Warden v. Magnus
| Decision Date | 30 March 2020 |
| Docket Number | No. CV-18-00096-TUC-LCK,CV-18-00096-TUC-LCK |
| Parties | Roy Warden, Plaintiff, v. Chris Magnus, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court are Defendants' two motions to dismiss (Docs. 63, 74) and two motions for judicial notice (Docs. 64, 71). The motions to dismiss are fully briefed. (Docs. 69, 72, 80, 81.) Plaintiff did not file a response to the requests for judicial notice. After oral argument on March 5, 2020, the Court took the motions under advisement. (Doc. 84.) Defendants filed a supplemental brief after argument, to which Plaintiff responded. (Docs. 85, 87.) Plaintiff also filed a post-argument motion to voluntarily dismiss Claims 1(a) and 2(a) of his Second Amended Complaint.
Federal Rule of Civil Procedure 12(b)(6) prohibits motions to dismiss after a defendant files an answer. Because Defendants filed their motions after their Answer, the Court will treat them as motions for judgment on the pleadings. See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) ().
Plaintiff filed a complaint on February 22, 2018, which he has amended twice. The operative pleading is the Second Amended Complaint, filed on April 26, 2019, which is based on 42 U.S.C. § 1983. (Doc. 51.) Plaintiff names as defendants the City of Tucson, Tucson Chief of Police Chris Magnus, and Tucson Police Officers Justin Doggett, Ryan Sachs, and Rob Brandt. (Id.) Plaintiff alleges he is an activist that has investigated malfeasance by Tucson officials for the past twelve years. Between 2004 and 2008, he alleges Tucson police officers stood by and refused to protect public safety when Plaintiff and his associates were assaulted at public rallies. Plaintiff alleges that, on February 25, 2016, he attended a meeting with U.S. Marshal Richard Tracy, an assistant U.S. Attorney, and Defendants Brandt and Doggett, who warned him that "'Red-Necked Militia Thugs' would attend and disrupt Plaintiff's planned 'Justice for LaVoy' Rally on March 4, 2016, and potentially inflict deadly force upon Plaintiff." (Doc. 51 ¶ 31.) At that March 4 rally, Plaintiff alleges that Defendants Brandt and Sachs refused to intervene when he was assaulted by Cody Whitaker and forced to retreat into the street. He alleges Defendants acted pursuant to City of Tucson policy to deter the speech of people who oppose city policy.
After the motions to dismiss were briefed but before argument, the Court granted Plaintiff's request for dismissal of Claims 3 and 4. (Docs. 79, 83.) Three claims remain in the Second Amended Complaint. In Claim 1, Plaintiff alleges his First Amendment rights were violated by (a) Defendants Doggett and Brandt's actions at the February 2016 meeting, and (b) Defendants Sachs and Brandt's actions at the March 2016 rally. In Claim 2, Plaintiff alleges he was retaliated against in violation of the First Amendment, for his ten-year opposition to the City of Tucson's open border policies, by (a) Defendants Doggett and Brandt's actions at the February 2016 meeting, and (b) Defendants Sachs and Brandt's actions at the March 2016 rally. In Claim 3, Plaintiffalleges Defendant Magnus violated his rights by failing to train or supervise his officers. Plaintiff did not name the City of Tucson as a defendant on any specific claim but alleged the individual Defendants acted in accord with City of Tucson policy. Plaintiff seeks declaratory relief, compensatory damages, and punitive damages.
A motion for judgment on the pleadings is functionally equivalent to a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted; therefore, the Court applies the motion to dismiss standard. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)) (internal quotation marks omitted). Dismissal is only appropriate if the complaint's factual allegations, together with all reasonable inferences drawn in the plaintiff's favor, fail to state a plausible claim for relief. Id.; see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (). While a complaint need not plead "detailed factual allegations," the factual allegations it does include "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 545. The plausibility standard does not amount to a probability requirement, however, it demands "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. A mere formulaic recitation of the elements of a cause of action is not sufficient to establish a claim, and legal conclusions are not entitled to an assumption of truth. Id. at 679.
Defendants filed two motions seeking dismissal of Plaintiff's three remaining claims as to all Defendants, Claims 1, 2, and 5. In the first motion, Defendants argue that Plaintiff is barred by issue preclusion from litigating whether Whitaker assaulted him in2016. In the second motion, Defendants argue Claims 1, 2, and 5 fail to state a constitutional claim.
In response to Defendants' post-argument supplemental brief (Doc. 85), Plaintiff moved to dismiss subsection (a) of Claims 1 and 2 (Doc. 88). These First Amendment claims are based on the actions of Defendants Doggett and Brandt at the February 2016 meeting. (Doc. 51 ¶¶ 40(a), 43(a).) As stated by Plaintiff, he is moving to dismiss "all counts arising out of Defendants' conduct on February 25, 2016." (Doc. 87 at 2.)
Plaintiff's motion did not indicate whether he was requesting dismissal with or without prejudice. Rule 41 provides that, after defendants have answered, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. P. 41(a). Such a dismissal is without prejudice, unless the Court states otherwise. Id. The Court finds that dismissal with prejudice is the proper outcome at this stage of the case. One of Defendants' fully-briefed-and-argued pending motions seeks dismissal of Claims 1(a) and 2(a) on the merits, which would be with prejudice. (Doc. 74.) In requesting dismissal, Plaintiff stated that his request was filed "after carefully considering the arguments" in Defendants' supplemental brief. (Doc. 88.) Thus, Plaintiff's request for dismissal is based on his implicit acknowledgment that Defendants' motion has merit. See Thompson v. Janssen Pharm., Inc., 756 F. App'x 740, 741 (9th Cir. 2019) () (citing Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988)).
In February, when the Court granted Plaintiff's request to dismiss Claims 3 and 4, it did so with prejudice based on a similar analysis. (Doc. 83.) Plaintiff did not object to that decision and was on notice of it when he filed the current motion to dismiss these additional claims. For these reasons, the Court will grant dismissal of Claims 1(a) and 2(a) with prejudice. See Hargis v. Foster, 312 F.3d 404, 412 (9th Cir. 2002) (). Because these are the only claims on which Defendant Doggett is named, he also will be dismissed with prejudice.
Plaintiff alleges that Defendants Sachs and Brandt violated his First Amendment right to free speech by failing to intervene at the March 2016 rally, when Cody Whitaker assaulted Plaintiff. In their first motion to dismiss, Defendants contend that Plaintiff previously litigated through final judgment in state court whether Cody Whitaker assaulted him in 2016. (Doc. 63.) Because the state court found no assault, Defendants assert that issue preclusion bars Plaintiff from asserting in this Court that Whitaker assaulted him. (Id.) Plaintiff argues that issue preclusion is not applicable because: Defendants were not a party to or in privity with a party to the prior proceeding, he did not litigate his First Amendment claim in state court, he was denied a trial by jury in the prior proceeding, and the state court judgment was not final because he appealed the ruling.1 (Doc. 69.)
In support of their motion, Defendants request that the Court take judicial notice of state-court filings from Plaintiff's case against Whitaker. Plaintiff did not object to Defendants' requests. In fact, Plaintiff attached several state-court documents to his motion response. (See Doc. 69.) The Court may take judicial notice of matters of public record. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) () (citing Fed. R. Evid. 201(b)). Specifically, the Court properly considers Arizona state court records in deciding a matter of issue preclusion arising from a state court proceeding. See Holder v. Holder, 305 F.3d854 (9th Cir. 2002); U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (...
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