2:22-cv-01435
D. Ariz.Jan 11, 20231 WO
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
Scott T homas Bradley, ) No. CV-22-01435-PHX-SPL
)
9
)
10 Plaintiff, ) ORDER
vs. )
)
11
)
Lori Bradley, et al., )
12
)
13 Defendants. )
)
14 )
15 Before the Court are three Motions to Dismiss, filed by four of the eight named
16 Defendants in this matter:
17 1. Phoenix Police Department’s and Jasquin Gibson’s Motion
to Dismiss for Failure to State a Claim (Doc. 31)
18
2. Tracey Westerhausen’s Motion to Dismiss for Lack of
19 Jurisdiction (Doc. 37)
20 3. Maricopa County’s Motion to Dismiss for Failure to State a
Claim (Doc. 47)
21
22 All three Motions have been fully briefed and are ready for review.1 For the reasons that
23 follow, the Court will grant the Motions.
24
25 1 See Doc. 41 (Plaintiff’s Response to Defendants Phoenix Police Department’s and
Jasquin Gibson’s Motion); Doc. 48 (Defendants Phoenix Police Department’s and Jasquin
26
Gibson’s Reply to Plaintiff’s Response); Doc. 43 (Plaintiff’s Response to Defendant
27 Westerhausen’s Motion); Doc. 50 (Defendant Westerhausen’s Reply to Plaintiff’s
Response); Doc. 58 (Plaintiff’s Response to Defendant Maricopa County’s Motion); and
28
Doc. 60 (Defendant Maricopa County’s Reply to Plaintiff’s Response).
1 I. BACKGROUND
2 On August 24, 2022, Plaintiff Scott Thomas Bradley (“Plaintiff”) filed this action
3 against eight named Defendants: Lori Bradley, Tracey Westerhausen, Jasquin Gibson,
4 State of Arizona, County of Maricopa, Superior Court of Arizona, Arizona Department of
5 Economic Security, and Phoenix Police Department (“PHXPD”). (Doc. 1). According to
6 the Complaint, Plaintiff and Defendant Bradley were married on September 8, 2014. (Id.
7 at 11). In 2016, the couple’s daughter, J.B., was born. (Id.). At some point after that,
8 Plaintiff and Defendant Bradley divorced; after the dissolution of their marriage, they
9 “entered into a Parenting Consent Agreement of shared/joint custody and legal decision- 10 making to both Father and Mother.” (Id.). Although it appears that Plaintiff and Defendant
11 Bradley may have complied with the custody arrangement for a time, Plaintiff alleges that
12 at some point they “mutually agreed NOT to follow the original parenting time
13 arrangement in the original consent agreement” and agreed to share custody of their
14 daughter according to their own terms. (Id. at 12). On January 31, 2022, Defendant Bradley
15 apparently filed a “Petition to Modify Child Support” with the Maricopa County Superior
16 Court, requesting an increase in her monthly child support payment from Plaintiff. (Id. at
17 12–13). Defendant Bradley’s Petition appears to be the start of the child custody and child
18 support dispute that is at the center of this action.
19 Plaintiff alleges that the child support arrangement he has with Defendant Bradley
20 is a “forced obligation and extortion of [his] labor wages” in violation of his federal and
21 state constitutional rights. (Id. at 15). Plaintiff seeks “injunctive relief from the wrongdoers’
22 ongoing attempts to subject [him] to an unconscionable contract of adhesion” and requests
23 that Defendant Bradley be enjoined from “pursu[ing] fraud for her own fiscal gain.” (Id.).
24 Plaintiff also requests “immediate restoration of my property with compensatory
25 damages.” (Id.). As to their custody dispute, Plaintiff alleges that Defendant Bradley has
26 “willfully, intentionally engaged in a deliberate plan to keep [their] daughter from her
27 lawful and equitable time with [Plaintiff], including emotional and psychological abuse on
28 [their] daughter and [on Plaintiff] by employing various methods and tactics to do so.” (Id.
