Free Motion to Dismiss Counts/Claims - District Court of Arizona - Arizona

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B URCH & C RACCHIOLO, P.A. 702 East Osborn Road Phoenix, Arizona 85014 Telephone (602) 274-7611 Facsimile (602) 234-0341 [email protected] Daniel R. Malinski, SBA #005911

5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 Robert A. Cuevas, 10 Plaintiff, 11 vs. 12 13 14 15 16 Defendants. 17 18 19 20 21 22 23 24 25 Defendants the City of San Luis (San Luis), the City of San Luis Police Department ("the Police Department"), John Miranda, and Alex Ruiz (collectively "the defendants") move to dismiss plaintiff Robert Cuevas's suit against them. Cuevas has brought claims under the United States Constitution and under 42 U.S.C. §§ 1983, 1981, and 1985. But, as will be discussed below, none of Cuevas's allegations state a claim upon which relief can be granted, and therefore defendants are entitled to dismissal. City of San Luis, Arizona; Police Department of City of San Luis, Arizona; and John Miranda, Former Chief of Police, City of San Luis, Arizona and Alex Ruiz, Former City Administrator for the City of San Luis, Arizona, both in their official and individual capacities, DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT Case No. CIV-04-0476-PHXPGR Attorneys for Defendants John Miranda, City of San Luis, City of San Luis Police Department, and Alex Ruiz.

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This motion is brought pursuant to Rule 12(b)(6), Fed. R. Civ. P., and is supported by the following Memorandum of Points and Authorities. I. Overview.1 On September 17, 2002, Cuevas was arrested and charged with reckless driving, endangerment, and criminal damage for his involvement in an automobile accident that had occurred on July 25, 2002. [Plaintiff's Complaint, ¶¶ 35, 12.] Cuevas alleges that the accident happened while he was driving home after completing a shift as a customs inspector for the Department of Homeland Security. [Id. ¶ 12.] Cuevas claims he saw what he thought were four illegal aliens jump from the bushes into a car stopped on the side of the road. [Id. ¶¶ 1, 12, 13.] Then the vehicle sped-off and Cuevas took down its license plate number to give to "the proper authorities." [Id. ¶¶ 14, 15.] Cuevas alleges the vehicle was driven erratically, and the driver apparently had little regard for other traffic. [Plaintiff's Complaint, ¶¶ 14, 17, 18.] Cuevas decided to follow the vehicle whose speed ranged from 80-95 miles per hour, even though, by Cuevas's own accounts, the vehicle's driver drove with increasing speed and recklessness when he noticed Cuevas, and even though Cuevas had already taken down the vehicle's license plate number. [Id. ¶¶ 15-19.] Cuevas chased the vehicle into a residential neighborhood where he noticed the driver abandon it and run into someone's backyard. [Plaintiff's

Complaint, ¶ 21.] Cuevas then crashed his vehicle into the garage of someone's

For the purposes this motion to dismiss, defendants are taking the factual allegations in Cuevas's complaint as true. See Epstein v. Washington Energy, Co., 83 F.3d 1136, 1140 (9th Cir. 1996). -2-

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home. [Id. ¶ 22.] San Luis Police Department officers arrived, conducted an investigation, and found and arrested the driver. [Id. ¶¶ 22, 23.] The investigation into the incident continued, and on September 17, 2002, Cuevas was arrested for reckless driving, endangerment, and criminal damage. [Plaintiff's Complaint, ¶¶ 27, 35.] The Department of Homeland Security then suspended Cuevas until the criminal charges against him were resolved. [Id. ¶ 33.] Eventually, the charges against Cuevas were dismissed. [Id. ¶ 48.] Cuevas has now sued San Luis, the Police Department, John Miranda (the former Chief of Police), and Alex Ruiz (the former City Administrator for the San Luis). Cuevas asserts nine claims against the defendants under the United States Constitution and under §§ 1983, 1981, and 1985. But as will be explained below, Cuevas's complaint fails to state a claim and defendants are entitled to dismissal. II. The Police Department is a non-jural entity and cannot be sued. The Police Department is a non-jural entity because it is merely a department of San Luis. Non-jural entities, which include unincorporated

associations, may not sue or be sued "in [their] common name to enforce a substantive right existing under the United States Constitution or laws." Rule 17(b)(3), Fed. R. Civ. P. Because the Police Department is a non-jural entity, it cannot be sued, and is therefore entitled to dismissal. III. Any claim Cuevas was suspended from his employment on an unconstitutional basis must be dismissed because defendants did not employ him. Any claim that defendants are liable for Cuevas's suspension from Homeland Security necessarily fails. Cuevas admits he was employed by a large federal agency: the Department of Homeland Security. He has not alleged, -3-

