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Micolo v. County Of Pinal

United States District Court, D. Arizona

February 16, 2016

Michael Carmine Micolo, Plaintiff,
v.
County of Pinal, et al., Defendants.

ORDER

David G. Campbell United States District Judge

On December 31, 2014, Plaintiff Michael Carmine Micolo filed an amended complaint asserting that Defendants used excessive force in his May 17, 2014 arrest, in violation of the Fourth and Fourteenth Amendments. Doc. 10. On March 13, 2015, the Court dismissed all claims against the Pinal County Sherriff’s Department, and all of Plaintiff’s state law claims. Doc. 24. Defendants have filed a motion to dismiss the remaining claims. Doc. 48. The motion has been fully briefed (Docs. 49, 53) and no party has requested oral argument. For the reasons set forth below, the Court will grant the motion. Plaintiff will be granted leave to amend to assert any claims he may have based on Defendants’ conduct after the arrest.[1]

I. Background.

Plaintiff was arrested on May 17, 2014, on charges of criminal trespass, aggravated assault of a police officer, and resisting arrest. Doc. 10, ¶ 10. Plaintiff alleges that he was suffering from delirium and acute renal failure at the time of the arrest, and that the arresting officer, Sergeant Stacy Sherwood of the Pinal County Sherriff’s Department, punched, pushed, and tased him during the arrest. Id., ¶¶ 13, 18. Plaintiff alleges that he was placed in an ambulance after the arrest, where his hands were cuffed and his ankles shackled. Id., ¶ 15. Plaintiff alleges that the officers subsequently tightened his cuffs, causing him injury. Id.

On August 28, 2014, the Pinal County Attorney filed a criminal complaint charging Plaintiff with criminal trespass, aggravated assault of a police officer, and resisting arrest. Doc. 48-1 at 2.[2] On November 6, 2015, Plaintiff pleaded guilty to one count of resisting arrest. Id. at 18. On December 1, 2015, the Pinal County Superior Court sentenced Plaintiff to two days in Pinal County Jail and eighteen months of supervised probation. Id. at 23.

Plaintiff alleges that Sergeant Sherwood used excessive force during the arrest and seeks damages under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments. Doc. 10. Plaintiff also asserts a claim against Pinal County under Monell v. Department of Social Services, 436 U.S. 658 (1978), alleging that Sherwood’s conduct was undertaken pursuant to official policy. The Court stayed the action pending resolution of the criminal case against Plaintiff. Docs. 1, 38. The Court lifted the stay on December 16, 2015, approximately two weeks after Plaintiff’s sentencing (Doc. 47), and Defendants moved dismiss (Doc. 48).

II. Legal Standard.

A successful 12(b)(6) motion must show either that the complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a cognizable legal theory will survive a motion to dismiss as long as it contains “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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

In ruling on a Rule 12(b)(6) motion, the Court takes the plaintiff’s well-pleaded factual allegations as true and construes them in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not entitled to a presumption of truth and are not sufficient to defeat a 12(b)(6) motion. Iqbal, 556 U.S. at 678.

Pro se litigants are subject to the same pleading requirements as everyone else. Calugay v. GMAC Mortgage, No. CV-09-1947-PHX-LOA, 2009 WL 3872356, at *2 (D. Ariz. Nov. 18, 2009) (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986). But courts have an obligation “to construe [pro se] pleadings liberally and to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)). If a pro se complaint does not state a claim upon which relief can be granted, the court must grant leave to amend “unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

III. Analysis.

A. Excessive Force During Arrest.

Plaintiff’s principal claim is that Defendants violated the Fourth and Fourteenth Amendments by using excessive force against him during his arrest. Doc. 10, ¶ 18. He seeks damages for this alleged constitutional violation under 42 U.S.C. § 1983. Defendants assert that this claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).

In Heck, the Supreme Court held that an individual who has been convicted of a state-law crime cannot obtain relief under § 1983 that “would necessarily imply the invalidity of his conviction” unless the conviction has been invalidated in a separate proceeding. 512 U.S. at 487. The rationale for this rule is that federal law provides a different avenue for challenging a state-law conviction: a habeas corpus action under 28 U.S.C. § 2254. Heck prevents an individual seeking to ...


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