United States District Court, D. Arizona
Murray Enow Chief United States District Judge
before the Court is Defendant City of Scottsdale, et
al.’s (“Defendants”) Motion to Dismiss
(Doc. 14). For the following reasons, the Court grants
Defendants’ motion and dismisses Plaintiff Burim
Gashi’s (“Plaintiff”) complaint with leave
facts as alleged in the complaint are as follows. Plaintiff
was romantically involved with Enisa Duric from October 2014
to September 2017. After the end of their relationship,
Plaintiff received threats from Duric that she would
“make [Plaintiff] pay for breaking up with her.”
(Doc. 1-3 at 21.) Plaintiff claims Duric worked with
Defendants to set Plaintiff up for a crime he did not commit.
January 4, 2018, Duric texted Plaintiff a picture of a gun
and said she was going to kill herself because he would not
take her back. Plaintiff promptly called 911. Later that day,
Plaintiff received a call from the Phoenix Police informing
him that Duric denied sending the text message to Plaintiff.
Duric later admitted to thinking about suicide but said she
had changed her mind. Officers apparently concluded there was
no improper conduct by Plaintiff and took no further action
on that occasion.
January 30, 2018, Duric slept at Plaintiff’s home. When
Plaintiff left for work the next day, Duric decided to stay
at the house and wait for him. Plaintiff put a camera under
the table in the living room before he left. On his way to
work, Plaintiff believes he saw Defendant Miller’s car
parked near Plaintiff’s house. Later that day,
Plaintiff tried to contact Duric but was unable to reach her.
Plaintiff later viewed the camera footage from his house and
heard a male voice after he left the house. The voice asked
Duric who was home. Duric later deleted the video but told
Plaintiff the voice was Defendant Miller.
February 18, 2018, the Scottsdale Police contacted Plaintiff
and told him Duric had accused him of threatening her,
locking her in the bedroom, and pointing a gun at her.
Defendant police officers Miller, Alamshaw, Martinez, Good,
Yunck, and Campbell later arrived at Plaintiff’s home.
Plaintiff denied Duric’s allegations and attempted to
show the officers text messages from Duric proving (1) Duric
wanted the bedroom locks installed and (2) Plaintiff had
saved Duric from suicide on many occasions. Officers
nevertheless arrested Plaintiff. Plaintiff was then taken to
District Two Jail and interrogated by Defendant Martinez, who
was recording the interview on his body-worn camera and his
personal cell phone. Defendant Miller spoke with Duric.
Defendant officers then went outside of the interview rooms
and spoke to one another, sometimes with their body-worn
cameras recording and other times with the cameras muted.
Plaintiff was subsequently charged with aggravated assault in
Maricopa Superior Court. While the charges were pending,
Plaintiff served three days of jail time and wore an ankle
bracelet for a period of eight months. That case was
ultimately dismissed on the State’s motion.
asserts that the evidence used against him was untruthful,
including the police report, Defendant Martinez’ grand
jury testimony, and the body-worn camera video of Defendant
Good, which Plaintiff alleges was altered “sometime in
September of 2018.” (Doc. 1-3 at 26.) Plaintiff asserts
that Duric admitted that the assault claim was “an
orchestration between herself, Michael Coleman [a neighbor
with whom Plaintiff alleges Duric had a sexual relationship],
and Defendant Miller.” (Doc 1-3 at 26.) Plaintiff
alleges that Duric told him that the arrest was set up by
Coleman and Defendants Miller, Alamshaw, Martinez, and
“others.” (Doc 1-3 at 26.) Plaintiff alleges
Duric told him that she was told by Defendant Miller that she
should purchase locks to put on the bedroom door “to
make Plaintiff look controlling and abusive.” (Doc 1-3
at 26.) Plaintiff alleges Duric told him that Defendants
Miller, Alamshaw, and Martinez had been to her house before
the arrest and were pushing Duric to call them every day.
Plaintiff alleges Duric claimed Coleman and Defendant Miller
beat her and threatened her to keep her from telling the
truth. Plaintiff alleges he was given pictures of Duric
showing significant trauma to her face, and that Duric
claimed Coleman and Defendant Miller threatened her, gang
raped her, and threatened to inject cocaine into her, and
that they were monitoring and intimidating her. Finally,
Plaintiff alleges Duric claims Defendant Bodrero threatened
her that she could be charged with false reporting regarding
an email she sent retracting her story.
filed this action on March 6, 2019 asserting claims against
the City of Scottsdale and police officers Miller, Bodrero,
Alamshaw, Martinez, Good, Campbell, and Yunck. Pursuant to 42
U.S.C. § 1983, Plaintiff claims Defendant officers
violated his federal rights “by the false arrest, false
imprisonment, abuse of process, wrongful arrest, and/or
malicious prosecution of Plaintiff.” (Doc. 1-3 at 29.)
Also pursuant to 42 U.S.C. § 1983, Plaintiff claims the
City of Scottsdale violated the First, Fourth, and Fourteenth
Amendments as well as 42 U.S.C. § 1981 through
“Deliberately Indifferent Policies, Practices, Customs,
Training, and Supervision.” (Doc. 1-3 at 31.) Under
Arizona law, Plaintiff brings claims for intentional
infliction of emotional distress, abuse of process, malicious
prosecution, and wrongful arrest.
survive dismissal for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6), a complaint must
contain more than a “formulaic recitation of the
elements of a cause of action”; it must contain factual
allegations sufficient to “raise the right of relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). While “a
complaint need not contain detailed factual allegations . . .
it must plead ‘enough facts to state a claim to relief
that is plausible on its face.’” Clemens v.
DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir.
2008) (quoting Twombly, 550 U.S. at 570). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). The
plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are ‘merely consistent
with’ a defendant's liability, it ‘stops
short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting
Twombly, 550 U.S. at 555) (internal citations
analyzing a complaint for failure to state a claim,
“allegations of material fact are taken as true and
construed in the light most favorable to the non-moving
party.” Smith v. Jackson, 84 F.3d 1213, 1217
(9th Cir. 1996). However, “the tenet that a court must
accept a complaint’s allegations as true is
inapplicable to threadbare recitals of a cause of
action’s elements, supported by mere conclusory
statements.” Iqbal, 556 U.S. at 678. Legal
conclusions couched as factual allegations are not given a
presumption of truthfulness, and “conclusory
allegations of law and unwarranted inferences are not
sufficient to defeat a motion to dismiss.” Pareto
v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).
Moreover, even when a complaint’s allegations are
“consistent with  unlawful” conduct, a court
may conclude they do not plausibly suggest such conduct
because they are “not only compatible with, but indeed
. . . more likely explained by, lawful . . . behavior.”
Iqbal, 556 U.S. at 680.