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however, that he was employed, at any time, by San Luis or any of its departments. Because defendants were not Cuevas's employer and were not responsible for making the decision to suspend him, it is factually impossible for them to have made that decision on an unconstitutional basis (i.e. race). Therefore, any claim based on Cuevas's suspension should be dismissed. FOURTH AND FIFTH AMENDMENT CLAIMS Cuevas claims that he is entitled to relief because defendants violated his Fourth and Fifth Amendment rights. [Plaintiff's Complaint, Counts VIII and IX.] But both claims should be dismissed because there is no direct cause of action under the United States Constitution, and Cuevas's Fourth Amendment and Fifth in its order gr Amendment Rights were not violated. IV. There is no direct cause of action under the Untied States Constitution. As this Court stated anting Cuevas leave to file his first amended complaint, there is no direct cause of action "under the United States Constitution[,] . . . a litigant complaining of a violation of a constitutional right must utilize . . . § 1983." Azul-Pacifico, Inc., v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992), cert denied, 506 U.S. 1081 (1993). Because claims IX and X seek relief directly under the Fourth and Fifth Amendments to the United States Constitution, they fail to state a claim and should be dismissed. /// /// /// -4-

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V.

Cuevas's Fourth and Fifth Amendment Rights were not violated in any event. Assuming arguendo Cuevas's Fourth and Fifth Amendment claims were

brought pursuant to § 1983, which they were not, defendants would be still entitled to dismissal. A plaintiff is entitled to relief under § 1983 only if the plaintiff's constitutional rights were violated. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Because Cuevas's Fourth and Fifth Amendment rights were not violated, as will be explained below, he would have no Fourth or Fifth Amendment claims even if they had been properly raised under § 1983. Therefore, his claims brought under the Fourth and Fifth Amendments should be dismissed .2 A. Cuevas's Fourth Amendment rights were not violated because his arrest and prosecution were based on probable cause.3

The Fourth Amendment provides the right "to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," absent "probable cause." U.S. Const. amend. IV (emphasis

added). Probable cause exists, and Fourth Amendment rights may be infringed, when, "under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime." U.S. v. Smith, 790 F.2d 789, 792 (9th Cir. 1986).
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Cuevas's claims would also be barred because there is no vicarious liability under § 1983, which is discussed in Section VI infra. Cuevas alleges "Defendants' detention, charging and prosecution of Plaintiff was without probable cause." [Plaintiff's Complaint, ¶ 40.] But, "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Washington Energy, Co., 83 F.3d 1136, 1140 (9th Cir. 1996). -5-

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Cuevas was charged with criminal damage, endangerment, and reckless driving. Cuevas alleges all of the circumstances that would lead an officer to believe Cuevas committed the crimes with which he was charged, including: ! Cuevas admits he was off duty, [Plaintiff's Complaint, ¶ 12]; ! Cuevas admits he chased another vehicle, [Id. ¶ 15]; ! Cuevas admits the vehicle he chased was traveling at high speeds ranging from 80-95 miles per hour, [Id., ¶¶ 17, 19]; ! Cuevas admits that at least part of the chase occurred in a residential neighborhood, [Id., ¶¶ 21, 22]; ! Cuevas admits he crashed into a person's residential garage, [Id., ¶ 22]; and ! Cuevas admits he took down the license plate of the vehicle for "the proper authorities," before the chase began, [Id., ¶ 15 (emphasis added)]. Probable cause existed in Cuevas's case because, based upon Cuevas's own allegations, an officer could conclude "there was a fair probability" Cuevas was guilty of reckless driving, endangerment, and criminal damage. Because probable cause existed, there was no violation of the Fourth Amendment. Therefore, Cuevas's Fourth Amendment claim should be dismissed. B. None of the rights protected by the Fifth Amendment are implicated by Cuevas's case.

