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West v. City of Mesa

United States District Court, D. Arizona

September 9, 2015

Carl West, Plaintiff,
City of Mesa, et al., Defendants

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          For Carl West, Plaintiff: David W Dow, LEAD ATTORNEY, Law Offices of David W Dow PC, Phoenix, AZ.

         For Jeffrey Jacobs, a police Defendant for the City of Mesa/ husband, Defendant: Jason Keith Reed, LEAD ATTORNEY, Mesa City Attorneys Office, Mesa, AZ; Katherine R Branch, LEAD ATTORNEY, U.S. Attorneys Office - Phoenix, AZ, Phoenix, AZ; Peter Michael Lantka, LEAD ATTORNEY, U.S. Attorneys Office, Phoenix, AZ.

         For Duane Van Norman, an individual, Kelvin Smith, an individual, Defendants: Jason Keith Reed, LEAD ATTORNEY, Mesa City Attorneys Office, Mesa, AZ.

         Joe Gordwin, Consol Defendant, Pro se, Sugar Land, TX.

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         David G. Campbell, United States District Judge.

         Defendant Joe Gordwin has filed a motion to dismiss (Doc. 72) and a motion for summary judgment (Doc. 93). Defendants Duane Van Norman and Kelvin Smith have filed a joint motion to dismiss (Doc. 87). Defendants United States and Jeffrey Jacobs have filed a joint motion for summary judgment (Doc. 91), and a motion to strike Plaintiff's expert and expert report (Doc. 85). The motions are fully briefed, and no party has requested oral argument. The Court will grant in part and deny in part Gordwin's motion to dismiss, deny Gordwin's motion for summary judgment, grant Van Norman and Smith's motion to dismiss, grant the United States and Jacobs' motion for summary judgment, and grant the United States and Jacobs' motion to strike.

         I. Background.

         The following facts are taken directly from the Court's April 29, 2015 order granting City of Mesa's motion to dismiss, and granting in part and denying in part the motion to dismiss of the United States, Brian Truchon, and Jeffrey Jacobs.

In February 2003, Plaintiff Carl West was tried and convicted in state court of conspiracy to commit armed robbery. The lead investigator was former FBI Special Agent Joe Gordwin. Gordwin worked with Jeffery Jacobs, a Mesa Detective, on the FBI's Violent Street Gangs Task Force, a joint operation between

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the FBI and the Mesa Police Department. Supervisory Special Agent Brian Truchon was Gordwin's supervisor at the time.
While West was in prison, an investigation revealed misconduct by Gordwin. On May 28, 2008, Gordwin was indicted for several crimes including wire fraud and witness tampering. Thereafter, West filed a motion for post-conviction relief, which was granted by the state court. As a result, West was released from prison on February 11, 2011. On August 22, 2013, all charges against him were dropped.
On February 6, 2012, Plaintiff filed an action in state court alleging multiple violations relating to his investigation and trial. Doc. 1-2. The case was removed to this Court and assigned to Judge John Sedwick. In July 2012, a motion to dismiss by Defendants Mesa and Jacobs was granted. The ruling was appealed to the Ninth Circuit, which affirmed in part and vacated in part.
On February 10, 2014, Plaintiff filed a second action in this Court (CV-14-254) that was eventually assigned to the undersigned judge. Given the overlap between the new case and Judge Sedwick's case, the two matters were consolidated as the present case. Plaintiff filed a motion for leave to file a Consolidated Complaint alleging nine counts against the United States, Gordwin, Truchon, Mesa, Jacobs, Duane Van Norman, and Kelvin Smith. The Court granted the motion for counts one through five, but denied leave to assert counts six through nine. Thus, only the following counts remain: (1) violation of 42 U.S.C. § 1983 -- abuse of process, (2) violation of constitutional rights pursuant to Bivens, (3) violation of 42 U.S.C. § 1983 -- malicious prosecution, (4) state law malicious prosecution, and (5) 42 U.S.C. § 1985 conspiracy.

Doc. 64 at 1-2 (internal citations omitted).

