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Gashi v. City of Scottsdale

United States District Court, D. Arizona

September 20, 2019

Burim Gashi, Plaintiff,
City of Scottsdale, et al., Defendants.


          G. Murray Enow Chief United States District Judge

         Pending 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 to amend.


         The 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.

         On 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.

         On 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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.


         I. Legal Standard

         To 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 omitted).

         When 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.

         II. ...

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