Free Response to Motion - District Court of Arizona - Arizona

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THE LAW OFFICES OF ROBERT M. COOK

Robert M. Cook (SBN 002628) Kip M. Micuda (SBN 011921) THE LAW OFFICES OF ROBERT M. COOK, PLLC Missouri Commons - Suite 185 1440 E. Missouri Avenue Phoenix, Arizona 85014 Telephone: (602) 285-0288 Facsimile: (602) 285-0388 E-mail: [email protected] Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert A. Cuevas, Plaintiff, v. John Miranda, et al. Defendants. Plaintiff, by and through his undersigned attorney, hereby responds to Defendants' Motion to Dismiss. Plaintiff also files, simultaneously with his response, a Motion for Leave to File Second Amended Complaint. Plaintiff urges this Court to allow an Plaintiff's Response to Defendants' Motion to Dismiss Case No:2:04-cv-00476-PGR

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MISSOURI COMMONS - SUITE 185 1440 EAST MISSOURI PHOENIX, ARIZONA 85014

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amendment of the complaint and deny the instant motion to dismiss. This response is supported by the Memorandum of Points and Authorities attached hereto and incorporated herein. RESPECTFULLY SUBMITTED this 22nd day of May, 2008. THE LAW OFFICES OF ROBERT M. COOK, PLLC By /s/ Robert McConnell Cook, Sr. Robert McConnell Cook, Sr. Kip M. Micuda Attorneys for Plaintiff

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THE LAW OFFICES OF ROBERT M. COOK

I certify that on this 22nd day of May, 2008, I filed the foregoing document via CM/ ECF, with: The United States District Court District of Arizona COPY of the foregoing sent via facsimile and U.S. Mail this 22nd day of May, 2008, to: Daniel R. Malinski, Esq. BURCH & CRACCHIOLO, PA PO Box 16882 Phoenix, Arizona 85011-6882 Facsimile: (602) 234-0341

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MISSOURI COMMONS - SUITE 185 1440 EAST MISSOURI PHOENIX, ARIZONA 85014

By: /s/ Vicki L. Morgan Vicki L. Morgan

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MEMORANDUM OF POINTS AND AUTHORITIES
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Defendants filed a Motion to Dismiss the First Amended Complaint in this matter.
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Besides responding herein to that motion, Plaintiff has also moved this Court for leave to
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amend the instant complaint because the First Amended Complaint requires clarification and
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correction, and it should accurately reflect the evidence that will be presented to this Court.
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Admittedly, the First Amended Complaint requires some corrections. However, that
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it sounds in retaliation is inescapable. The amended complaint should be construed in the
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light most favorable to Plaintiff and its factual allegations should be taken as true.
THE LAW OFFICES OF ROBERT M. COOK

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Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Abramson v. Brownstein, 897 F.2d
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MISSOURI COMMONS - SUITE 185 1440 EAST MISSOURI PHOENIX, ARIZONA 85014

389, 391 (9th Cir. 1990). Claims need not include detailed facts to survive, see Bell Atl.
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Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007), and
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"when an allegation is capable of more than one inference, [the allegation] must be
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construed in [ ] [P]laintiff[]s[`] favor." Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998); see Thompson, 295 F.3d at 895. In more recent words, a claim that states a "plausible

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entitlement to relief" survives. Bell Atl. Corp., ___ U.S. at ___, 127 S. Ct. at 1964-65.
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Taking into account Defendants' motion, which largely fails to support many
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contentions with authority, the proposed Second Amended Complaint narrows the scope of
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this action to Defendants City, Miranda and Ruiz. In addition, the Second Amended
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Complaint is limited to three causes of action: unconstitutional denial of property interests
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under the Fifth and Fourteenth Amendments and 42 U.S.C. §1983; unconstitutional denial
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of liberty interests under the Fourth and Fourteenth Amendments and 42 U.S.C. §1983; and
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unconstitutional malicious prosecution under the Fourteenth Amendment and 42 U.S.C.
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§1983. The Second Amended Complaint details many of the events and the roles that each
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Defendant had in their conspiracy to have Plaintiff detained, charged and criminally
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THE LAW OFFICES OF ROBERT M. COOK

prosecuted, as well as suspended and attempted terminated from his employment. The Second Amended Complaint asserts that John Schwamm, Plaintiff's former supervisor with the Department of Homeland Security, met with Defendants Miranda and Ruiz and conspired to have Plaintiff detained, charged, prosecuted, suspended and attempted terminated because Plaintiff worked with the United States Army, for his criticism of Schwamm's lack of ability as a manager, for Miranda being admonished for waiving a traffic ticket given against Plaintiff, and for Plaintiff's efforts to arrest Heredia and the four Latin undocumented alien males. It asserts, as does the First Amended Complaint, that Plaintiff had the proper authority, as a customs inspector, to assert himself to arrest Heredia. Having the power and authority to act as he did manifests the conclusion that there was never any probable cause for his detention, being charged or being criminally prosecuted. Similarly, it is a manifest conclusion that there was no legitimate basis for Plaintiff being suspended or terminated, as the conspiracy intended. For their roles in his detention, charging, prosecution, suspension and attempted termination, Defendants are each responsible and liable under federal civil rights laws. Defendants cite no authority to the contrary. Similarly, the Second Amended Complaint clarifies that the claims against Defendants are not based upon vicarious liability. As to the City, the City is liable because of a long-standing practice and custom of Defendant City to allow those embraced with its power and authority, like Defendants Miranda and Ruiz, to utilize their status, power and authority as city managers to retaliate against anyone they choose for whatever reason, such as repaying a friend like Schwamm. As to Miranda and Ruiz, they are liable, for example, because of their efforts, along with Schwamm, to ensure that Plaintiff was criminally prosecuted, despite knowing that there was no probable cause, and to ensure that he was suspended and terminated, despite knowing that there was no legitimate basis to do either. Defendants are sued, in part, because of their efforts and intentions to deny him his

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freedom­liberty­and to deny him his property­employment. Defendants' contentions that such claims are vague and conclusory make no sense. Given the Second Amended Complaint, Plaintiff urges this Court to deny the motion to dismiss as moot and allow Plaintiff leave to file the Second Amended Complaint.

RESPECTFULLY SUBMITTED this 22nd day of May, 2008.
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THE LAW OFFICES OF ROBERT M. COOK, PLLC
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By /s/
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THE LAW OFFICES OF ROBERT M. COOK

Robert McConnell Cook, Sr. Robert McConnell Cook, Sr. Kip M. Micuda Attorneys for Plaintiff

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MISSOURI COMMONS - SUITE 185 1440 EAST MISSOURI PHOENIX, ARIZONA 85014

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