United States District Court, D. Arizona
G. Campbell United States District Judge
Pinal County and Officer Stacy Sherwood move to dismiss
Plaintiff Michael Micolo’s third amended
complaint. Doc. 63. The issues are fully briefed
(Docs. 64, 65), and no party has requested oral argument. For
the following reasons, the Court will grant Defendants’
motion, with prejudice.
November 17, 2014, Plaintiff filed his initial complaint in
Pinal County Superior Court. Doc. 1-1 at 9-10. Defendants
removed the case to this Court. Doc. 1.
December 31, 2014, Plaintiff filed his first amended
complaint. Doc. 10. The Court dismissed all claims against
the Pinal County Sherriff’s Department and all of
Plaintiff’s state law claims. Doc. 24. The remaining
claims were stayed pending the state court criminal
proceedings against Plaintiff. Docs. 38, 40, 42, 44, 47. On
February 16, 2016, the Court dismissed Plaintiff’s
excessive force claim against Defendant Sherwood pertaining
to conduct that occurred during the arrest as barred by
Heck v. Humphrey, 512 U.S. 477, 487 (1994), but
permitted Plaintiff leave to amend his complaint to address
conduct occurring after the arrest. Doc. 56 at 3-6. The Court
also dismissed Plaintiff’s claim against Pinal County
under Monell v. Department of Social Services, 436
U.S. 658 (1978), but granted leave to amend. Doc. 56 at 6.
March 11, 2016, Plaintiff filed his second amended complaint.
Doc. 60. The Court dismissed the complaint because he failed
to allege sufficient facts to state an excessive force claim
relating to post-arrest conduct. Doc. 61 at 1. The Court
dismissed Plaintiff’s malicious prosecution claims as
barred by Heck, and again dismissed
Plaintiff’s state law claims. Id. at 2. The
Court granted leave to amend. Id.
April 13, 2016, Plaintiff filed his third amended complaint.
Doc. 62. This complaint contains an excessive force claim
pertaining to conduct that occurred after the arrest, as well
as several state law claims.
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.
1990). 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).
litigants are subject to the same pleading requirements as
everyone else. Calugay v. GMAC Mortg., 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) (quoting
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) (quotation marks and citation
Excessive Force Claim.
successful excessive force claim must show that the
officers’ use of force was objectively unreasonable in
light of the facts and circumstances confronting them.
Graham v. Connor, 490 U.S. 386, 397 (1989).
“Whether a particular use of force was
‘objectively unreasonable’ depends on several
factors, including the severity of the crime that prompted
the use of force, the threat posed by a suspect to the police
or to others, and whether the suspect was resisting
arrest.” Tatum v. City & Cty. of S.F., 441
F.3d 1090, 1095 (9th Cir. 2006).
was arrested for assaulting a police officer, resisting
arrest, and trespassing. Doc. 62 at 3, ¶ 10. Plaintiff
admits to resisting arrest.Id. at ¶ 12.
Plaintiff alleges that Defendant Sherwood handcuffed him and,
as a result of Plaintiff’s continuing to resist arrest,
placed leg restraints on Plaintiff. Id. All of these