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Micolo v. County of Pinal

United States District Court, D. Arizona

June 20, 2016

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

          ORDER

          David G. Campbell United States District Judge

         Defendants Pinal County and Officer Stacy Sherwood move to dismiss Plaintiff Michael Micolo’s third amended complaint.[1] 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.

         I. Background.

         On 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.

         On 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.

         On 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.

         On 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.

         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. 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).

         Pro se 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 omitted).

         III. Analysis.

         A. Excessive Force Claim.

         A 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).

         Plaintiff was arrested for assaulting a police officer, resisting arrest, and trespassing. Doc. 62 at 3, ¶ 10. Plaintiff admits to resisting arrest.[2]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 actions ...


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