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
U.S. Constitution. Doc. 1. The Court granted motions to
dismiss the first amended complaint against all but one
Defendant. Doc. 89. Although the Court's reasoning varied
for each Defendant, one finding was recurrent: Plaintiff
failed to allege sufficient facts to state a plausible claim.
Court granted leave to amend, and Plaintiff filed a second
amended complaint. Doc. 92. Defendants again seek dismissal
under Rule 12(b)(6). Docs. 94, 95. The motions are fully
briefed, and no party requests oral argument. For the reasons
that follow, the Court will grant the motions in part.
purposes of this motion, Plaintiff's factual allegations
are accepted as true. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Plaintiff was hired as a police officer for
the City of San Luis Police Department in 1995. Doc. 92
¶ 15. He received various promotions and ultimately
reached the rank of Commander. Id. ¶ 17. In
2014, San Luis Police Chief Arturo Ramos took a leave of
absence, and Plaintiff became the Acting Chief of Police.
Id. ¶¶ 17-20. Chief Ramos had a standing
order that any San Luis police officer who had on-duty
contact with any person who was widely known, celebrated, or
politically connected, should report the contact to the
Chief. Id. ¶ 18.
January 21, 2014, a San Luis police officer issued a traffic
citation to Luz Harper, the wife of City Council Member Joe
Harper. Id. ¶ 21. Within minutes, Councilman
Harper contacted on-duty police lieutenant Ernesto Lugo,
allegedly to complain about the ticket. Id. ¶
22. Lugo advised Plaintiff of the ticket, and Plaintiff
retrieved the citation and kept it in his office unprocessed
for several months. Id. ¶¶ 23-24. On
August 4, 2014, David Lara, a private citizen, requested a
copy of the citation, identifying the offender's name,
ticket number, offense, and date. Id. ¶ 28.
Plaintiff found the ticket in his office, noted that it was
over six months old and thus legally void, and dismissed it
before providing a copy to Lara. Id. ¶ 29. The
City Manager and City Council commenced an administrative
investigation into the incident. Id. ¶ 30. The
hearing officer for employment termination appeals, Ellen Van
Riper, held an administrative hearing on December 11, 2014,
and issued a termination recommendation. Id.
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. 1988). 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.'” Iqbal, 556 U.S.
at 678 (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 employment without sufficient pre-termination
and post-termination proceedings. Doc. 92 ¶¶ 38,
42-45. Plaintiff appears to allege that other statutory and
state constitutional rights were violated, but does not state
any cause of action based on these rights. Id.
¶¶ 55, 58-60.
Defendant Lara's Motion.
Lara argues that the complaint must be dismissed because it
lacks specific facts showing that he conspired with state
actors to deprive Plaintiff of a protected right. Doc. 94.
Defendant equates his conduct with that of a complainant who
triggers a prosecution, and argues that such an action does
not automatically trigger conspiracy liability. Doc. 102 at
alleges Lara's participation in at least four overlapping
conspiracies. See Doc. 92 ¶¶ 9-12. Lara
allegedly teamed with Defendants Sanchez, Alvarez, Harper, De
La Hoya, and Velez to terminate Plaintiff's employment.
Id. Overt acts allegedly committed in furtherance of
these conspiracies include: (1) requesting a record of the
traffic ticket, (2) publicly disseminating the ticket
information, (3) removing the ticket from Plaintiff's
office, (4) replacing the ticket in Plaintiff's office,
(5) limiting the scope of the subsequent investigation, (6)
arranging a bogus termination hearing, and (7) withholding
exculpatory evidence from Plaintiff. Id.
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 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.
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)). “A mere allegation of conspiracy
without factual specificity is insufficient.”
Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621,
626 (9th Cir. 1988). Plaintiff must plead evidence of
“an agreement or meeting of the minds to violate
constitutional rights.” Radcliffe, 254 F.3d at
783 (quoting Phelps Dodge, 865 F.2d at 1540-41).
second amended complaint cures the deficiencies in the prior
pleading. It describes the members, objects, and overt acts
of four alleged conspiracies to terminate Plaintiff's
employment. What is more, Plaintiff alleges that Lara's
role in those conspiracies included an overt act: his request
for a record of the traffic ticket. Doc. 92 ¶¶ 9,
11-12, 28. The fact that the record request was lawful does
not prevent a finding that it was part of an illegal
conspiracy to terminate Plaintiff. Plaintiff provides more
than a mere allegation of the existence of a conspiracy.
reliance on Radcliffe and Phelps Dodge is
misplaced. In those cases, the Ninth Circuit considered the
sufficiency of evidence for the purposes of summary judgment.
Radcliffe, 254 F.3d at 777; Phelps Dodge,
865 F.2d at 1539. Plaintiff need not meet the summary
judgment standard to defeat a Rule 12(b)(6) motion. What is
more, the Radcliffe defendants are distinguishable
from Lara. The Ninth Circuit found no evidence of a
conspiracy from the mere fact of a citizen's complaint to
a local prosecutor. Radcliffe, 254 F.3d at 783-84.
Plaintiff pleads more than the ...