West v. Mesa

• Decision Date: 29 April 2015
• Docket Number: No. CV-12-00657-PHX-DGC,CV-12-00657-PHX-DGC
• Parties: Carl West, Plaintiff, v. Mesa, City of, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Carl West, Plaintiff, v. Mesa, City of, et al., Defendants.

No. CV-12-00657-PHX-DGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

April 29, 2015

ORDER

Defendant City of Mesa has filed a motion to dismiss (Doc. 34) and Defendants United States, Brian Truchon, and Jeffery Jacobs have filed a joint motion to dismiss (Doc. 36). The motions are fully briefed. The Court will grant Mesa's motion and grant in part and deny in part the motion of the United States, Truchon, and Jacobs.¹

I. Background.

In February 2003, Plaintiff Carl West was tried and convicted in state court of conspiracy to commit armed robbery. Doc. 27-2, ¶ 25. The lead investigator was former FBI Special Agent Joe Gordwin. Id., ¶14. Gordwin worked with Jeffery Jacobs, a Mesa Detective, on the FBI's Violent Street Gangs Task Force, a joint operation between the FBI and the Mesa Police Department. Id. Supervisory Special Agent Brian Truchon was Gordwin's supervisor at the time. Id., ¶ 6.

While West was in prison, an investigation revealed misconduct by Gordwin. Id., ¶¶ 18, 28. On May 28, 2008, Gordwin was indicted for several crimes including wire fraud and witness tampering. Id., ¶ 27. Thereafter, West filed a motion for postconviction relief, which was granted by the state court. Id., ¶ 30. As a result, West was released from prison on February 11, 2011. Id. On August 22, 2013, all charges against him were dropped. Id., ¶ 32.

On February 6, 2012, Plaintiff filed an action in state court alleging multiple violations relating to his investigation and trial. Doc. 1-2. The case was removed to this Court and assigned to Judge John Sedwick. Doc. 1. In July 2012, a motion to dismiss by Defendants Mesa and Jacobs was granted. Doc. 13. The ruling was appealed to the Ninth Circuit, which affirmed in part and vacated in part. Doc. 18.

On February 10, 2014, Plaintiff filed a second action in this Court (CV-14-254) that was eventually assigned to the undersigned judge. Given the overlap between the new case and Judge Sedwick's case, the two matters were consolidated as the present case. Plaintiff filed a motion for leave to file a Consolidated Complaint alleging nine counts against the United States, Gordwin, Truchon, Mesa, Jacobs, Duane Van Norman, and Kelvin Smith. Doc. 27. The Court granted the motion for counts one through five, but denied leave to assert counts six through nine. Doc. 29 at 2. Thus, only the following counts remain: (1) violation of 42 U.S.C. § 1983 - abuse of process, (2) violation of constitutional rights pursuant to Bivens, (3) violation of 42 U.S.C. § 1983 - malicious prosecution, (4) state law malicious prosecution, and (5) 28 U.S.C. § 1985 conspiracy. Doc. 27-2. Defendants move to dismiss all claims.²

II. Legal Standards.

When analyzing a complaint for failure to state a claim to relief under Rule 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9thCir. 2009). Legal conclusions couched as factual allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the complaint must plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

Plaintiff brings § 1983 claims against all Defendants. To prevail on a claim under § 1983, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges, or immunities and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005). A plaintiff must also allege that he suffered a specific injury as a result of the conduct of a particular defendant, and must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

III. Analysis.

A. Scope Certification.

On September 30, 2014, the United States submitted a Certification of Scope of Employment ("Scope Certification") under 28 U.S.C. § 2679(d)(1) certifying that Truchon and Jacobs were acting within the scope of their employment as "deemed" employees of the FBI. Doc. 34-3 at 2. The Scope Certification has the following effect:

When a federal employee is sued for a wrongful or negligent act, the Federal Employees Liability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act) empowers the Attorney General to certify that the employee "was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . ."

Upon certification, the employee is dismissed from the action and the United States is substituted as defendant.