Cuevas has not alleged which of the five Fifth Amendment rights defendants allegedly violated. The only Fifth Amendment protection potentially applicable to Cuevas's case is the Fifth Amendment's Due Process Clause. But -6-

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the Fifth Amendment's Due Process Clause applies solely to federal action -- the defendants here are municipal actors. See Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). The Fifth Amendment is simply not implicated, and thus not violated, by the facts of Cuevas's case. Therefore, Cuevas's Fifth Amendment claim should be dismissed.4 SECTION 1983 Cuevas's § 1983 claims suffer from three fatal deficiencies. First, there is no vicarious liability for municipalities or supervisory officials under § 1983. Second, the police officers and prosecutors had immunity from suit. And finally, none of Cuevas's allegations are actionable under § 1983. Each of these reasons will be discussed below. VI. There is no vicarious liability under § 1983, therefore, Cuevas's § 1983 claims should be dismissed. Under § 1983, municipalities and supervisory officials cannot be held vicariously liable. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Jones v. W illiams, 297 F.3d 930, 934 (9th Cir. 2002). Cuevas's § 1983 claims against San Luis, Miranda, and Ruiz are based entirely upon a theory of vicarious liability and should be dismissed.5
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Claims with deficiencies that cannot be cured by amending the complaint should be dismissed with prejudice. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930 (9th Cir. 2004). As discussed above, even if Cuevas had properly plead his Fourth and Fifth Amendment claims, defendants would still be entitled to dismissal. Therefore, Cuevas's Fourth and Fifth Amendment claims should be dismissed with prejudice. Cuevas alleges that he "is informed and believes that Defendants and each of them called for and caused the detention, charging and prosecution of Plaintiff" for various reasons, but plaintiff has not alleged a single fact with regard to any of the defendants indicating they were personally involved in his arrest and -7-

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A.

Cuevas's § 1983 claims against San Luis should be dismissed because it has no unconstitutional policy.

A municipality is only liable under § 1983 if it has an unconstitutional policy, which caused the alleged constitutional rights violation. Monell, 436 U.S. at 691. Cuevas does not allege San Luis has an unconstitutional policy, and his § 1983 claims against it are based entirely upon the impermissible theory of vicarious § 1983 liability. Therefore, the City of San Luis is entitled to dismissal. B. Cuevas's § 1983 claims against Miranda and Ruiz should be dismissed because they did not personally participate in the alleged constitutional violation.

A supervisory official is not liable under § 1983 unless there is a showing of "personal participation in the alleged rights deprivation: there is no respondeat superior liability under § 1983." Jones, 297 F.3d at 934. Here, Cuevas has alleged no facts, whatsoever, supporting an allegation that Miranda and Ruiz did anything in connection to Cuevas's arrest and prosecution. Absent factual

allegations that Miranda and Ruiz personally "participated in the alleged rights deprivation," they are entitled to dismissal. See id. VII. Even if § 1983 provided for vicarious liability, Cuevas's § 1983 claim should be dismissed because the police officers and prosecutors had immunity. A municipality is not liable when its employee, upon whose actions the lawsuit is based, is entitled to immunity. Mulligan v. Grace, 666 P.2d 1092, 1094 (Ariz. App. 1983). Because the San Luis police officers had qualified immunity

prosecution. [Plaintiff's Complaint, ¶¶ 36, 38, and 39.] But, "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Washington Energy, Co., 83 F.3d 1136, 1140 (9th Cir. 1996). -8-

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and the San Luis prosecutors had absolute immunity, San Luis, Miranda, and Ruiz are not liable. A. The San Luis police officers had qualified immunity to arrest Cuevas.

Qualified immunity protects officers (who may have violated an individual's rights) if it would "be clear to a reasonable officer that [the] conduct was []lawful in the situation . . . confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001). Here, the police officers had qualified immunity. First, Cuevas's constitutional rights were not violated. [See § V supra. and Section VIII infra.] Second, assuming Cuevas did suffer a constitutional violation, it would be clear to any reasonable officer who responded to the scene or read the incident reports that there was probable cause to believe Cuevas drove recklessly, that reckless driving endangered members of a residential community, and it resulted in criminal damage to someone's home. [See Section V(A) supra.] Therefore, because the police officers had probable cause to arrest Cuevas and a reasonable officer would have considered their actions lawful, the police officers had qualified immunity. B. The city prosecutors had absolute immunity.

Prosecutors "functioning in their official capacities" are entitled to absolute immunity. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). Cuevas's complaint is devoid of any allegation that the prosecutors in his criminal case acted outside the scope of their of their official capacities, thereby stripping them of their absolute immunity.

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Because the police officers and prosecutors had immunity, defendants cannot be held liable. VIII. None of Cuevas's allegations are actionable under § 1983. W hen claims are brought under § 1983, plaintiffs must identify "the specific constitutional right allegedly infringed by the challenged" action. Graham v.

