United States District Court, D. Arizona
S. Willett United States Magistrate Judge.
fully briefed Motion to Dismiss (Doc. 14) is deemed submitted
and pending before the Court. All appearing parties have
filed consents to the exercise of jurisdiction by a U.S.
Magistrate Judge (Docs. 6, 8, 12, 13). The United States
District Court has jurisdiction over this action pursuant to
28 U.S.C.§ 1331.
10, 2017, Plaintiffs filed a First Amended Complaint (Doc.
1-1) in Pinal County Superior Court of the State of Arizona
seeking monetary damages as well as declaratory and
injunctive relief for the following causes of action arising
from the criminal prosecution of Plaintiff Scott Strobel
while he was employed as a Pinal County Deputy Sheriff and
his subsequent termination of employment: “Count I-(42
U.S.C.§ 1983, malicious prosecution, against Defendants
Babeu, Wilson, and Voyles); Count II- (42 U.S.C.§ 1983,
failure to investigate, against Defendants Babeu, Wilson, and
Voyles); Count III-(42 U.S.C.§ 1983, retaliatory
prosecution, against Defendants Babeu and Voyles); Count
IV-42 U.S.C.§ 1983 (Monell liability) against Defendant
Pinal County; Count V-42 U.S.C.§ 1985 (conspiracy to
violate civil rights) against Defendants Babeu and Voyles;
Count VI-State Law Abuse of Process against Defendants Babeu,
Wilson, and Voyles; Count VII-State Law Malicious Prosecution
against Defendants Babeu, Wilson, and Voyles; Count
VIII-State Law Defamation against Defendants Babeu and
Gaffney; Count IX-State Law False Light/Invasion of Privacy
against Defendants Babeu and Gaffney; Count X-State Law
Intentional Infliction of Emotional Distress against Babeu,
Wilson, and Voyles; Count XI-State Law Negligent Infliction
of Emotional Distress against Defendants Babeu, Wilson, and
Gaffney; Count XII-State Law Negligence against Defendants
Babeu, Wilson, and Voyles; Count XIII-State Law Negligence
Per Se against Defendants Babeu, Wilson, and Voyles; Count
XIV-State Law Aiding and Abetting Tortious Conduct against
Defendants Babeu, Wilson, and Voyles; Count XV-(Constructive
Discharge against Defendants Babeu and Pinal County.”
(Id.) Plaintiffs allege that all Defendants were
acting under color of state law at all times relevant to the
case. Plaintiffs sue Defendants Babeu, Wilson, and Gaffney in
both their official and individual capacities. Plaintiffs sue
Defendant Voyles for “administrative decisions, not
prosecutorial ones” made in his individual capacity.
(Doc. 1-1 at 4).
23, 2017 Defendants Pinal County Board of Supervisors and
Pinal County filed a Notice of Removal pursuant to 28
U.S.C.§§ 1331, 1441, 1446 and LRCiv 3.6 (Doc. 1).
On July 21, 2017, Defendants Pinal County, the Pinal County
Board of Supervisors, Voyles, Babeu, Wilson, and Gaffney
answered Plaintiffs' First Amended Complaint (Doc. 15)
and filed the pending Motion to Dismiss (Doc. 14) to which
Plaintiffs responded (Doc. 21) and Defendants replied (Doc.
22). On July 24, 2017, Defendants filed a Notice of Service
of Non-Party at Fault (Doc. 16). The Court considers
Defendants' Motion to Dismiss to be a motion filed
pursuant to Fed.R.Civ.P. 12(b)(6) and recognizes that the
Court's MIDP Order requires the filing of an answer. All
issues are joined. No further briefing is pending or
necessitated by the Federal Rules of Civil Procedure.
complaint may be dismissed as a matter of law for failure to
state a claim for two reasons: (1) lack of a cognizable legal
theory or (2) insufficient facts under a cognizable legal
theory. See Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1990). The court may dismiss all
or part of a complaint sua sponte if the plaintiffs'
claims lack an arguable basis in either fact or law. See
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989);
see also 28 U.S.C. § 1915(e)(2). This includes
claims based on legal conclusions that are untenable (e.g.,
claims against defendants who are immune from suit or claims
of infringement of legal interest which clearly does not
exist). Id.; see also McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991).
survive a Rule 12(b) (6) motion to dismiss, plaintiffs must
allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). In determining whether
the complaint states a claim on which relief may be granted,
its allegations of material fact must be taken as true and
construed in the light most favorable to Plaintiffs. See
Love v. United States, 915 F.2d 1242, 1245 (9th Cir.
