United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge.
issue are Defendants City of Kingman, City of Kingman Police
Department, Mosby, and Gilbert's Motion to Dismiss (Doc.
10), to which Plaintiff Clifford Jolly filed a Response (Doc.
16); and Plaintiff's Motion for Leave to File and Serve
Amended Complaint Re Defendant City of Kingman (Doc. 18), to
which Defendant City of Kingman filed a Response (Doc. 23)
and Plaintiff filed a Reply (Doc. 30). The Court finds these
matters appropriate for resolution without oral argument.
LRCiv 7.2(f). For the reasons that follow, the Court will
grant in part and deny in part Defendants' Motion and
grant Plaintiff's Motion.
case centers on criminal charges brought by Mohave County
against Plaintiff, which a state court judge later dismissed.
Plaintiff was a court-appointed representative of his
mother's estate. Mr. William Kellogg is the estranged
husband of Plaintiff's mother, and Defendant Danial
Oehler is his attorney. Plaintiff alleges Mr. Oehler
intentionally gave misleading information to City of Kingman
police detectives about assets Plaintiff arranged to place in
storage units on behalf of his mother and Mr. Kellogg, which
information led to a criminal investigation of Plaintiff.
According to the proposed First Amended Complaint (Doc. 18-1,
Proposed First Am. Compl. (“PFAC”)), the police
detectives worked in concert with the county prosecutor to
obtain felony charges against Plaintiff using false and
misleading information, and the City's “actions
were undertaken for the purpose of depriving [Plaintiff] of
his liberty without probable cause, by obtaining criminal
felony convictions and the resulting incarceration of
[Plaintiff], in violation of his Fourth Amendment
rights.” (PFAC ¶ 38.) Plaintiff also alleges that
the City “had implemented official policies or
established customs that inflicted a Constitutional injury on
[Plaintiff].” (PFAC ¶ 44.) Plaintiff maintains
that he can state claims against the City for malicious
prosecution and abuse of process under 42 U.S.C. § 1983
(Count I) as well as Arizona common law malicious prosecution
(Count II) and abuse of process (Count III), and the Court
now evaluates Plaintiff's proposed claims against the
complaint must include “only ‘a short and plain
statement of the claim showing that the pleader is entitled
to relief,' in order to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests.'” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)); see also Fed. R. Civ. P.
8(a). A dismissal under Rule12(b)(6) for failure to state a
claim can be based on either (1) the lack of a cognizable
legal theory or (2) insufficient facts to support a
cognizable legal claim. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
“While a complaint attacked by a Rule 12(b)(6) motion
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (citations omitted). The complaint must thus
contain “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570).
“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that ‘recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
may amend a pleading once as a matter of course within 21
days after serving it, or within 21 days of service of, among
others, a Rule 12(b)(6) motion. Fed.R.Civ.P. 15(a). In all
other circumstances, absent the opposing party's written
consent, a party must seek leave to amend from the court.
Fed.R.Civ.P. 15(a)(2). Although the decision whether to grant
or deny a motion to amend is within the trial court's
discretion, “Rule 15(a) declares that leave to amend
shall be freely given when justice so requires.”
Foman v. Davis, 371 U.S. 178, 182 (1962) (citation
and internal quotation marks omitted). “In exercising
its discretion with regard to the amendment of pleadings, a
court must be guided by the underlying purpose of Rule 15-to
facilitate a decision on the merits rather than on the
pleadings or technicalities.” Eldridge v.
Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (citation and
internal quotation marks omitted).
the policy in favor of allowing amendments is subject to
limitations. After a defendant files a responsive pleading,
leave to amend is not appropriate if the “amendment
would cause prejudice to the opposing party, is sought in bad
faith, is futile, or creates undue delay.” Madeja
v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002)
(citation and internal quotation marks omitted). “A
district court does not err in denying leave to amend . . .
where the amended complaint would be subject to
dismissal.” Saul v. United States, 928 F.2d
829, 843 (9th Cir. 1991). Such futility can, by itself,
justify denial of a motion for leave to amend. Nunes v.
Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003).
Response (Doc. 16) to Defendants' Motion to Dismiss,
Plaintiff conceded that he is unable to state any claims
against Defendants City of Kingman Police Department, Mosby,
or Gilbert, and also agreed to drop Counts Two, Five and
Seven of the Complaint. (Doc. 16 at 1-2.) Plaintiff
maintained, however, that he could state claims against the
City for malicious prosecution and abuse of process under 42
U.S.C. § 1983 (Count I) as well as Arizona common law
malicious prosecution (Count II) and abuse of process (Count
III), and Plaintiff filed a Motion to Amend (Doc.18) to
request leave to add allegations supporting those claims. The
Court now evaluates Plaintiff's claims against the City
in the proposed First Amended Complaint.
Rule 15, the City does not argue that Plaintiff's
proposed First Amended Complaint will prejudice it, is sought
in bad faith, or will create undue delay. (See Doc.
23.) Instead, the City contends that Plaintiff's proposed
amendment is futile because Plaintiff fails to allege enough
facts to state any claim. (Doc. 23 at 1-11.)
Section 1983 and Common Law Malicious Prosecution (Counts I
plaintiff may bring an action under 42 U.S.C. § 1983 to
redress violations of his ‘rights, privileges, or
immunities secured by the Constitution and [federal]
laws' by a person or entity, including a municipality,
acting under color of state law.” Awabdy v. City of
Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (citing
Monell v. Dep't of Social Servs., 468 U.S. 658,
690-95 (1978)). To prevail on a § 1983 malicious
prosecution claim, a plaintiff must prove the state law
elements of the claim, see Usher v. City of L.A.,
828 F.2d 556, 562 (9th Cir. 1987), which under Arizona law
include: “(1) the institution of a proceeding, (2)
actuated by malice, (3) without probable cause by the
defendant in this action, (4) which terminated in
plaintiff's favor, (5) and caused him damages.”
Carroll v. Kalar, 545 P.2d 411, 412 (Ariz. 1976).
“Whether the facts in a particular case are ...