United States District Court, D. Arizona
G. CAMPBELL, UNITED STATES DISTRICT JUDGE
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.
to Plaintiff's amended complaint, he was hired as a
police officer with the City of San Luis Police Department in
1995. 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.
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.
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).
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. The Court will address each of the four
motions to dismiss in turn.
Defendant David Lara's Motion.
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.
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.,
[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.
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
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.
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.
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.
Defendant Ellen Van Riper's Motion.
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).
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
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. 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.
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, ...