Court finds that a complaint should be dismissed for failure
to state a claim, the Court has discretion to dismiss with or
without leave to amend. Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000). If, after careful consideration,
it is clear that a complaint cannot be cured by amendment,
the Court may dismiss without leave to amend. See Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995);
Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039
(9th Cir. 2002) (holding that “[b]ecause any amendment
would be futile, there was no need to prolong the litigation
by permitting further amendment”).
as true all well-pled factual allegations contained in
Plaintiffs' First Amended Complaint and drawing all
reasonable inferences therefrom, Plaintiffs allege the
following facts in support of their First Amended Complaint.
For purposes of this Fed.R.Civ.P. 12(b)(6) Motion to Dismiss
(Doc. 14), the Court disregards any of the Defendants'
factual contentions to the contrary. See, e.g., Lee v.
City of L.A., 250 F.3d 668, 688 (9th Cir. 2001)
(“[F]actual challenges to a plaintiff's complaint
have no bearing on the legal sufficiency of the allegations
under Rule 12(b)(6).”). However, the Court may still
consider any internal discrepancies or factual conflicts it
finds within the First Amended Complaint that undermine its
plausibility. See, e.g., Maloney v. Scottsdale Ins.
Co., 256 Fed.Appx. 29, 31- 32 (9th Cir. 2007) (finding
that a complaint failed to state a claim upon which relief
could be granted based upon factually inconsistent
allegations in a complaint that were not pleaded in the
alternative, but incorporated into each cause of action).
Court does take judicial notice of documents of undisputed
authenticity referenced in Plaintiffs' First Amended
Complaint. “[D]ocuments whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss.” Branch v. Tunnell, 14 F.3d 449, 454
(9th Cir. 1994), overruled on other grounds by Galbraith
v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
However, the Court does not consider information presented
outside of the pleading and does not convert this Motion to
Dismiss into a motion for summary judgment. In the Ninth
Circuit, “a motion to dismiss is not automatically
converted into a motion for summary judgment whenever matters
outside the pleading happen to be filed with the court and
not expressly rejected by the court.” North Star
Int'l v. Arizona Corporation Comm'n, 720 F.2d
578, 582 (9th Cir. 1983) (holding that district court
properly treated motion as motion to dismiss, despite
presence of affidavits, where there was no indication of the
court's reliance on outside materials and the court
expressly stated that it was dismissing for failure to state
a claim upon which relief could be granted); Keams v.
Temple Technical Institute, Inc., 110 F.3d 44, 46 (9th
Cir. 1997) (“12(b)(6) motion need not be converted into
a motion for summary judgment when matters outside the
pleading are introduced, provided that ‘nothing in the
record suggest[s] reliance' on those extraneous
materials”). Rather, “a district court must take
some affirmative action to effectuate conversion.”
Swedberg v. Marotzke, 339 F.3d 1139, 1142 (9th Cir.
2003). No such action is taken in this case.
Scott Strobel worked as a Pinal County Deputy Sheriff while
Defendant Babeu was the Pinal County Sheriff and Defendant
Voyles was the Pinal County Attorney. Plaintiff Susan Strobel
is Plaintiff Scott Strobel's wife. Plaintiffs' Larry
and Logan Strobel are Plaintiffs Scott and Susan
Strobel's adopted children. Plaintiff Ryan Strobel is
their adult biological son. Defendants were aware of
Plaintiff Scott Strobel's family at all times relevant to
2008 through the 2012 Pinal County Sheriff's election,
Plaintiff Scott Strobel publically supported Defendant
Babeu's political opponent through a letter to the editor
of the local paper, regional news articles, and
Plaintiff's work as the President of the Pinal County
Deputies' Association (“PCDA”), which
Plaintiff sought to unionize. In 2012 Defendants Voyles and
Babeu ran for re-election on a “law and order”
ticket under pressure from the Pinal County Board of
Supervisors to “keep costs down.” Defendants'
cost containment objective was contrary to the efforts of the
PCDA under Plaintiff's leadership to (i) maintain
existing policies regarding the department's weapon
arsenal and uniform allowance and (ii) recruit deputies as
union members. Under Plaintiff's leadership, the PCDA
voted to support Defendant Babeu's opponent, a decision
that Plaintiff refused to override despite Defendant
Babeu's request that Plaintiff do so.
