United States District Court, D. Arizona
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Carl West, Plaintiff: David W Dow, LEAD ATTORNEY, Law Offices
of David W Dow PC, Phoenix, AZ.
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,
Duane Van Norman, an individual, Kelvin Smith, an individual,
Defendants: Jason Keith Reed, LEAD ATTORNEY, Mesa City
Attorneys Office, Mesa, AZ.
Gordwin, Consol Defendant, Pro se, Sugar Land, TX.
G. Campbell, United States District Judge.
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.
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
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
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
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).
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.
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
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
Gordwin's Motion to Dismiss.
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.
Section 1983 Abuse of Process.
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 . . .
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.
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
Plaintiff has stated a Bivens claim against Gordwin.
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
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 ...