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995) (citing 28 U.S.C. § 2679(d)(1)). The action then proceeds under the Federal Tort Claims Act ("FTCA"). Id. "While the certification relieves the employee of responsibility, plaintiffs will confront instead a financially reliable defendant." Id. at 422. Importantly, a Scope Certification does not permit substitution for constitutional claims brought against federal officers. 28 U.S.C. § 2679(b)(2)(A); see also Williams v. Brooks, 945 F.2d 1322, 1325 n.3 (5th Cir. 1991) (noting that the FTCA, with the exception of constitutional claims, is the exclusive remedy for claims brought against federal officers acting in their office).

"Certification by the Attorney General is prima facie evidence that a federal employee was acting in the scope of [his] employment at the time of the incident and is conclusive unless challenged." Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995). "[T]he Attorney General's certification is 'the first, but not the final word' on whether the federal officer is immune from suit and correlatively, whether the United States is properly substituted as defendant." Osborn v. Haley, 549 U.S. 225, 246 (2007) (quoting Lamagno, 515 U.S. at 432). The party challenging a certification "bears the burden of presenting evidence and disproving the Attorney General's decision to grant or deny scope of employment certification by a preponderance of the evidence." Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993). Whether an employee was acting with the scope of his or her office is analyzed under respondeat superior principles "of the state in which the alleged tort occurred[.]" Id.

1. Truchon.

Plaintiff does not challenge the Scope Certification regarding FBI Supervisory Special Agent Truchon. It is thus undisputed that Truchon was acting within the scope of his employment at all relevant times. As a result, for Plaintiff's state common-law claims against Truchon, the United States will be substituted as the party defendant and the FTCA will provide Plaintiff's exclusive remedy. See Wilson v. Drake, 87 F.3d 1073,1076 (9th Cir. 1996) (noting that "[t]he [Westfall Act], which amended the FTCA, provides that '[t]he remedy against the United States' under the FTCA 'is exclusive of any other civil action or proceeding for monetary damages'").

2. Jacobs.

With respect to Jacobs, Plaintiff argues the Scope Certification is invalid because Jacobs was not deputized as a federal employee under any statute, the task force was a joint operation between the FBI and Mesa, and the arrest was made by Jacobs in his capacity as a Mesa Detective. Doc. 43 at 2. Plaintiff asserts that participating in a joint task force does not convert a municipal officer into a federal employee.

"In determining whether a defendant is a federal employee, [courts] apply federal law." Billings, 57 F.3d at 800 (citing Brandes v. United States, 783 F.2d 895, 896 (9th Cir. 1986)). The FTCA defines "employee of the government" as "officers or employees of any federal agency . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently, in the service of the United States, whether with or without compensation." 28 U.S.C. § 2671 (emphasis added). State and local government employees may be "assigned to a Federal agency[.]" 5 U.S.C. § 3374(a). "During the period of assignment, a State or local government employee on detail to a Federal agency . . . is deemed an employee of the agency for the purpose of . . . the Federal Tort Claims Act and any other Federal tort liability statute[.]" Id. § 3374(c).

The Court finds that Plaintiff has failed to rebut the Scope Certification, which serves as prima facie evidence that Jacobs was acting within the scope of his employment as a federal employee. See Billings, 57 F.3d at 800. "Courts have consistently treated local law enforcement agents deputized as federal agents and acting as part of a federal task force as federal agents." Colorado v. Nord, 377 F. Supp. 2d 945, 949 (D. Colo. 2005). Although there is no indication that Jacobs was officially deputized as an employee of the FBI under any statute, such a finding is not necessary as § 3374 requires only that the State or local employee be "assigned to" or "on detail to" a federal agency. See Farag v. United States, 587 F. Supp. 2d 436, 471 (E.D.N.Y. 2008) (finding that citydetective was acting under federal law because he was working on the FBI's Joint Terrorism Task Force and referring to the language in 5 U.S.C. § 3374(c)(2) for support). Plaintiff does not...