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Jolly v. County of Mohave

United States District Court, D. Arizona

August 1, 2019

Clifford Jolly, Plaintiff,
v.
County of Mohave, et al., Defendants.

          ORDER

          Honorable John J. Tuchi United States District Judge.

         At 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.

         This 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 City.[1]

         I. LEGAL STANDARDS

         A. Fed.R.Civ.P. 12

         A 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 (1974)).

         B. Fed.R.Civ.P. 15

         A party 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).

         However, 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).

         II. ANALYSIS

         In his 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.

         Under 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.)

         A. Section 1983 and Common Law Malicious Prosecution (Counts I and II)

         “A 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 ...


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