1 at 21). Specifically, Plaintiff alleges that Defendant Bradley has kept Plaintiff away from
2 his daughter despite his numerous attempts to see her. (Id. at 21–25). Such attempts have
3 included direct contact with Defendant Bradley, the filing of petitions and other requests
4 with the Superior Court, and the filing of police reports. (Id. at 21–26). Plaintiff alleges
5 that Defendants have taken Defendant Bradley’s side and conspired to keep Plaintiff from
6 his daughter and to enforce the child support contract against Plaintiff. (Id.).
7 Near the end of the Complaint, Plaintiff states “[i]n addition to the torts and
8 trespasses claimed herein, the crimes that have been and are being committed against me
9 by [Defendants] are too many to list, including but not limited to”: fraud; constructive/legal
10 fraud; actionable fraud/material fraud/fraud in the inducement; deceit/fraudulent
11 acts/fraudulent misrepresentation/fraudulent concealment/equitable fraud/fraud by
12 deception; conspiracy against rights (18 USC 241) and deprivation of rights under color of
13 law (18 USC 242); racketeering; conspiracy; kidnapping; duress and coercion;
14 material/fraudulent/negligent misrepresentation; corruption/judicial corruption/breach of
15 fiduciary trust; and human rights denied. (Id. at 32–33). At bottom, Plaintiff requests “the
16 immediate return and restoration of [his] property with sole custody and legal decision- 17 making be ordered to me to administer equitable parenting time for my daughter with both
18 her father and [Defendant] Bradley, with just compensation for the damages caused by
19 Tracey Westerhausen, [Defendant] Bradley, Jasquin Gibson, and the STATE OF
20 ARIZONA, et[ ]al.” (Id. at 33).
21 II. LEGAL STANDARD
22 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient
23 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
24 Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
25 544, 570 (2007)). A court may dismiss a complaint for failure to state a claim under Rule
26 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts
27 alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 ,
28 699 (9th Cir. 1990). A claim is facially plausible when it contains “factual content that
1 allows the court to draw the reasonable inference” that the moving party is liable. Ashcroft,
2 556 U.S. at 678 . Factual allegations in the complaint should be assumed true, and a court
3 should then “determine whether they plausibly give rise to an entitlement to relief.” Id. at
4 679. Facts should be viewed “in the light most favorable to the non-moving party.”
5 Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017 , 1019 (9th Cir. 2013).
6 III. DISCUSSION
7 The Court will address each of the three pending Motions to Dismiss in turn.
8 A. Defendants PHXPD’s and Jasquin Gibson’s Motion to Dismiss
9 Plaintiff alleges that Officer Jasquin Gibson (“Officer Gibson”), a PHXPD
10 detective, “has committed misprision of felony, having personal knowledge of felony
11 crimes being committed against [him], and failing to immediately make known or report
12 them, failing to prevent deprivation of [his] sacred liberty, property and parenting rights as
13 a father, instead concealing them under color of law,” in violation of A.R.S. § 13- 14 1302(C)(2). (Doc. 1 at 4). Plaintiff alleges that Officer Gibson breached his duties as an
15 officer “by covering up crimes against [Plaintiff] under color of law.” (Id. at 9).
16 Specifically, Plaintiff alleges that he reported the ongoing interference with his parenting
17 time to PHXPD, and that his reports were assigned to Officer Gibson “for investigation.”