Conner, 490 U.S. 386, 394 (1989). None of Cuevas's claims identify a specific constitutional right. Instead, Cuevas asserts nebulous claims based exclusively upon § 1983 and violations of his Fourteenth Amendment rights; he claims: ! Defendants' conduct allegedly violated "Plaintiff's right to equal protection as provided by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983;" ! Defendants' conduct allegedly violated "Plaintiff's liberty interests as provided by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983;" ! Defendants' conduct violated "Plaintiff's property interests as provided by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983;" and ! Defendants conduct violated "Plaintiff's right to be free from a prosecution brought with malice and without probable cause as provided by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. For the reasons discussed below, Cuevas's § 1983 claims fail. A. Section 1983 does not protect individual's rights and interests.

Section 1983 does not establish or protect constitutional rights, it "merely provides `a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) quoting Baker v. McCollan, 443 U.S. 137, 144 - 10 -

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n. 3 (1979). Cuevas asserts equal protection rights, liberty interests, property interests, and the right to be free from malicious prosecution are protected by § 1983. This assertion is wrong: § 1983 does not protect those rights. Therefore, unless the Cuevas identifies a constitutional source for the right that was allegedly violated, outside of § 1983, the § 1983 claims fail. B. Cuevas has not identified a liberty or property interest.

Recovery under § 1983 based upon the Fourteenth Amendment's Due Process Clause requires plaintiffs "allege a deprivation of a life, liberty or property interest within the meaning of the Fourteenth Amendment's Due Process Clause." Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 523 (9th Cir. 1994) (emphasis added). Cuevas alleges his liberty and property interests were violated. But

concepts of liberty and property are vast and encompass interests that are not protected by the Fourteenth Amendment. Because Cuevas has not identified specific interests, which were allegedly were violated, he has failed to set forth "`a cognizable legal theory' or ` . . . sufficient facts . . . under a cognizable legal theory.'" Johnson v. Riverside Healthcare Sys., LP, 516 F.3d 759, 763 (9th Cir. 2008) quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). In other words, Cuevas's § 1983 claims based upon alleged violations of his "liberty" and "property" interests are vague, overly-broad, and fail to state a claim under § 1983. /// /// /// - 11 -

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C.

Cuevas's malicious prosecution claim is not actionable under § 1983.

Generally, malicious prosecution claims are not actionable under § 1983. Usher v. City of Los Angeles, 828 F.2d 556, 561-62 (9th Cir. 1987). Only one exception to this rule exists: when the defendants maliciously prosecuted with the intent to deprive the plaintiff of his rights. Id. at 562. Cuevas's case does not fall within this exception because he does not even have a claim for malicious prosecution under state tort law. To state a claim for malicious prosecution, the plaintiff must, inter alia, have been prosecuted without probable cause. Cullison v. City of Peoria, 584 P.2d 1156, 1160 (Ariz. 1978). As discussed in Section V(A) supra., Cuevas's arrest and prosecution were supported by probable cause. Therefore, he has no malicious prosecution claim under § 1983 or any other law for that matter. D. Cuevas's right to equal protection was not violated because he was not discriminated against on account of his race.

"To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998), cert. denied, 525 U.S. 1154 (1999) (emphasis added). Assuming arguendo San Luis, Miranda, and Ruiz had been involved in Cuevas's case (which they had not, see Section VI supra.), there are no factual allegations that Cuevas's race played any role, whatsoever, in their actions. First, Cuevas, Miranda, and Ruiz are all Hispanic. Second, The factual allegations in - 12 -

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Cuevas's complaint support only one conclusion: Cuevas was arrested because there was probable cause to believe he was guilty of reckless driving, endangerment, and criminal damage. Therefore, Cuevas's equal protection claim should be dismissed. SECTION 1981 Cuevas asserts two § 1981 claims against the defendants: racial discrimination and retaliation. But both of these claims fail for the following reasons: ! San Luis is entitled to dismissal because there is no municipal vicarious liability under § 1981; ! Cuevas's racial discrimination claim must be dismissed because there are no factual allegations supporting it; and ! Cuevas's retaliation claim must be dismissed because it is not based on race, but rather his employment as a customs inspector. Each of the reasons will be discussed below. IX. San Luis is entitled to dismissal on Cuevas's § 1981 claims because there is no vicarious municipal liability under § 1981. There is no vicarious liability for municipalities sued under § 1981; instead the municipality itself must have caused the alleged violation by having an unconstitutional policy. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996). Cuevas has not alleged San Luis has an

unconstitutional policy, and his claims against San Luis are based entirely upon a theory of vicarious liability, which is impermissible. Therefore, Cuevas's § 1981 claim against San Luis must be dismissed. - 13 -

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X.

