United States District Court, D. Arizona
William A. Graven, Plaintiff,
State of Arizona, et al., Defendants.
HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE
before the Court is Defendants State of Arizona, et al.'s
motion to dismiss. (Doc. 14.) For the following reasons, the
Court grants the motion.
claims that he suffered a “catastrophic business
failure” after a “pervasive internal criminal
enterprise [was] formed and operated [between] several of
[Plaintiff's] executives, ” and attorneys from the
law firm of Snell & Wilmer. (Compl. ¶¶ 36, 44,
47, 50-52, Ex. 6.) After the Special Investigations Section
of the Attorney General's Office reviewed Plaintiff's
allegations, a formal case was opened on June 16, 2012.
(Id. ¶¶ 38- 39.) To date, nine of
Plaintiff's former employees “have been indicted or
negotiated pre- indictment plea agreements, in five criminal
cases for 60 felony counts.” (Id. ¶ 43.)
The Attorney General, however, brought no criminal charges
against Snell & Wilmer. (Id. ¶¶
56-58.) On December 14, 2015, Plaintiff met with Assistant
Attorney General Michael Bailey and Chief of the Criminal
Division Don Conrad who explained that “Snell &
Wilmer[‘s conduct] . . . did not rise to the level of
being criminal.” (Id. ¶¶ 79- 80.)
Plaintiff's Complaint alleges that the Defendants'
refusal to seek criminal indictments against third persons
constitutes a violation of his rights under the Fifth and
Fourteenth Amendments to the United States Constitution, and
also constitute the state law torts of selective prosecution,
selective enforcement, prosecutorial misconduct, conspiracy
to commit prosecutorial misconduct, and abuse of
prosecutorial discretion. (Id. ¶¶
lack of subject matter jurisdiction may be raised at any time
by the parties or the Court. See Fed. R. Civ. P.
12(h)(3); Augustine v. United States, 704 F.2d 1074,
1077 (9th Cir. 1983).
survive dismissal for failure to state a claim pursuant to
Rule 12(b)(6), a complaint must contain more than
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action;” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While
“a complaint need not contain detailed factual
allegations . . . it must plead ‘enough facts to state
a claim to relief that is plausible on its face.'”
Clemens v. DaimlerChrysler Corp., 534 F.3d 1017,
1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at
570). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
analyzing a complaint for failure to state a claim under Rule
12(b)(6), “[a]ll allegations of material fact are taken
as true and construed in the light most favorable to the
nonmoving party.” Smith v. Jackson, 84 F.3d
1213, 1217 (9th Cir. 1996). However, legal conclusions
couched as factual allegations are not given a presumption of
truthfulness, and “conclusory allegations of law and
unwarranted inferences are not sufficient to defeat a motion
to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699
(9th Cir. 1998).
Eleventh Amendment acts as a limit on federal subject matter
jurisdiction. Demery v. Kupperman, 735 F.2d 1139,
1149 n.8 (9th Cir. 1984). “The Eleventh Amendment
prohibits federal courts from hearing suits brought against
an unconsenting state.” Brooks v. Sulphur Springs
Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991).
State agencies are also immune under the Eleventh Amendment
from private actions or suits for injunctive relief in
federal court. Mitchell v. L.A. Cmty. Coll. Dist.,
861 F.2d 198, 201 (9th Cir. 1988). Additionally, the Eleventh
Amendment bars damages suits against state officials in their
official capacities. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989). Here, Plaintiff's
complaint in its entirety is barred by the Eleventh
complaint also fails to state a claim that is plausible on
its face. As an initial matter, Plaintiff's complaint is
comprised almost entirely of legal conclusions, which are
erroneous. Plaintiff does not cite to any legal authority
that suggests that he has a federal right to have third
parties criminally prosecuted by state officials. Nor does
Plaintiff cite any authority that would allow him to bring a
state law claim against state officials for their failure to
criminally prosecute third persons that he believes should be
prosecuted. In fact, it is axiomatic that “criminal
prosecutors may claim absolute immunity from damages
liability for actions ‘intimately associated with the
judicial phase of the criminal process, ' such as the
prosecutor's initiation of a prosecution and presentation
of the state's case.” Torres v. Goddard,
793 F.3d 1046, 1051 (9th Cir. 2015) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430 (1976)). “Absolute
prosecutorial immunity is meant to protect[ ] the prosecutor
from harassing litigation that would divert his time and
attention from his official duties' and to enabl[e] him
to exercise independent judgment when deciding which suits to
bring and in conducting them in court.” Id.
(internal quotation marks and citation omitted). Here,
Plaintiff's claims assert an infringement of his rights
based on the Defendants' decision not to prosecute
third-party individuals. The pertinent actions of the
Defendants being challenged here were the actions of an
advocate of the state determining whether to bring charges,
not the actions of an administrator or an investigator; thus,
Defendants' actions are entitled to absolute immunity.
Id. To the extent the Plaintiff names other
non-prosecutors as defendants in his Complaint, he sets forth
no plausible allegations suggesting that they have deprived
him of a right under federal law or state law.
Defendants' motion ...