         On May 18, 2015, the Court reinstated count four against the United States. Doc. 71 at 2. The claims remaining, therefore, are: (a) counts one through five against Gordwin, (b) counts one through three against Van Norman and Smith, (c) count two against Jacobs, and (d) count four against the United States. Doc. 27-2.

         II. Legal Standards.

         When analyzing a complaint for failure to state a claim to relief under Rule 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the complaint must plead enough facts to state a claim to relief that is plausible on its face. Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This plausibility standard " is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). " [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

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          A party seeking summary judgment " bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows " that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is also appropriate against a party who " fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be " such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         III. Gordwin's Motion to Dismiss.

         Gordwin seeks dismissal of all five claims alleged against him. These include: (1) § 1983 abuse of process, (2) Bivens violation, (3) § 1983 malicious prosecution, (4) state-law malicious prosecution, and (5) § 1985 conspiracy. Based on much of the same reasoning set forth in the Court's April 29, 2015 order, the Court will dismiss counts one, three, and five.

         A. Section 1983 Abuse of Process.

         Plaintiff alleges that " [t]he actions taken by the Defendants in presenting false testimony and evidence to procure a conviction violated Plaintiff's Constitutional Rights[.]" Doc 27-2, ¶ 42. He further alleges that Gordwin and the other Defendants " had an ulterior motive to wit: to kill Christopher Alexander and Byron Murphy . . . and they committed a willful act in the use of the process not in the regular conduct of the proceeding by using informants that were having a romantic relationship . . . ." Id.

         The Court has already addressed these allegations with respect to other named Defendants in this case, finding that Plaintiff failed to allege the necessary elements of an abuse of process claim. Specifically, the Court found that Plaintiff failed to " allege that Defendants used the judicial process for a purpose other than the purpose for which it was created." Doc. 64 at 7 (citing Morn v. City of Phoenix, 152 Ariz. 164, 730 P.2d 873, 876 (Ariz. Ct.App. 1986) (noting extortion as a possible improper purpose)). In addition, the Court noted that the allegations were " substantially similar to those alleged in the complaints addressed by this Court and the Ninth Circuit . . . both of which found Plaintiff's abuse of process claim barred by the applicable two-year statute of limitations." Id. The result is the same here. This claim will be dismissed against Gordwin.

         B. Bivens Claim.

         Plaintiff brings a claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that the " actions taken by the Defendants in presenting false testimony as set forth in Count One to procure a conviction violated Plaintiff's Constitutional Rights," and that " Defendants were federal agents acting under color of federal authority based on the task force." Doc. 27-2, ¶ ¶ 49, 50. The Court previously found that Plaintiff failed to state a claim against Truchon, but that Plaintiff adequately alleged a Bivens claim against Jacobs. The Court finds

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Plaintiff has stated a Bivens claim against Gordwin.

         A complaint " sufficiently sets forth the elements of a Bivens claim by alleging a violation of . . . constitutional rights by agents acting under the color of federal law." Morgan v. United States, 323 F.3d 776, 780 (9th Cir. 2003). As an FBI Special Agent, Gordwin was acting under color of federal law. Plaintiff alleges Gordwin and Jacobs conspired to " implicate, arrest and prosecute Mr. West and Mr. Alexander in the warehouse robbery without probable cause." Doc. 27-2, ¶ 19. Plaintiff further alleges Gordwin carried on an affair with a witness in Plaintiff's case. Id., ¶ 20. As the Court noted in its previous order, the complaint " contains numerous allegations that Jacobs pressured witnesses into giving false testimony and provided benefits to those who cooperated." Doc. 64 at 9. These allegations are sufficient to allege an underlying constitutional violation -- malicious prosecution without probable cause in violation of the Fourth Amendment. Id. at 8-9. Because Gordwin is alleged to have taken part in procuring false testimony and conspiring with Jacobs, " [t]hese allegations give rise to a plausible inference that [Gordwin] engaged in conduct that violated Plaintiff's constitutional rights." Id.

         Gordwin argues that individuals acting under the color of federal law cannot be held liable under § 1983. This argument is off-point. Plaintiff seeks relief in this count under Bivens, not § 1983, and Bivens provides a cause of action for individuals whose constitutional rights are violated by federal actors. Gordwin was a federal actor, and Plaintiff sufficiently ...

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