18 (Id. at 25). Plaintiff further alleges that, on August 12, 2022, Officer Gibson and Defendant
19 Bradley “had a phone conversation” during which Defendant Bradley “used
20 unsubstantiated lies, fraud, hearsay, to convince [Officer] Gibson her crimes against
21 [Plaintiff] were justified, openly admitting having no evidence of her ‘allegations.’” (Id. at
22 25–26). Specifically, Plaintiff alleges that Defendant Bradley told Officer Gibson the
23 following:
24 (i) that Plaintiff “filed to be a sovereign citizen”;
25 (ii) that she and Plaintiff’s daughter “have gone through
‘therapy sessions’ to figure out why [their] daughter is ‘fearful’
26 and does not want to be with [Plaintiff]”;
27 (iii) that Plaintiff “went to pick up [their] daughter to give
[Plaintiff] a hug and [their] daughter told [Plaintiff] ‘not to
28 touch her’”;
(iv) that “there is a ‘history’ in [Plaintiff’s] ‘family of origin of
1 molestation and a obsession of sex’”;
2 (v) that she “admitted she has no proof of anything regarding
molestation and [Plaintiff] and only her suspicions and she also
3 admitted [their] daughter made no disclosure to her or her
therapist”;
4
(vi) that their daughter “called [Defendant Bradley] and asked
5 to be picked up early from [Plaintiff’s] house ‘because she had
been locked in her bedroom and not allowed to go down to eat
6
until nine o’clock at night’”;
7
(vii) that her “parental interference was ‘not about the child
8 support because if that was the case she would not have
allowed [Plaintiff] for the years prior to spend time with her
9 daughter’”; and
10 (viii) that Plaintiff has “been eluding service.”
11
(Id. at 26). Plaintiff alleges that the incident report of the phone call states: “[Defendant
12
Bradley] understands that she is not following the parenting plan and also understands there
13
is a criminal aspect of that but feels as if she is doing the right thing because she does have
14
a fear for her daughter’s safety at this time if she is with [Plaintiff].” (Id.). Plaintiff alleges
15
that Officer Gibson “concealed and closed out the investigation of the crimes against me,
16
citing color of law statute of the Arizona Revised Statutes, committing misprision of
17
felony, and factually in conspiracy with [Defendant] Bradley, depriving me of my sacred
18 and constitutionally protected rights (1st, 4th, 5th, 7th, 9th, 10th Amendments) without Due
19
Process and Trial by Jury.” (Id. at 27). Plaintiff alleges that PHXPD has “a pattern and
20
practice of operating under the color of law, failing to train their employees and officers
21
about the Supreme Law of the Land and natural, constitutionally protected rights.” (Id.).
22
Defendants PHXPD and Officer Gibson move for dismissal of Plaintiff’s claims
23
against them “because (1) the PHXPD is non-jural entity that cannot be sued; (2) Plaintiff
24
fails to state a claim upon which relief can be granted; (3) qualified immunity applies;
25
(4) the PHXPD is entitled to immunity under A.R.S. § 12-820.05; and (5) punitive damages
26
cannot be awarded against the PHXPD.” (Doc. 31 at 2). The Court agrees that PHXPD is
27
not a jural entity that can be sued, and that Plaintiff has not sufficiently stated any claims
28
1 against Officer Gibson. Therefore, dismissal is appropriate, and the Court need not address
2 Defendants’ other arguments.
3 As to PHXPD, the Court finds that dismissal is appropriate because, as this Court
4 has previously held, PHXPD is merely an agency of the City of Phoenix and cannot be
5 sued. See Gotbaum v. City of Phoenix, 617 F. Supp. 2d 878 , 885 (D. Ariz. 2008) (noting
6 that “[n]either the Arizona legislature nor the City [of Phoenix] has stated that the Police
7 Department is a separate jural entity” and holding that “[c]onsistent with its previous
8 decision in Wilson . . . the Phoenix Police Department is a subpart of the City of Phoenix,
9 not a separate entity for purposes of suit”); see also Watson-Nance v. City of Phoenix, No.
10 CV-08-1129-PHX-ROS, 2009 WL 792497 , at *9 (D. Ariz. Mar. 24, 2009) (adopting
11 Gotbaum’s analysis and finding that “Phoenix Police Department is a municipal agency or
12 an instrumentality, not a political subdivision” and thus it is “an unauthorized Defendant
13 under federal and state law and must be dismissed”); Machowicz v. Maricopa Cnty.,
14 No. CV-21-00316-PHX-JJT, 2021 WL 4319206 , at *3 (D. Ariz. Sept. 23, 2021) (“[T]he
15 Court concludes that the Phoenix Police Department is a non-jural entity and will dismiss
16 the claims against it.”).
