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Webb v. United States Department of Veterans Affairs

United States District Court, D. Arizona

December 11, 2019

Larry Webb, Plaintiff,
v.
United States Department of Veterans Affairs, et al., Defendants.

          ORDER

          Honorable Steven P. Logan United States District Judge

         Before the Court is Defendants' Motion to Dismiss (Doc. 16) and Plaintiff's Motion to Amend (Doc. 21). The Court rules as follows.

         I. Background

         Plaintiff filed a complaint[1] on May 9, 2019 against the United States Department of Veterans Affairs, Scott Neibauer, Robert Muller, Dominic Lopez, and Alan Barone (Doc. 1). The complaint alleges that Veterans Administration Medical Center police officers conspired to falsify, alter, and delete police records, ultimately resulting in Plaintiff's conviction of a class 6 felony (Doc. 1 at 4). The complaint further alleges that although the conspiracy was discovered during an internal investigation, Defendants failed to cease prosecution (Doc. 1 at 4).[2]

         II. Legal Standard

         “‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face;' that is, plaintiff must ‘plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court may dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, and (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988), abrogated on other grounds by Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007).

         A complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Facial plausibility requires the plaintiff to plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility does not equal “probability, ” but still requires more than a sheer possibility that a defendant acted unlawfully. Id. “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. (citation and internal quotation marks omitted).

         In deciding a motion to dismiss, the Court must “accept as true the well-pleaded allegations of material fact, ” and construe those facts “in the light most favorable to the nonmoving party.” Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). “[A]llegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences, ” however, are insufficient to defeat a 12(b)(6) motion. Although a complaint “does not need detailed factual allegations, ” a plaintiff must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. This requires “more than labels and conclusions, [or] a formulaic recitation of a cause of action's elements.” Id.

         A court ordinarily may not consider evidence outside the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. Zemelka v. Trans Union LLC, No. CV-18-04179-PHX-SMB, 2019 WL 2327813, at *1 (D. Ariz. May 31, 2019) (citing United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)). “A court may, however, consider materials- documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.” Id. Additionally, “[e]ven if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.” Lovelace v. Equifax Info. Servs. LLC, No. CV-18-04080-PHX-DWL, 2019 WL 2410800, at *1 (D. Ariz. June 7, 2019) (citing Ritchie, 342 F.3d at 908). A plaintiff need “not explicitly allege the contents of that document in the complaint” for the court to consider it, as long as the “plaintiff's claim depends on the contents of [the] document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). “[T]he district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908.

         III. Malicious Prosecution

         Defendants argue that, based on the totality of the complaint, Plaintiff appears to be alleging a claim for malicious prosecution (Doc. 16 at 3). Plaintiff, in response, objects to this classification of his claim, arguing “[t]he listed defendants only supplied a falsified Criminal Investigation to the State of Arizona who then prosecuted [him] based on the falsified information provided.” (Doc. 19 at 3). Plaintiff thus argues he is not alleging a malicious prosecution claim as he has not brought this action against the State (Doc. 19 at 3).

         Defendant is correct that the complaint does not pinpoint a specific constitutional right at issue. The Court, however, also interprets Plaintiff's allegation as a Bivens[3] claim for malicious prosecution. “A Bivens claim of malicious prosecution derived from falsified evidence seeks to vindicate rights protected directly by the Fourth Amendment.”[4] Martinez v. City of W. Sacramento, No. 2:16-cv-02566-TLN-EFB, 2019 WL 448282, at *22 (E.D. Cal. Feb. 5, 2019). In addition, it is well-established “that ‘malicious prosecution actions are not limited to suits against prosecutors but may be brought . . . against other persons who have wrongfully caused the charges to be filed.” West v. City of Mesa, 128 F.Supp.3d 1233, 1241 (D. Ariz. 2015). Thus, “[a] criminal defendant may maintain a malicious prosecution claim not only against prosecutors but also against others-including police officers and investigators-who wrongfully caused his prosecution.” Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011). To maintain a Bivens action for malicious prosecution, “a plaintiff must show that ‘the defendants prosecuted [him] with malice and without probable cause, and that they did so for the purpose of denying [him] [a] specific constitutional right.'” Smith, 640 F.3d at 938 (third alteration in original) (quotation omitted). “An individual seeking to bring a malicious prosecution claim must generally establish that the prior proceedings terminated in such a manner as to indicate his innocence.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004).

         Upon review, however, the Court finds that Plaintiff's claim would not be recognized under Bivens. In Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), the Supreme Court recently cautioned that “expanding the Bivens remedy is now a ‘disfavored' judicial activity” and set forth a two-part test to determine whether a Bivens claim may proceed. 137 S.Ct. at 1857 (quoting Iqbal, 556 U.S. at 675). A court must first consider whether the claim at issue extends Bivens in a new context from previously established Bivens cases, and, if so, a court must then apply a “special factors analysis” to determine whether there are “special factors counselling hesitation” in expanding Bivens. Id. at 1857, 1859-60.

         It is immaterial whether this Court, the Ninth Circuit Court of Appeals, or other district and appellate courts have recognized a particular Bivens claim; the Supreme Court has stated that “[t]he proper test for determining whether a case presents a new Bivens context is as follows: If the case is different in a meaningful way from previous Bi ...


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