United States District Court, D. Arizona
Dominic W. Lanza United Slates District Judge
before the Court are (1) Defendants' partial motion to
dismiss under Rule 12(b)(6) (Doc. 57) and (2) the
parties' joint motion to stay discovery and disclosure
(Doc. 71). As explained below, the motion to dismiss will be
granted in part and denied in part and the motion to stay
will be denied as moot.
sprawling amended complaint in this case is 70 pages long and
contains more than 500 paragraphs. (Doc. 55.) In a nutshell,
the plaintiffs-Stacy Lynn Humphreys and James Edward Smith
III, a husband and wife, and two of Humphreys'
businesses, Jugs & Strokers, LLC and Mama Jugs, LLC
(collectively, “Plaintiffs”)-contend they have
been subjected to harassment by the City of Coolidge's
(“City”) police department due to their support
for Outlaw Motorcycle Gangs (“OMGs”). Among other
things, Plaintiffs contend that members of the City's
police department improperly monitored their Facebook and
other social media accounts, falsely told other law
enforcement officers that criminal activity was occurring at
their businesses, harassed their customers through heightened
police surveillance and patrols, and refused to comply with
requests under Arizona's public records laws.
on these allegations, the complaint asserts the following
eleven claims for relief: (1) violations of the First
Amendment; (2) violations of the Fourteenth Amendment; (3)
violations of the Criminal Intelligence Systems Operating
Policies, 28 CFR § 23.20; (4) violations of 18 U.S.C.
§ 1951 (Hobbs Act); (5) violations of 18 U.S.C. §
1961 et seq. (RICO); (6) violations of 42 U.S.C.
§ 1985 (“Conspiracy With Civil Rights”); (7)
violations of “18 U.S.C. § 1983”; (8)
violations of A.R.S. titles 39 and 42 (Arizona's public
records laws); (9) tortious interference with business
expectancy; (10) tortious interference with contract; and
(11) conspiracy to commit tortious interference.
April 16, 2018, Defendants filed a partial motion to dismiss.
(Doc. 57.) It asks the Court to dismiss Claims 1, 2, 3, 4,
and 5 in their entirety and to dismiss Claim 7 as to one
defendant (the City) and one plaintiff (Smith). On June 11,
2018, after the motion was fully briefed, the Court heard
oral argument. (Doc. 65.) However, before a decision could be
issued, this matter was reassigned to a new judge. (Doc.
December 11, 2018, the parties filed a joint motion to stay
discovery and disclosures (Doc. 71) while the motion to
dismiss was pending.
Motion to Dismiss
survive a motion to dismiss, a party must allege
‘sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.'”
In re Fitness Holdings Int'l, Inc., 714 F.3d
1141, 1144 (9th Cir. 2013) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “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. (quoting Iqbal, 556 U.S. at 678).
“[A]ll well-pleaded allegations of material fact in the
complaint are accepted as true and are construed in the light
most favorable to the non-moving party.” Id.
at 1144-45 (citation omitted). However, the court need not
accept legal conclusions couched as factual allegations.
Iqbal, 556 U.S. at 679-80. The court also may
dismiss due to “a lack of a cognizable legal
theory.” Mollett v. Netflix, Inc., 795 F.3d
1062, 1065 (9th Cir. 2015) (citation omitted).
Claims One and Two (First and Fourteenth Amendments)
Claim One of the complaint, Plaintiffs allege that Defendants
violated their free speech and free association rights under
the First Amendment. (Doc. 55 ¶¶ 316-328.) In Claim
Two, Plaintiffs allege that Defendants violated their rights
under the Equal Protection and Due Process Clauses of the
Fourteenth Amendment. (Id. ¶¶ 329-356.)
argue that Claims One and Two must be dismissed because the
First and Fourteenth Amendments don't create a private
right of action. (Doc. 57 at 5.) Defendants contend that 42
U.S.C. § 1983 is the vehicle by which to assert
violations of constitutional rights, yet Plaintiffs
haven't specifically pleaded their First and Fourteenth
Amendment claims through § 1983. (Id.) In their
response, Plaintiffs agree that § 1983 is the proper
vehicle for asserting such claims and thus request leave to
amend “[t]o the extent th[e] Court finds that
violations of Plaintiffs' Constitutional rights were
inappropriately pled.” (Doc. 61 at 7-8.)
is not warranted on this basis. To be sure, § 1983 is
the proper vehicle to assert First and Fourteenth
Amendment-based constitutional claims. Vinson v.
Thomas, 288 F.3d 1145, 1155 (9th Cir. 2002)
(“Section 1983 . . . allows individuals to enforce
rights contained in the United States Constitution . . .
.”). However, to survive dismissal, Plaintiffs
weren't required to specifically invoke § 1983 in
the paragraphs of the complaint discussing Claims One and
Two. In Johnson v. City of Shelby, 135 S.Ct. 346
(2014), the Supreme Court encountered a similar issue. There,
the district court rejected a civil rights lawsuit, which
alleged that certain public officials in Mississippi had
engaged in Fourteenth Amendment violations, due to the
plaintiffs' “failure to invoke 42 U.S.C. §
1983 in their complaint.” Id. at 346. The
Supreme Court summarily reversed, emphasizing that the
“[f]ederal pleading rules call for ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief'; they do not countenance dismissal of
a complaint for imperfect statement of the legal theory
supporting the claim asserted.” Id. (citation
omitted). The Court added that a plaintiff need only
“plead facts sufficient to show that her claim has
substantive plausibility” and is “required to do
no more to stave off threshold dismissal for want of an
adequate statement of [her] claim.” Id. at
347. See ...