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Strobel v. Pinal County Sheriff's Office

United States District Court, D. Arizona

March 8, 2018

Scott Strobel, et al., Plaintiffs,
Pinal County Sheriff's Office, et al., Defendants.


          Eileen S. Willett United States Magistrate Judge.

         Defendants' 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.

         I. BACKGROUND

         On May 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).

         On May 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.


         A 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).

         To 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. 1989).

         If the 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”).

         III. FACTS

         Assuming 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).

         The 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.

         Plaintiff 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 the case.

         From 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.

         Defendant Babeu perceived Plaintiff Scott Strobel to be a “political enemy.” (Doc. 1-1 at 5).

         Defendant 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.

         In 2015 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.)

         The 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, 2016.

         Defendant Babeu publicized Plaintiff's termination. Defendants Babeu and Voyles publicized the criminal investigation of Plaintiff.

         As a direct and proximate result of Defendants' actions, Plaintiffs sustained emotional, physical, and economic damages.


         Defendants 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 identified herein.

         A. Count I: Malicious Prosecution

         To set 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 ...

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