Morgan v. Cochise Cnty. Bd. of Supervisors

Decision Date16 September 2020
Docket NumberNo. CV-19-00571-TUC-DCB,CV-19-00571-TUC-DCB
Citation487 F.Supp.3d 789
Parties David M. MORGAN, Plaintiff, v. COCHISE COUNTY BOARD OF SUPERVISORS, et al., Defendants.
CourtU.S. District Court — District of Arizona

David M. Morgan, Bisbee, AZ, pro se.

James M. Jellison, Jellison Law Offices PLLC, Carefree, AZ, for Defendants Cochise County Board of Supervisors, County of Cochise, Brian McIntyre, Sara Ransom, Lori Zucco, Mark Dannels, Ken Bradshaw, Ariel Monge, Todd Borquez, Carol Capas, Pat Call, Ann English, Peggy Judd.

Christopher Phillip White, Office of the Attorney General, Tucson, AZ, for Defendants Mary Ellen Suarez Dunlap, Amy Hunley.


David C. Bury, United States District Judge For reasons explained below, the Court grants the Motions to Dismiss, without leave to amend.

Plaintiff filed his Complaint on December 6, 2019, (Doc. 1), and a First Amended Complaint (FAC) on March 5, 2020, (Doc. 11). Plaintiff alleges that Defendants, acting individually and together, violated his First Amendment right to free speech. He alleges that he owns and publishes the Cochise County Record, which reports on local courts, local policing and local politics. He alleges that Defendants have precluded his access to sources he needs for his journalistic endeavors and have maliciously prosecuted him by bringing a civil action against him in retaliation for his work. He alleges that the Cochise County Board of Supervisors, individually and as a government body, have knowingly looked the other way and failed to train and supervise county staff on the First Amendment right to public records. Plaintiff's FAC alleges a claim, pursuant to 42 U.S.C. § 1983, invoking this Court's federal question jurisdiction, pursuant to 28 U.S.C. § 1331, and includes pendant state law claims of intentional infliction of emotional and financial distress.

Section 1983 does not contain its own statute of limitations, so the federal courts borrow the limitation period for § 1983 claims from the statute of limitations for personal injury claims in the forum state. See Wilson v. Garcia, 471 U.S. 261, 279–80, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Arizona, the two-year statute of limitations for personal injury claims applies to § 1983 claims. Marks v. Parra, 785 F.2d 1419, 1420 (9th Cir. 1986) (citing A.R.S. § 12–542 ). The federal courts "borrow no more than necessary," West v. Conrail, 481 U.S. 35, 39–40, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987), therefore, federal, not state, law determines when a civil rights claim accrues. Elliott v. City of Union City, 25 F.3d 800, 801–802 (9th Cir. 1994). Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996).

Here, the alleged constitutional violations occurred when on September 25, 2017, Defendant Lieutenant Monge, Bisbee Jail Operations Manager for the Cochise County Sheriff's Department, wrote a letter suspending Plaintiff's access to the Securus inmate video visitation system for visits with inmates at the jail in Bisbee. Thereafter, the County Defendants have acted in concert to block his access to inmate video face-to-face visitations. Next, Plaintiff alleges that on December 8, 2017, the Defendants McIntyre, Zucco, Ransom and Borquez acted in concert to file a civil action against him for allegedly violating criminal and civil statutes that protect grand jury proceedings. Defendants McIntyre, Zucco, and Ransom are Deputy County Attorneys, and Borquez was the investigating sheriff. The civil action went against Defendants, with the denial of a preliminary injunction in March of 2018, which was affirmed by the Arizona Court of Appeals on June 13, 2019. The Defendants, thereafter, dismissed the civil action. The Court assumes there are no statute of limitation issues for the purpose of determining the motions to dismiss.

Finally, the Plaintiff alleges that in December 2017 and January through February 2018, State Defendant Suarez-Dunlap, Clerk of the Superior Court for Cochise County,1 and in 2019, Defendant Hunley, who replaced Suarez-Dunlap, failed to establish written procedures and training for Clerk's Office staff for public access to court case files, including failure to maintain a fully functional single computer available in the clerk's office for public access to court records. The Court focuses on factual allegations spaning 2018 and 2019.

The Plaintiff also alleges that the Cochise County Board of Supervisors, individually and acting as the Board, has failed to train and supervise these elected officials (the Sheriff, the County Attorney, the Clerk of the Superior Court) and willfully allowed county operations without establishing First Amendment principles and procedures regarding access to public information. (FAC (Doc. 11) at ¶¶14, 27; Count X ¶ 49.)

Both the county and state Defendants have filed Motions to Dismiss (Docs. 32, 45). Plaintiff separately responded to the Motions to Dismiss and, in responding to the State's Motion to Dismiss, he alternatively moved to amend the FAC if the Court acts to dismiss it. The Court treats the Motion for Leave to Amend as applying to the FAC in its entirety.

