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Johnson v. Brady

United States District Court, D. Arizona

June 17, 2015

Derrick Johnson, Plaintiff,
v.
Robert Brady, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

In September of 2013, Officers Brady and Newton stopped and arrested Derrick Johnson for misconduct involving weapons. Shortly after securing an indictment against Johnson, the local prosecutor dismissed the charges. Johnson then filed a civil action against almost every public entity and employee involved in these events. Doc. 1. On Defendants' motions, the Court dismissed all of Johnson's claims except for his § 1983 claim of false arrest against Officers Brady and Newton. The Court also granted leave to amend. Johnson has now filed his amended complaint (Doc. 44), Defendants have filed new motions to dismiss (Docs. 49-52), and Johnson has responded (Docs. 54-55). The Court will grant the motions to dismiss in part.

I. Analysis.

Plaintiff has named as defendants Officers Robert Brady and Jesse Newton. The two officers work in the Town of Quartzsite and participated in Plaintiff's arrest. Plaintiff has also sued County Attorney Tony Rogers, Public Defender Robin Puchek, Public Defender Fred Welch, and Judge Samuel Vederman, all of whom were involved in Plaintiff's criminal case. These Defendants work in La Paz County and Plaintiff has sued La Paz County and the La Paz County Board of Supervisors ("La Paz County Defendants").

Because this is the second round of motions to dismiss and Plaintiff's amended complaint is similar to the first, the Court will deal with these issues in short order. The Court notes that Fred Welch has not yet been served, and Defendants Tony Rogers and La Paz County Board of Supervisors have not joined the motions to dismiss. But because this is an IFP proceeding (Doc. 8), the Court may independently determine whether the complaint states a claim against these Defendants. See 28 U.S.C. § 1915(e)(2) (a district court "shall dismiss the case at any time if the court determines that... the action... fails to state a claim on which relief may be granted[.]"). To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A. Claims Against Defendants Samuel Vederman & Tony Rogers.

In an earlier order, the Court found that "Plaintiff's claims against Defendants Vederman and Rogers cannot be cured by further amendment. His claims against these Defendants relate to actions they took while judging or prosecuting his case, for which they are protected by immunity under both federal and state law.... If Plaintiff chooses to file an amended complaint, Plaintiff may not re-assert these claims against these Defendants." Doc. 37 at 15. Plaintiff has nonetheless re-asserted his claims against these Defendants. His new factual allegations do not overcome their immunity. Plaintiff argues that raising immunity as a defense in a motion to dismiss is improper. Doc. 55. Plaintiff is wrong, and the Court will dismiss Defendants Vederman and Rogers.

B. State-Law Claims.

All of the Defendants in this case are public entities or employees. Under Arizona law, persons with "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." A.R.S. § 12-821.01. Notice of the claim must be given to both the employee individually and his employer. Harris v. Cochise Health Sys., 160 P.3d 223, 230 (Ariz.Ct.App. 2007). "Compliance with the notice [requirement] is a mandatory' and essential' prerequisite to [a civil] action and a plaintiff's failure to comply bars any claim.'" Salerno v. Espinoza, 115 P.3d 626, 628 (Ariz.Ct.App. 2005) (emphasis in original) (citations omitted). Plaintiff still has not alleged or proven that he served a notice of his claim on Defendants Rogers, Brady, Newton, Puchek, Welch, and the Town of Quartzsite. For that reason, his state-law claims against these Defendants will be dismissed.

Plaintiff did file a notice of claim with the La Paz County Board of Supervisors. Doc. 11-1 at 5-17. His state-law claims against the La Paz County Defendants are for malicious prosecution, false imprisonment, and intentional infliction of emotional distress. Doc. 48, ¶¶ 41-54. Plaintiff presumably asserts these claims against the La Paz County Defendants on the basis of respondeat superior. Thus, their liability "would depend on the necessary finding of liability on the part of their agent." Mulligan v. Grace, 666 P.2d 1092, 1094 (Ariz.Ct.App. 1983). The only possible agents of the La Paz County Defendants are Defendants Tony Rogers, Robin Puchek, Judge Vederman, and Fred Welch. Vederman and Rogers cannot be liable. Thus, the La Paz County Defendants' liability must depend on that of Puchek or Welch. Plaintiff's allegations against these Defendants are as follows:

20. On 10/2/13, Defendant Puchek was assigned to represent Plaintiff as a public defender. In a letter... that was dated 10/2/13, he wrote to inform Plaintiff of a scheduled preliminary hearing on 10/7/13.
25. On 12/4/13, Plaintiff first received a copy of certified grand jury transcript from Defendant Puchek, 34 days after being filed.
26. On 12/7/13, Plaintiff submitted a motion... to discharge Puchek from representing Plaintiff for intentional misconduct that included withholding grand jury transcript. Failure to inform Plaintiff of grand jury indictment and failure to move for suppression of evidence were additional acts by Puchek that were in furtherance of the conspiracy to maliciously prosecute Plaintiff.
28. Then, Vederman appointed Welch as Plaintiff's counsel
32. On 1/13/14, prior to an illegal motion to remand hearing... for the 12/27/13 motion, I met with Welch for the first time and informed him of the basis of this hearing. At the hearing Welch presented an oral argument and excluded Rules 12.6 and 12.8(c). Vederman denied Plaintiff's motion to remand. I orally motioned that Welch be discharged, but Vederman allowed him to withdraw instead. By excluding Plaintiff's reasons for a motion to remand, Welch acted in furtherance of the conspiracy to maliciously prosecute the Plaintiff.

The Court finds that these allegations would not make Defendants Puchek and Welch liable for malicious prosecution, false imprisonment, or intentional infliction of emotional distress. See Doc. 37 at 9. There being no basis for the La Paz County Defendants' liability, the ...


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