United States District Court, D. Arizona
HONORABLE DIANE J. HUMETEWA JUDGE
before the Court is Defendants' Motion to Dismiss. (Doc.
4). Plaintiff filed a Response (Doc. 12) and Defendants filed a
Reply (Doc. 13).
January 25, 2019, pro se Plaintiff Damon Fiori filed
a Complaint against the Peoria Police Department
(“Peoria PD”); the City of Peoria (the
“City” or “Peoria”); Peoria Police
Chief Arthur Miller (“Defendant Miller”); and
former Peoria Police Chief Roy Minter (“Defendant
Minter”) (collectively “Defendants”). (Doc.
1 at 26-34). Plaintiff did not serve any of Defendants with
the Complaint, and on April 22, 2019, Plaintiff filed an
Amended Complaint that he only served on the City and Peoria
PD. (Id. at 6-19, 43-44). The Amended Complaint
contains thirteen counts: (1) “Malicious
Prosecution”; (2) “Negligence Per Se
[sic]”; (3) “Equal Protections [sic] - 42 U.S.C.
§ 1983”; (4) “Violation of Due
Process”; (5) “Obstruction of Justice; (6)
“False Imprisonment”; (7) “Intentional
Infliction of Emotional Distress”; (8) “Abuse of
Process”; (9) “Bad Faith”; (10)
“Defamation”; (11) “Punitive
Damages”; (12) “Miscellaneous Damages”; and
(13) “Violation of Due Process and Civil Rights.”
(Id. at 11-18). Defendants removed the action to
this Court on May 14, 2019. (Id. at 1-3).
Amended Complaint, Plaintiff alleges his ex-wife's family
gave Defendants “free food, drinks and other
services” and in return, Defendants: (1) improperly
declined to prosecute Plaintiff's ex-wife for trespass,
domestic violence, and property damage that Plaintiff
reported between October 2016 and February 2017; (2) arrested
and charged Plaintiff with domestic violence reported by his
ex-wife in March 2017, despite having “sufficient
evidence” that he was innocent; and (3) prosecuted
Plaintiff based on “various misleading, false, or
improperly implied evidence to the created story line used by
the Prosecutors as equally created by his ex-wife, and the
Peoria Police Department, ” including
“falsified” information from a Peoria PD officer
regarding “how he obtained and handled evidence in
support of the criminal investigation.” (Id.
at 7-11). Plaintiff's criminal trial resulted in an
argue that Plaintiff's Amended Complaint should be
dismissed because: (1) he fails to state a claim upon which
relief can be granted pursuant to Rule 12(b)(6), (2)
Defendants Miller and Minter were never served with the
Amended Complaint, and (2) that Peoria PD is a non-jural
entity that cannot be sued. Plaintiff filed a Response;
however, his response failed to substantively respond to
Defendants' arguments. The Court may construe
Plaintiff's failure to respond to all of Defendants'
arguments as consent to granting the Motion to Dismiss on
those grounds. Garcia v. GMAC Mortgage, LLC, 2009 WL
2782791, at * 1 (D. Ariz. 2009) (“If an argument is not
properly argued and explained, the argument is
waived.”); Doe v. Dickenson, 2008 WL 4933964
at *5 (D. Ariz. 2008) (“[T]he Court is entitled to
treat Plaintiffs' failure to respond as waiver of the
issue and consent to Defendants argument”); Currie
v. Maricopa County Cmty. Coll. Dist., 2008 WL 2512841,
at *2 n.1 (D. Ariz. June 20, 2008) (finding that
plaintiff's failure to respond to an argument serves as
an independent basis upon which the court can grant
defendant's motion to dismiss). Nonetheless, the Court
will address the merits of Defendants' arguments.
Peoria PD is a Non-Jural Entity
argue, and Plaintiff does not dispute, that Peoria PD is a
non-jural entity. The Court agrees. “A plaintiff may
not bring a claim against a governmental agency or department
unless it enjoys a separate and distinct legal
existence.” Williams v. City of Mesa Police
Dept., 2009 WL 2568640, at *2 (D. Ariz. Aug. 18, 2009).
