Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Arellano v. City of San Luis

United States District Court, D. Arizona

May 8, 2017

Javier Arellano, Plaintiff,
v.
City of San Luis, et al., Defendants.

          ORDER

          DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE

         Plaintiff Javier Arellano filed a complaint against numerous Defendants seeking monetary and equitable relief for an alleged violation of his rights under the Fourteenth Amendment to the United States Constitution. Doc. 1. Four separate motions to dismiss have been filed by various Defendants. Docs. 73, 75, 77, 80. These motions are fully briefed, and the Court concludes that oral argument is not necessary. For the reasons that follow, the Court will grant three of the four motions to dismiss.

         I. Background.

         According to Plaintiff's amended complaint, he was hired as a police officer with the City of San Luis Police Department in 1995.[1] Doc. 7, ¶ 23. He received various promotions over the years, ultimately reaching the rank of Commander. Id., ¶ 25. In 2014, City of San Luis Police Chief Arturo Ramos took a leave of absence, and Plaintiff became Acting Chief of Police. Id., ¶¶ 25, 27. Chief Ramos had a standing verbal order that any San Luis police officer who had on-duty contact with any person who was widely known, celebrated, or politically connected, should reported the contact to the Chief. Id., ¶ 26.

         On January 21, 2014, a San Luis police officer issued a traffic citation to Luz Harper, the wife of City Council Member Joe Harper. Id., ¶ 29. Within minutes, Harper contacted on-duty police lieutenant Ernesto Lugo allegedly to complain about the ticket. Lugo advised Plaintiff about the issuance of the ticket, and Plaintiff retrieved the citation and kept it in his office unprocessed for several months. Id., ¶¶ 31-32. On August 4, 2014, David Lara, a private citizen, requested a copy of the citation. Plaintiff located the ticket in his office, noted that it was over six months old and thus legally void, and dismissed it before providing the copy to Lara. Id., ¶ 37. An administrative investigation into the incident was undertaken by the City Manager, City Attorney, and City Council. Id., ¶ 38. An administrative termination hearing on December 11, 2014 resulted in a termination recommendation. Id., ¶¶ 41-42. The hearing officer for appeals of employment termination matters, Ellen Van Riper, upheld the recommendation. Id., ¶¶ 40, 42.

         II. Legal Standard.

         A successful motion to dismiss under Rule 12(b)(6) 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 Atl. 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.” Id. (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).

         III. Analysis.

         Plaintiff alleges that Defendants violated his Fourteenth Amendment Due Process rights by depriving him of a protected property interest in his continued employment without valid pre-termination and post-termination proceedings. Doc. 7, ¶¶ 21, 39.[2] The Court will address each of the four motions to dismiss in turn.

         A. Defendant David Lara's Motion.

         Defendant Lara argues that Plaintiff's claims against him should be dismissed because Plaintiff has not alleged that Lara had anything to do with Plaintiff's termination and thus has failed to state a claim upon which relief can be granted. Doc. 80. Plaintiff contends that his complaint, taken as a whole, shows that Lara was part of a conspiracy or “illegal agreement to remove the Plaintiff from his job and is therefore subject to suit.” Doc. 84.

         Plaintiff's amended complaint alleges that “[t]he City and its officials used biased and corrupt termination procedures to deprive Plaintiff of his Constitutional right to earn a living as a law enforcement officer. The rights violated are guaranteed by the Due Process and Equal Protection Clauses of the 14th Amendment to the United States Constitution and protected by 42 U.S.C. § 1983.” Doc. 7, ¶ 1. With respect to Defendant Lara specifically, Plaintiff contends only that Lara, “in coordination with Miguel Alvarez, Lt. Lugo, the city officer and Does 1-20, delivered to the police department a request for a copy of the citation specifying the citee by name, the citation number, the date of issuance and what the citation was for.” Id., ¶ 36. Plaintiff alleges that he directed a copy of the citation to be provided to Lara. Id., ¶ 37.

         Broadly, Plaintiff contends:

[E]ach of the defendants herein was, at all times relevant to this action, the agent, employee, partner, political ally or joint venture of the remaining defendants and was acting within the course and scope of that relationship at all times described in this complaint. . . . [E]ach of the defendants herein gave consent to, participated in matters wherein they had a conflict of interest, ratified, and authorized the acts alleged herein to each of the remaining defendants.

Id., ¶ 5.

         “Section 1983 is a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials.” Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015) (quotation marks and citation omitted). To state a claim under § 1983, a plaintiff must allege two distinct elements: (1) the violation of a right secured by the Constitution or laws of the United States, (2) by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Dismissal of a § 1983 claim “is proper if the complaint is devoid of factual allegations that give rise to a plausible inference of either element.” Naffe, 789 F.3d at 1036.

