberally granted unless clear deficiencies cannot be cured by amendment). The above- 4 5 mentioned reasons for the recommended dismissal allow Plaintiff to make an intelligent 6 decision regarding whether to file an amended complaint. See Bonanno v. Thomas, 309 7 F.2d 320, 322 (9th Cir. 1962). 8 9 Any amended complaint that Plaintiff files must be retyped or rewritten in its 10 entirety and may not incorporate any part of the original Complaint by reference. Any 11 amended complaint must be clearly designated as an amended complaint on its face and 12 13 formatted in compliance with L.R.Civ 7.1. If an amended complaint fails to state a claim 14 upon which relief may be granted this action will likely be dismissed with prejudice in full. 15 Plaintiff is advised that if she fails to timely comply with every provision of the district 16 court’s order, the district court may dismiss this action under Fed. R. Civ. P. 41(b). See 17 18 Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (district court may dismiss action 19 for failure to comply with court order). 20 If Plaintiff files an amended complaint, Plaintiff must write short, plain statements 21 22 telling the district court: (1) the constitutional right Plaintiff believes was violated; (2) the 23 name of the Defendant who violated the right; (3) exactly what that Defendant did or failed 24 to do; (4) how the action or inaction of that Defendant is connected to the violation of 25 26 Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that 27 Defendant's conduct. See Rizzo, 423 U.S. at 377. 28 Plaintiff must repeat this process for each person named as a Defendant. If Plaintiff 1 fails to affirmatively link the conduct of each named Defendant with the specific injury 2 allegedly suffered, the allegations against that Defendant will be dismissed for failure to 3 state a claim. Conclusory allegations that a Defendant or group of Defendants violated 4 5 a constitutional right are insufficient to state a claim and will be dismissed. 6 Recommendation 7 As noted, supra, General Order 21-25 directs this Court to prepare a Report and 8 9 Recommendation to the appropriate designee in either Tucson or Phoenix/Prescott. 10 Accordingly, the Court directs this Report and Recommendation to the Honorable Raner 11 C. Collins. For the reasons set forth above, the undersigned Magistrate Judge 12 13 RECOMMENDS that the district judge enter an order: 14 (1) GRANTING Plaintiff’s Application to Proceed in District Court Without 15 Prepaying Fees or Costs (Doc. 2); and 16 (2) DISMISSING Plaintiff’s Complaint (Doc. 1) with leave to file an amended 17 18 complaint within 30 days. 19 … 20 … 21 22 … 23 … 24 … 25 26 … 27 … 28 … 1 Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil 2 Procedure, any party may serve and file written objections within fourteen (14) days after 3 4 being served with a copy of this Report and Recommendation. A party may respond to 5|| another party’s objections within fourteen (14) days after being served with a copy. Fed. 6 R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from Judge Collins. 7 g Failure to file timely objections to any factual or legal determination of the Magistrate || Judge may result in waiver of the right of review. 10 IT IS FURTHER ORDERED that the Clerk of Court refer this matter to the 11 Honorable Raner C. Collins.

13 Dated this 16th day of April, 2025. 14 15 16 elven. be 17 Hoflorable Jacqueline M. Rateau 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28

-14-