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Fiori v. Peoria Police Department

United States District Court, D. Arizona

January 8, 2020

Damon G Fiori, Plaintiff,
Peoria Police Department, et al., Defendants.



         Pending before the Court is Defendants' Motion to Dismiss. (Doc. 4). Plaintiff filed a Response[1] (Doc. 12) and Defendants filed a Reply (Doc. 13).

         I. BACKGROUND

         On 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).

         In his 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 acquittal.


         Defendants 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.

         A. Peoria PD is a Non-Jural Entity

         Defendants 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).

         Numerous 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.

         B. Failure to Serve Process on Defendants Miller and Minter

         Pursuant 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 cause).

         Here, 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.[2] 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.

         Plaintiff 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.

         C. Rule 12(b)(6)

         To 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 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.

         1. Malicious ...

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