United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge.
before the Court is Defendant United States of America's
Motion to Dismiss. (Doc. 28). For the reasons below, the
Court grants the motion.
2002, a joint investigation between Mesa police and the FBI
led to the arrest of plaintiff Carl West. An FBI Agent, Joe
Gordwin, had obtained wiretaps involving conversations
between Mr. West and his criminal co-defendants about
burglarizing a warehouse in downtown Phoenix, Arizona. In
2003, a jury in Arizona Superior Court convicted Mr. West for
conspiracy to commit armed robbery and the court sentenced
him to a twenty year prison term based on the wiretap
evidence and the testimony of his co-conspirators.
2008, Agent Gordwin pled guilty to various criminal charges
for misconduct resulting from a concealed intimate
relationship with the wife of one of Mr. West's
co-conspirators. On June 18, 2008, Mr. West heard about Agent
Gordwin's indictment, and Mr. West immediately sought
counsel to help obtain post-trial relief. At a subsequent
hearing on West's petition in December 2010, several
witnesses recanted their trial testimony and revealed that
Gordwin had coerced the testimony of some of West's
co-conspirators, including Gordwin's mistress. On
February 11, 2011, West was preliminary released on ankle
monitoring, and the criminal charges against him were
eventually dismissed on August 19, 2013.
West filed the present claim on February 11, 2013. The
lawsuit alleged fourteen counts: (1) abuse of process; (2)
malicious prosecution; (3) negligence; (4) intentional
infliction of emotional distress; (5) negligent supervision;
(6) violation of civil rights (malicious prosecution, false
arrest and/or wrongful conviction) under 12 U.S.C. §
1983; (7) false arrest; (8) deliberate fabrication of
evidence under § 1983; (9) wrongful conviction; (10)
false imprisonment; (11) negligent misrepresentation; (12)
fraud; (13) conspiracy; and (14) punitive damages. (Doc. 1 at
12-24). The United States filed a motion to dismiss,
requesting the Court to dismiss all counts on the basis of
either a lack of subject matter jurisdiction or failure to
exhaust administrative remedies. (Doc. 10).
Court dismissed counts One, Two, and Three without prejudice
by stipulation. (Doc. 15). The Court dismissed counts Five,
Eleven, Twelve, and Thirteen without prejudice because the
claims had not yet accrued. (Doc. 15). The Court dismissed
counts Six and Eight with prejudice because a Section 1983
suit may not be brought against the United States. (Doc. 15).
The Court dismissed count Nine with prejudice because
“wrongful conviction” is not a recognized claim
under Arizona law. (Doc. 15). The Court dismissed Counts
Four, Seven, and Ten because the Federal Tort Claims Act
(“FTCA”) requires claimants to exhaust
administrative remedies and to seek administrative relief
within two years after the claim accrues. (Doc. 15). The
Court dismissed these claims with prejudice because, even if
West subsequently attempted to request administrative
remedies, such claims would be barred by the two year statute
of limitations. (Doc. 15).
West appealed the decision to dismiss certain counts with
prejudice. During the appeal, the United States Supreme Court
confirmed that plaintiffs may seek equitable tolling of
claims against the United States under the FTCA. United
States v. Wong, 135 S.Ct. 1625, 1638 (2015). The Ninth
Circuit “reverse[d] the dismissal with prejudice of
Counts 4, 7, 9 and 10 so that West may refile and seek
equitable tolling of those claims.” West v. United
States, No. 13-16909, Ninth Cir., Doc. 49.
West filed a second amended complaint on July 23, 2018. The
complaint charged three counts against the United States: a
state claim for false arrest (Count Two), a state claim for
wrongful conviction (Count Three), and a state claim for
false or wrongful imprisonment (Count Four). The United
States subsequently filed this motion to dismiss, claiming
that Mr. West's complaint is untimely and fails to state
a claim upon which relief can be granted. (Doc. 28).
United States requests the Court to dismiss all claims for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To 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). Plausibility requires
“more than a sheer possibility that a defendant has
acted unlawfully.” Twombly, 550 U.S. at 555.
When 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).
FTCA operates as a limited waiver of sovereign immunity,
“making the Federal Government liable to the same
extent as a private party for certain torts of federal
employees acting within the scope of their employment.”
U.S. v. Orleans, 425 U.S. 807, 813 (1976). “A
tort claim against the United States shall be forever barred
unless it is presented in writing to the ...