“State agencies that may sue and be sued are known as
jural entities; non-jural entities are not subject to
suit.” Morgan v. Arizona, 2007 WL 2808477, at
*8 (D. Ariz. 2007) (citations omitted).
courts have held that a police department is a non-jural
entity that is incapable of suing and being sued, rather a
police department is a subdivision of the political entity to
which it belongs. See e.g., Joseph v.
Dillard's, Inc., 2009 WL 5185393, at *5 (D. Ariz.
Dec. 24, 2009) (“Because the Phoenix Police Department
is a department of the City of Phoenix, and because actions
against the City of Phoenix must be brought in the city's
corporate name, the proper defendant is the City of Phoenix,
not the Phoenix Police Department.”); Gotbaum v.
City of Phoenix, 617 F.Supp.2d 878, 886 (D. Ariz. 2008)
(concluding that that “[c]onsistent with its previous
decision in [Wilson v. Maricopa County, 2005 WL
3054051, at *1 (D. Ariz. Nov. 15, 2005)], the Court concludes
that the Phoenix Police Department is a subpart of the city
of Phoenix, not a separate entity for purposes of
suit.”). Peoria PD, therefore, is a subpart of the City
and not a separate entity for the purposes of a lawsuit.
Moreover, as the City is already named as a Defendant, Peoria
PD's “presence is superfluous.” Scotti v.
City of Phoenix, 2010 WL 994649, at *5 (D. Ariz. March
7, 2010). Accordingly, Peoria PD is a non-jural entity and is
dismissed with prejudice.
Failure to Serve Process on Defendants Miller and
to Rule 12(b)(5), Defendants move to dismiss Defendants
Miller and Minter for insufficient service of process.
“A Rule 12(b)(5) motion is the proper vehicle for
challenging the mode of delivery or lack of delivery of the
summons and complaint.” Murgia v. United
States, 2007 WL 9724214, at *1 (D. Ariz. July 12, 2007)
(internal quotation and citation omitted). Rule 4(m) provides
that a plaintiff has 90 days after the filing of the
complaint to serve the summons and complaint upon a
defendant. Dismissal of a party is appropriate where a
plaintiff fails to show good cause for delays in service.
See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th
Cir. 1994). Good cause only exists in rare circumstances.
See generally Fimbres v. United States, 833 F.2d
138, 139 (9th Cir. 1987) (holding strategic reasons do not
constitute good cause); Townsel v. County of Contra
Costa, California, 820 F.2d 319, 320 (9th Cir. 1987)
(finding inadvertence or negligence does not constitute good
Plaintiff filed his Amended Complaint on April 22, 2019.
Pursuant to Rule 4(c) and (m), he was required to serve all
Defendants with a copy of the Summons and Complaint within 90
days of filing the Complaint-on or before July 22,
2019. Fed.R.Civ.P. 4(c), (m). To date, Plaintiff
has not served Defendants Miller and Minter. Therefore,
absent a showing of good cause, Defendants Miller and Minter
must be dismissed. See Fed. R. Civ. P. 4(m);
Walker, 14 F.3d at 1421-22.
fails to provide any argument or reason for his delay in
effecting service on Defendants Miller and Minter. Although
the Court generally maintains a liberal policy with regard to
pro se litigants, pro se litigants are not
exempt from complying with the basic rules for service of
process. See American Ass'n of Naturopathic
Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir.
2000). Additionally, ignorance of the law is not an excuse
for failure to comply with service of process rules.
Dunmars v. City of Chicago, 22 F.Supp.2d 777, 783
(N.D. Ill. 1998). Accordingly, even though the Court may
grant an extension of time for service of process based on
“good cause, ” Plaintiff does not argue that good
cause exists, and the Court finds no evidence of good cause.
Therefore, the Court will dismiss Defendants Miller and
Minter without prejudice.
survive dismissal for failure to state a claim pursuant to
Rule 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.