Cuevas's § 1981 racial discrimination claim should be dismissed because there are no factual allegations supporting it. A claim brought under § 1981 "must . . . be dismissed [if] the complaint is

3 devoid of any factual allegation which would support . . . at least a reasonable 4 inference that [the defendant] discriminated against [the plaintiff] because of . . . 5 race." Chiles v. Crooks, 708 F. Supp. 127, 132-33 (D. S.C. 1989) (emphasis in 6 original). 7 Cuevas has not alleged any facts that support a claim that he was 8 discriminated against. Though Cuevas makes blanket, conclusory statements that 9 defendants' actions were motivated by race, those statements are unsupported 10 by any factual allegations. See Epstein v. W ashington Energy, Co., 83 F.3d 1136, 11 1140 (9th Cir. 1996) ("[C]onclusory allegations of law and unwarranted inferences 12 are insufficient to defeat a motion to dismiss for failure to state a claim."). 13 In fact, Cuevas's allegations indicate there was no racial discrimination: All 14 of the parties (Cuevas, Miranda, and Ruiz) are Hispanic, and Cuevas's arrest and 15 prosecution were supported by probable cause. 16 Therefore, Cuevas's § 1981 racial discrimination claim must be dismissed. 17 XI. 18 19 "[S]ection § 1981 redresses only discrimination based on race." Lowe v. 20 City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). Cuevas alleges he was 21 retaliated against because he was engaged in his duties as a customs inspector. 22 To state the obvious, this is not a claim based upon race. Therefore, Cuevas's § 23 1981 retaliation claim must be dismissed. 24 25 - 14 Cuevas's § 1981 retaliation claim should be dismissed because it is not based upon a theory of race discrimination. See Section V(A), supra.

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SECTION 1985 Cuevas alleges that defendants are liable for "conspiracy to interfere with [his] civil rights" under 42 U.S.C. § 1985. Cuevas does not allege which

subsection of § 1985 he is suing under; but, as explained below, Cuevas's conspiracy claim fails because there was no agreement between the defendants to violate Cuevas's rights, and even if there was, it was not motivated by racial animus. XII. Cuevas's conspiracy § 1985 claim fails because there was no agreement between the defendants to violate Cuevas's rights. A complaint that "is devoid of any discussion of an agreement amongst the [defendants] to violate [the plaintiff's] constitutional rights" fails to state a claim under § 1985. Olsen v. Idaho State Bd. Of Med., 363 F.3d 916, 929-30 (9th Cir. 2004). Regardless of whether Cuevas's conspiracy claim is brought under § 1985(1) or 1985(3) (subsection (2) does not apply), it fails because there is no allegation that the defendants had an agreement to violate Cuevas's rights XIII. Cuevas cannot state a claim for relief under § 1985(3) because there was no racial animus. Conspiracy claims brought under § 1985(3) must be dismissed unless the plaintiff shows his rights were deprived because the conspirators were motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992)

(internal quotations omitted). Cuevas does not have a conspiracy claim under § 1985(3). First, as discussed above, none of plaintiff's constitutional rights were violated. Second, - 15 -

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plaintiff has not alleged an agreement between the defendants that was motivated by racial animus. In fact, Cuevas's allegations support only one conclusion: Cuevas was arrested and prosecuted based on probable cause. Therefore, Cuevas's conspiracy claim should be dismissed. CONCLUSION For the foregoing reasons, defendants' motion to dismiss should be granted. DATED this 11th day of April, 2008. BURCH & CRACCHIOLO, P.A.

By s/ Daniel R. Malinski Daniel R. Malinski 702 E. Osborn Road, Suite 200 Phoenix, AZ 85014 Attorneys for Defendants John Miranda, City of San Luis, City of San Luis Police Department, Eddie Bejarano, Alex Ruiz, and City Attorney's Office for the City of San Luis

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1 CERTIFICATE OF SERVICE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 17 s/ Marian J. Reed The Honorable Paul G. Rosenblatt United States Magistrate Judge Sandra Day O'Connor U.S. Courthouse, Suite 621 401 West Washington, SPC 56 Phoenix, AZ 85003-2156 XXX I hereby certify that on April 11, 2008, I MAILED a courtesy copy of the attached document to: ____ I hereby certify that on _______, 2008, I served the attached document by: U.S. Mail (insert service method: mail, courier service, in-person delivery, e-mail) on the following, who are not registered participants of the CM/ECF System: XXX I hereby certify that on April 11, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Robert M. Cook, Esq. THE LAW OFFICES OF ROBERT M. COOK 207 W est Second Street Yuma, Arizona 85364 Attorneys for Plaintiff and David A. Domina, Esq. DOMINA LAW PC 2425 S. 144 th Street Omaha, NE 68144 Attorneys for Plaintiff

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