United States District Court, D. Arizona
Honorable Steven P. Logan United States District Judge
the Court is Defendants' Motion to Dismiss (Doc. 16) and
Plaintiff's Motion to Amend (Doc. 21). The Court rules as
filed a complaint 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).
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).
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).
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.
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.
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).
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 claim for malicious prosecution.
“A Bivens claim of malicious prosecution
derived from falsified evidence seeks to vindicate rights
protected directly by the Fourth
Amendment.” 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).
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.
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 ...