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Kimm v. Brannan

United States District Court, D. Arizona

October 8, 2015

Jack Kimm, Plaintiff,
Martin Brannan, et al., Defendants.

ORDER AND OPINION [Re: Motions at doc. 28, 39]



At docket 28, defendants Martin Brannan, Samuel Verderman, Thomas Jones, Frank Haws, and La Paz County (collectively “County Defendants”) filed a motion to dismiss pursuant to Rule 12(b)(6). Plaintiff Jack Kimm (“Kimm”) responds at docket 36, and County Defendants reply at docket 38. At docket 39, Kimm filed a motion to amend the complaint, with the proposed amendment filed at docket 39-1. County Defendants oppose the request at docket 40. Kimm filed a reply at docket 45. The parties did not request oral argument on the motions, and the court finds that argument would not be of additional assistance.


Kimm is a California resident. In this lawsuit he sued five individuals who reside in Arizona and La Paz County, Arizona. Kimm operates a hay brokerage business. His business advances funds to hay farmers in exchange for an interest in the crop to be produced. Once harvested, the hay is sold and the proceeds divided between Kimm and the hay farmers. According to the complaint, on November 4, 1997, Kimm first contracted with defendant Rayburn Evans to finance Evans’s hay crop to be grown in La Paz County. Kimm alleges that his arrangement with Evans continued without incident until late summer of 2002 when Kimm learned that Evans was selling hay grown with Kimm’s financial assistance to others. Kimm alleges that when he and Evans ceased to do business, Evans owed Kimm $385, 589.80. Kimm sued Evans in La Paz County Superior Court.[1] Evans hired lawyer Steven Suskin, a former La Paz County Attorney, to defend him in Kimm’s civil suit. According to Kimm’s complaint Evans is a former La Paz County Sheriff.[2] Both Kimm and Evans gave deposition testimony in Kimm’s civil suit against Evans.[3]

Kimm’s complaint alleges that after Kimm filed the civil lawsuit former sheriff Evans contacted the La Paz County Sheriff’s office on April 17, 2003, and claimed that Kimm had engaged in fraud and forgery. In particular, Kimm alleges that Evans claimed that the hay brokerage contracts for 1998, 1999, 2000, and 2001 were forged by Kimm.[4] Detective Bagby of the Sheriff’s office contacted Kimm who told the detective that the contracts were signed by Evans and that Evans owed Kimm money. Bagby discussed the matter with La Paz County Attorney Buckalew. Buckalew declined to prosecute Kimm.[5]

Thereafter, Evans and his attorney Suskin continued to pursue the matter with the subsequent La Paz County Attorney, Defendant Martin Brannan. Kimm alleges that Brannan did not conduct an investigation regarding the matter, but nonetheless filed a criminal indictment against him based solely on Kimm’s deposition testimony in the civil trial. Kimm alleges that Brannan “elicited false testimony regarding the opinion of a handwriting expert”[6] and withheld exculpatory information, such as evidence of Kimm’s prepayments to Evans for five growing seasons. Kimm’s attorney filed a motion to disqualify the La Paz County Attorney’s Office because of Evans’s professional connections to the office. Brannan conceded that disqualification was appropriate, and the case was consequently dismissed without prejudice in June of 2008.

Kimm alleges that he subsequently tried to get the La Paz County Attorney’s Office to press charges against Evans for false testimony and theft, but that Brannan would not conduct an investigation and did not bring charges against Evans.

In February of 2009, the new La Paz County Attorney, Defendant Samuel Verderman, and the La Paz County Chief Deputy Attorney, Defendant Thomas Jones, resumed criminal proceedings against Kimm in regard to the matter with Evans. Kimm alleges they “presented false information” and “failed to present exculpatory evidence” to the grand jury.[7] He alleges that the only witness presented to the grand jury was investigator Frank Haws. The grand jury issued an indictment. Kimm again moved for disqualification of the La Paz County Attorney’s Office, and his request was granted. Prosecution of the case was transferred to the Colorado River Indian Tribe. The case was eventually dismissed with prejudice on September 20, 2013, based in part on the prosecution’s failure to present the case to the grand jury in a fair and impartial manner.

Kimm then filed this federal lawsuit. The basis of his complaint is that the various county employees wrongfully prosecuted him. Count One of the complaint asserts violations of Kimm’s constitutional rights pursuant to 42 U.S.C. §§ 1981 and 1983 against all defendants. Specifically, Kimm alleges he was “deprived of privileges and immunities guaranteed to all citizens when he was subjected to law enforcement retaliatory conduct, malicious and selective prosecution and was criminally charged without probable cause.”[8] He then asserts that he “was deprived of equal protection and due process in an attempt to chill his free speech . . . and exact revenge for filing the civil lawsuit against Rayburn Evans.”[9] He also asserts that he “was investigated, prosecuted, harassed and subjected to improper abuse of power, without probable cause, and with malice.”[10]

Count Two is directed at La Paz County, Martin Brannan, and Samuel Verderman. In the text of Count Two, Kimm makes specific allegations directed solely at those three defendants based on their “unconstitutional policies, customs, and failure to train.” Specifically, it alleges that they “foster[ed] and encourag[ed] the practice of presenting false evidence to the grand jury, ignor[ed] exculpatory evidence and condon[ed] investigatory practices that violate the rights of those subjected to these investigations.”[11]

Count Three is a 42 U.S.C. § 1983 claim based on due process under “the United States and Arizona State Constitutions” for the defendants’ “malicious prosecution without probable cause.”[12] Count Four is labeled as a § 1983 claim based on equal protection, but the text indicates generally that it is also based on the First, Fourth, Fifth, and Fourteenth Amendment.[13] Again, the allegation is that the defendants subjected him to unconstitutional malicious prosecution. Count Five is another § 1983 claim based on conspiracy.

Count Six alleges that all defendants engaged in a pattern of unlawful activity constituting a violation of both federal and state law. Specifically, Kimm alleges that defendants violated 18 U.S.C. § 1961 et seq. and A.R.S. § 13-2301 et seq.

Count Seven pleads a state claim for abuse of process against all defendants. Count Eight pleads a state law claim for false arrest and imprisonment against all defendants. Count Nine is a state law defamation claim against all defendants. Count Ten is a state law claim against all defendants for intentional infliction of emotional distress. Count Eleven is a negligence claim directed at defendants La Paz County, Brannan, Verderman, Jones, and Haws. Count Twelve is a Monell claim ...

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