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West v. United States

United States District Court, Ninth Circuit

August 21, 2013

Carl West, Plaintiff,
United States of America; Joe Gordwin, an FBI agent, Defendants.


G. MURRAY SNOW, District Judge.

Pending before the Court is Defendant United States of America's Motion to Dismiss. (Doc. 10.) For the reasons discussed below, the Motion is granted.


On June 20, 2002, Plaintiff Carl West was arrested and charged with conspiracy to commit armed burglary. (Doc. 7, Amend. Compl. ¶ 8.) In June 2003, West was convicted in Arizona Superior Court and sentenced to twenty years in prison. ( Id. ¶ 47.) West appealed the state court conviction and filed a petition for post-conviction relief on July 8, 2003. ( Id. ) West was granted a preliminary release by the Superior Court on February 11, 2011. ( Id. ¶ 48.) On December 21, 2012, the Superior Court overturned West's conviction based on improprieties that had occurred prior to and during West's criminal trial. ( Id. ¶¶ 49, 51.) The State of Arizona appealed the ruling. That appeal is currently pending with the Arizona Court of Appeals (Division One). ( Id. ¶ 51.)

Defendant Joe Gordwin, a former FBI special agent, was the lead investigator on West's case and worked with Mesa Police Detective Jeffrey Jacobs as part of the FBI Gang Task Force. ( Id. ¶ 10.) Gordwin had obtained wiretaps involving conversations between West and his criminal co-defendants about burglarizing a warehouse in downtown Phoenix, Arizona. ( Id. ¶¶ 12-13.) West was convicted based on that evidence and the testimony of his co-conspirators. ( Id. ¶ 16.) During the hearing on West's petition for post-trial relief, several witnesses recanted the testimony they had provided during his criminal trial, and Jacobs and others revealed that Gordwin had coerced the testimony of some of West's co-conspirators, including a woman with whom Gordwin was having an intimate relationship. ( Id. ¶¶ 16, 49-50.)

After his conviction was overturned, West brought this action against Defendants United States and Gordwin on February 11, 2013. (Doc. 1.) West filed an Amended Complaint (the "Complaint") on March 13, 2013, alleging the following counts against Defendants: (1) abuse of process; (2) malicious prosecution; (3) negligence; (4) intentional infliction of emotional distress; (5) negligent supervision; (6) violation of civil rights (malicious prosecution, false arrest and/or wrongful conviction) under 12 U.S.C. § 1983; (7) false arrest; (8) deliberate fabrication of evidence under § 1983; (9) wrongful conviction; (10) false imprisonment; (11) negligent misrepresentation; (12) fraud; (13) conspiracy; and (14) punitive damages. ( Id. at 12-24.) Defendant United States now moves to dismiss the Complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). (Doc. 10.)



The Court may only reach the merits of a dispute if it has jurisdiction to do so. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-95 (1998). Jurisdiction is limited to subject matter authorized by the Constitution or by statute. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Under Rule 12(b)(1), a defendant may challenge at any time a federal court's jurisdiction to hear the case. See Fed.R.Civ.P. 12(b)(1), 12(h)(3). In such a challenge, the defendant may either facially or factually attack the plaintiff's complaint for lack of subject matter jurisdiction. A facial challenge asserts that the complaint, on its face, fails to allege facts that would invoke federal jurisdiction. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2003). A factual attack, on the other hand, disputes the veracity of allegations in the complaint that would, if true, invoke federal jurisdiction. Id.

In resolving a motion under Rule 12(b)(1), the Court is not limited to the allegations in the pleadings if the "jurisdictional issue is separable from the merits the case." Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). "The court may view evidence outside the record, and no presumptive truthfulness is due to the complaint's allegations that bear on the subject matter [jurisdiction] of the court." see Greene v. United States, 207 F.Supp.2d 1113, 1119 (E.D. Cal. 2002) (citing Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). While lack of subject matter jurisdiction is an affirmative defense, "[t]he party asserting jurisdiction has the burden of proving all jurisdictional facts." Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (internal citation omitted).


A. Abuse of Process

Count One of the Complaint is a "State Claim for Abuse of Process" brought under the "Arizona Constitution, Article 2, Section 4." (Doc. 7 at 12-13.)

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A), "the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a ...

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