Motions to Dismiss

The Court grants the County DefendantsMotion to Dismiss the Plaintiff's claims against Deputy Attorneys McIntyre, Zucco and Ransom as they are barred by the doctrine of prosecutorial immunity. The Plaintiff's claims against the Cochise County Defendants are barred by qualified immunity. Plaintiff fails to state a claim against the County Board of Supervisors, individually or collectively, under Monell v. New York City Dept. of Soc. Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court grants the State DefendantsMotion to Dismiss because actions against the State are barred by the 11th Amendment and claims against the State Defendants, individually, are barred by qualified immunity. All state law claims are barred by Plaintiff's failure to file a Notice of Claim as required under A.R.S. § 12-821.01(A).

Summarized by the Arizona Court of Appeals: "David Morgan is a Cochise County resident who operates a website and social media discussion group dedicated to electronically posting his views and articles about criminal justice topics. In September 2017, Morgan obtained an unredacted copy of the grand jury transcript for a murder case the County was prosecuting against Roger Wilson. Morgan received the transcript, which contained the full names of the grand jurors, and a grand jury exhibit consisting of a photograph of the deceased victim in a hospital bed, from Wilson's defense attorney after Morgan offered to deliver the materials to Wilson at the jail where he was incarcerated awaiting trial. He also obtained a sealed motion for remand after it had been filed with the superior court." ... The County filed a complaint against Morgan seeking a declaration that, by posting the transcript and motion and maintaining them online, Morgan had violated a criminal statute, A.R.S. § 13-2812, two civil statutes, A.R.S. § 21-312 and § 39-121.04, and the trial court's order sealing the motion. "The complaint also sought an order permanently enjoining Morgan from maintaining the materials online or otherwise publicly disseminating them." (MD, Ex. B (Doc. 32-2) at 2: Cochise County Attorney v. Morgan , 2019 WL 2474727 *1 (Ariz. App. June 13, 2019) ).

Summarized by the Plaintiff: "In late 2017, Plaintiff published a story about claimed bungling of Cochise County grand jury proceedings in a murder case which could result in quashed indictments, delays and new proceedings. To explain the errors and the arguments by the defense attorney, Plaintiff published a link to the complete official transcript of the subject grand jury proceedings." (Response (Doc. 38) at 15.) Defendant Zucco allegedly "bungled" the grand jury presentation, id. , and allegedly participated in the investigation, id. , which in the end lead to the County Attorney's office, Deputy Attorney Ransom, initiating a civil action seeking an injunction to stop the continued publication of the grand jury transcript and juror names. Id.

The Plaintiff depends on the civil nature of the injunctive action filed against him by the Defendants to argue that prosecutorial immunity does not apply. But prosecutorial immunity extends to civil actions that bear a connection to criminal activity, or are functionally analogous to criminal proceedings. See (MD (Doc. 32) at 8 (citing Butz v. Economou , 438 U.S. 478, 515-16, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) ); Torres v. Goddard , 793 F.3d 1046, 1052 (9th Cir. 2015) ; Red Zone 12 LLC v. City of Columbus , 758 Fed. Appx. 508 (6th Cir. 2019) ; Mendenhall v. Goldsmith , 59 F.3d 685, 691 (7th Cir. 1995) ). Arizona law, likewise, provides absolute immunity for prosecutorial functions. (MD (Doc. 32) at 8 (citing A.R.S. § 12-820.01(A)(1) & (5) ); State v. Superior Court, 186 Ariz. 294, 921 P.2d 697, 700 (Ariz. App. 1996) ; Mulligan v. Grace , 136 Ariz. 483, 666 P.2d 1092, 1094 (Ariz. App. 1983) ; Challenge, Inc. v. Arizona, 138 Ariz. 200, 673 P.2d 944, 948 (Ariz. App. 1983) ).

The Defendants’ assertion of absolute immunity by a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), requires the Court to accept as true "[a]ll allegations of material fact" alleged in the FAC (Doc. 11) and construe them "in the light most favorable to the nonmoving party." Patterson v. Van Arsdel , 883 F.3d 826, 829 (9th Cir. 2018) (quoting Cousins v. Lockyer , 568 F.3d 1063, 1067 (9th Cir. 2009) ); Iolab Corp. v. Seaboard Sur. Co. , 15 F.3d 1500, 1504 (9th Cir. 1994). The Court does not consider the merits of the Plaintiff's allegations of constitutional misconduct, but simply determines whether it appears beyond doubt that the Plaintiff can prove no set of facts in support of his constitutional claims which would entitle him to relief. Lewis v. Tel. Employees Credit Union , 87...

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