         A person acts under color of state law if he exercises “power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49 (quotation marks omitted). This requirement generally limits § 1983 suits to claims against public officials. To establish that a private individual, like Lara, acted under color of state law, a plaintiff must show that the individual “conspired or acted jointly with state actors to deprive the plaintiff[] of [his] constitutional rights.'” Radcliffe v. Rainbow Const. Co., 254 F.3d 772, 783 (9th Cir. 2001) (citing United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989)). This requires evidence of “an agreement or meeting of the minds to violate constitutional rights.” Id. (quoting Phelps Dodge, 865 F.2d at 1540-41). “A relationship of cause and effect between the complaint and the prosecution is not sufficient, or every citizen who complained to a prosecutor would find himself in a conspiracy.” Id.

         The Supreme Court has made clear that a “pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Discovery will not be available to a party “armed with nothing more than conclusions.” Id. at 678-79.

         Plaintiff relies on his contention that an “illegal agreement” existed between Lara and the other Defendants. Plaintiff's “assertion of an unlawful agreement [i]s a legal conclusion” not entitled to an assumption of truth. Iqbal, 556 U.S. at 680. Plaintiff provides no factual allegations that would show an agreement or meeting of the minds. See Radcliffe, 254 F.3d at 783. He argues in his motion, but did not assert in his amended complaint, that Lara delivered the copy of the citation “to whomever initiated the process that led to the ultimate dismissal of the Plaintiff.” Doc. 84 at 3. But merely furnishing information to a police officer, prosecutor, or other government official is not sufficient to establish a conspiracy and satisfy the second element of a § 1983 claim. Radcliffe, 254 F.3d at 783; Banerjee v. Cont'l Inc., Inc., No. 216CV669JCMVCF, 2016 WL 5939748, at *3 (D. Nev. Oct. 11, 2016) (quoting Lockhead v. Weinstein, 24 F. App'x 805, 806 (9th Cir. 2001)). Nor does submitting a request for public information as a private citizen constitute action under color of state law. As a result, Plaintiff has provided no facts, accepted as true, that would establish Lara acted under color of state law in causing a violation of Plaintiff's rights. Plaintiff's claims against Lara will be dismissed.

         B. Defendant Ellen Van Riper's Motion.

         Defendant Van Riper argues that she has absolute immunity from suit related to her performance of quasi-judicial functions. Doc. 77 at 2. Plaintiff contends that absolute immunity does not apply because Van Riper is a contract worker, not a full time employee of the City of San Luis; the City exercised financial control over her compensation; and Van Riper consulted with and was directed by the City's Attorney and Managers throughout the matter. Doc. 81 at 5. Van Riper bears the burden of establishing absolute immunity. Burton v. Infinity Capital Mgmt., 753 F.3d 954, 959 (9th Cir. 2014) (“The proponent of a claim for absolute immunity bears the burden of establishing that such immunity is justified.”) (quotation marks omitted).

         “It has long been established that judges are absolutely immune from liability for acts done by them in the exercise of their judicial functions[, ]” and “[t]he Supreme Court has extended such absolute immunity to other public officials who perform activities that are functionally comparable to those of judges.” Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008) (citations and quotation marks omitted). To determine whether a public official is performing “quasi-judicial functions” entitled to absolute immunity, courts consider “the nature of the responsibilities of the individual official, ” rather than his rank, title, or location within the government. Cleavinger v. Saxner, 474 U.S. 193, 201 (1985). The Supreme Court has provided several specific factors to consider when making this determination: “(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.” Id. at 202 (citing Butz v. Economou, 438 U.S. 478, 512 (1978)).

         Plaintiff's amended complaint alleges only that Van Riper “is the Hearing Officer for appeals of employment termination matters[, ]” and that she “decided to uphold the City's termination recommendation[.]” Doc. 7, ¶ 40, 42. Van Riper is additionally identified as “a Hearing Officer for the City of San Luis.” Id., ¶ 8. The Court has not been provided with any information concerning Van Riper's responsibilities as hearing officer, how she was selected and may be removed from it, what procedures she employed in the hearing regarding Plaintiff's termination, the nature of the hearing process, or any appeal mechanisms. As a result, Van Riper has not met her burden of establishing absolute immunity for purposes of this motion to dismiss.[3] Because the Court is denying Van Riper's motion on this ground, the Court will also deny her related request for attorneys' fees. Doc. 77 at 4-5.

         In the alternative, Van Riper asks the Court to dismiss Plaintiff's claim under Federal Rule of Civil Procedure 12(b)(5) for failure to effect service within the 90 days prescribed under Rule 4(m). Id. at 3-4. Rule 4(m) provides that the court “must extend the time for service” upon a showing of “good cause, ” but “even without a showing of good cause, a district court may utilize its ‘broad' discretion to extend the time for service.” United States v. 2, 164 Watches, 366 F.3d 767, 772 (9th Cir. 2004) (quoting In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001)). The Ninth Circuit has recognized that, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.