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James v. City of Peoria

United States District Court, D. Arizona

October 18, 2019

Joseph E James, Jr., Plaintiff,
v.
City of Peoria, et al., Defendants.

          ORDER

          MICHAEL T. LIBURDI UNITED STALES DISTRICT JUDGE

         Before the Court is the Motion to Dismiss (Doc. 8) filed by Defendants City of Peoria, Peoria Police Department (“PPD”); Chief Roy W. Minter; Sgt. D. Hickman, and Detective Shana Higgins (collectively the “Defendants”). For the reasons stated herein, the Court grants the Motion to Dismiss with leave to amend.

         I. Factual Background

         Plaintiff Joseph E. James Jr. resides in the City of Peoria. The following factual summary derives from the Complaint's factual allegations.

         A. August 13, 2016 Robbery On August 13, 2016, Plaintiff reported a robbery at his home to the PPD. The next day, the Arizona Department of Public Safety discovered Plaintiff's safe in the trunk of a vehicle that was involved in an accident on Interstate 17. Plaintiff provided evidence and witness information to PPD personnel. Plaintiff made numerous follow-up calls to the PPD, however, police officials did not follow up on these leads.

         B. September 22, 2016 Shooting

         The second incident involved a shooting at Plaintiff's residence on September 22, 2016. The Complaint states that Plaintiff was “shot at six times through the backyard of his residence.” Without providing specific detail relating to his efforts to report this incident to PPD, Plaintiff alleges that, “[t]his incident was never fully investigated.”

         C. October 17, 2017 Personal Property Theft

         The Complaint alleges a third incident that took place on October 17, 2017. On that day, Plaintiff states that all of the personal property in his residence was stolen by a tenant who had to be evicted through the judicial process. Plaintiff's stolen property included such personal items as televisions, beds, pictures, silverware, dishes, and a dining table. Plaintiff contends that he contacted the PPD concerning the theft and provided evidence. The PPD failed to show up at two scheduled meetings at his property with the Plaintiff and witnesses.

         The Complaint alleges further that “[i]t took seven days for the police to file a report on the robbery.” It also states that the PPD failed to contact over ten witnesses, including three eyewitnesses who saw the suspect steal the property. Other witnesses claim to have seen the suspect giving away Plaintiff's stolen property and were not questioned by the Police.

         The Complaint later states that one witness was interviewed and “after several hours of questions, the Detective coerced the witness to change her testimony.” Moreover, the Complaint alleges that the PPD failed to consider social media, video, and other evidence provided by the Plaintiff that identified and linked his stolen property to the person suspected of stealing it. According to the Complaint, “[t]he police have failed to investigate this crime because of the history between the lead investigator and the [P]laintiff.”

         II. Procedural Background

         Pursuant to A.R.S. § 12-821.01(A), Plaintiff purportedly filed a Notice of Claim against the City of Peoria, the PPD, Chief Roy W. Minter Jr., Sgt. Hickman, and Detective Shana Higgins on May 31, 2018.[1] On February 26, 2019, Plaintiff filed his Complaint in the Arizona Superior Court. The Complaint alleges claims for relief for negligence, violation of Plaintiff's civil rights under the 5th and 14th Amendments of the United States Constitution, negligent supervision, intentional infliction of emotional distress, fraudulent concealment, and “emotional distress.” Plaintiff asks for an award of $500, 000, a punitive damages award in the amount of $500, 000, and for his costs.

         Defendants removed the case to this Court on March 28, 2019, based on federal question jurisdiction under 28 U.S.C. § 1331. Thereafter, Defendants moved to dismiss the complaint in its entirety.

         Defendants argue that all state law claims are barred by: 1) the statute of limitations, 2) the notice of claim statute, and 3) state law qualified immunity. Defendants further allege that all counts of the complaint fail to state a claim under Federal Rule of Civil Procedure 12(b)(6).[2]

         Defendants further make arguments in favor of dismissal as to certain individual Defendants. First, Defendants argue that Plaintiff failed to allege (as is required) a Monell claim on the federal count against the City of Peoria; thus, justifying dismissal of the federal count as to this Defendant. Second, Defendants argue that the Peoria Police Department is a non-jural entity and should be dismissed on that basis. Third, Defendants argue that Defendant Minter has never been served.

         III. ...


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