Babeu perceived Plaintiff Scott Strobel to be a
“political enemy.” (Doc. 1-1 at 5).
Babeu disciplined Plaintiff without cause in 2009, removing
him as trainer of the K-9 unit and assigning him a desk
position. In 2014 Defendant Babeu directed subordinates to
suspend Plaintiff for eight hours without cause for a
complaint received from a third party for which Plaintiff had
been cleared of any wrong-doing.
a third party accused Plaintiff of having had a sexual
relationship with a male minor child. Defendant Babeu
initiated, directed, instructed, and guided a criminal
investigation and internal investigation of Plaintiff through
the Pinal County Sheriff's Office. Defendant Babeu
inserted himself in the charging decision process of the
Pinal County Attorney's Office and conspired with
Defendant Voyles to bring charges against Plaintiff without
probable cause. Defendant Wilson was the detective assigned
to the criminal investigation. Despite the existence of
exculpatory evidence that Defendant Wilson found during his
investigation, this exculpatory information was not presented
to the grand jury. Instead, false and misleading information
was presented to the grand jury. Plaintiff was arrested and
charged with Luring a Minor for Sexual Exploitation and
multiple counts of Sexual Conduct with a Minor. Plaintiff
thereafter filed a motion for remand to the grand jury.
“The Pinal County Attorney's Office nullified their
own proceeding and took the case to a second Grand
Jury” which issued a “NO TRUE BILL”
finding. (Doc. 1-1 at 8). The criminal case was thereafter
dismissed on June 20, 2016 and “terminated in
[Plaintiff's] favor.” (Id.)
Pinal County Sheriff's Office finished its internal
affairs investigation of Plaintiff on March 24, 2016, and the
investigation was “signed off on” by a supervisor
on March 31, 2016. (Id.) However, Plaintiff was
given a notice of termination of employment on March 23,
Babeu publicized Plaintiff's termination. Defendants
Babeu and Voyles publicized the criminal investigation of
direct and proximate result of Defendants' actions,
Plaintiffs sustained emotional, physical, and economic
move to dismiss Plaintiffs' First Amended Complaint on
the following four bases: (i) failure to adequately plead
Monell liability under 42 U.S.C.§ 1983 as to Pinal
County, the Pinal County Board of Supervisors, and all
persons sued in their official capacities; (ii) absolute or
qualified immunity bars all federal claims against persons
sued in their individual capacities; (iii) Pinal County and
the Pinal County Board of Supervisors are not proper parties
for any state law claim; and (iv) failure to serve a timely
notice of claim and the application of immunity bar all state
law claims against individually named Defendants. Defendants
do not indicate in their briefing to which Counts their
various arguments specifically are directed. For the
following reasons, the Motion to Dismiss will be granted in
part and denied in part. The Court will grant Plaintiffs
leave to file a Second Amended Complaint to correct the
deficiencies in the First Amended Complaint that are
Count I: Malicious Prosecution
forth a claim for malicious prosecution, Plaintiffs must
allege that (i) Defendants initiated or took active part in
the prosecution of a criminal action against Plaintiff Scott
Strobel; (ii) the criminal action terminated in Plaintiff
Scott Strobel's favor; (iii) Defendant acted without
probable cause; (iv) Defendant acted with malice or “a
primary purpose other than bringing him to justice”;
and (v) the malicious conduct resulted in injury to Plaintiff
Scott Strobel. Donahoe v. Arpaio,986 F.2d 1091,
1103 (D. Ariz. 2013). Defendant Voyles claims entitlement to
absolute or qualified immunity. Defendants Babeu and Wilson
claim entitlement to ...