17 As to Officer Gibson, Plaintiff alleges that he committed misprision of felony by
18 having knowledge of alleged felony crimes against Plaintiff and by failing to make those
19 felony crimes known or report them to Plaintiff or to some judge or other person in civil or
20 military authority. (Doc. 1 at 4). Plaintiff alleges that Officer Gibson failed to prevent the
21 deprivation of Plaintiff’s “liberty, property and parenting rights . . . [and] instead
22 conceal[ed] them.” (Id.). Plaintiff also alleges that Officer Gibson was involved in a
23 conspiracy—with the other Defendants—to deprive Plaintiff of his constitutional rights
24 under the first, fourth, fifth, seventh, ninth, and tenth amendments without due process and
25 trial by jury. (Id. at 27). Although the Complaint is not entirely clear, Plaintiff may also
26 assert claims against Officer Gibson for intentional infliction of emotional distress and
27 breach of fiduciary duty.
28 The Court finds that Plaintiff has not plausibly stated any of the above claims against
1 Officer Gibson. The crime of misprision of felony is provided under 18 U.S.C. § 4, which
2 reads: “Whoever, having knowledge of the actual commission of a felony cognizable by a
3 court of the United States, conceals and does not as soon as possible make known the same
4 to some judge or other person in civil or military authority under the United States, shall
5 be fined not more than $500 or imprisoned not more than three years, or both.” Critically,
6 § 4 does not provide any private right of action and Plaintiff fails to provide any authority
7 to the contrary. See Tuck v. McMullen, No. 19-cv-1505-WQH-RBB, 2020 WL 1849673 ,
8 at *5–*6 (S.D. Cal. Apr. 13, 2020) (dismissing claim for misprision of felony after finding
9 no private right of action); Apollo v. Peake, 306 F. App’x 584 , 586–87 (Fed. Cir. 2009)
10 (“We are aware of no authority for the proposition that an alleged violation of the federal
11 misprision of felony statute gives rise to a private right of action.”). Thus, Plaintiff’s claim
12 for misprision of felony against Officer Gibson must be dismissed.
13 To the extent Plaintiff may allege that Officer Gibson herself deprived Plaintiff of
14 his constitutional rights, the Court finds that qualified immunity applies to preclude such a
15 claim. “The doctrine of qualified immunity protects government officials ‘from liability
16 for civil damages insofar as their conduct does not violate clearly established statutory or
17 constitutional rights of which a reasonable person would have known.’” Est. of Lopez v.
18 Gelhaus, 871 F.3d 998 , 1005 (9th Cir. 2017) (quoting Pearson v. Callahan, 555 U.S. 223 ,
19 231 (2009)). “Qualified immunity gives government officials breathing room to make
20 reasonable but mistaken judgments about open legal questions. When properly applied, it
21 protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft
22 v. al-Kidd, 563 U.S. 731 , 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335 , 341 (1986)).
23 In determining whether an officer is entitled to qualified immunity, the Court must consider
24 “(1) whether there has been a violation of a constitutional right, and (2) whether that right
25 was clearly established at the time of the officer's alleged misconduct.” Lal v. California,
26 746 F.3d 1112 , 1116 (9th Cir. 2014) (citing Pearson, 555 U.S. at 231 ). The Court may
27 exercise its discretion “in deciding which of the two prongs of the qualified immunity
28 analysis should be addressed first in light of the circumstances in the particular case at
1 hand.” Pearson, 555 U.S. at 236 . Once a qualified-immunity defense is raised, the plaintiff
2 bears the burden of proving the violation of a constitutional right and that the right was
3 clearly established. LSO, Ltd. v. Stroh, 205 F.3d 1146 , 1157 (9th Cir. 2000).
4 Here, qualified immunity applies because Plaintiff has failed to explicitly allege
5 facts that, taken as true, show that Officer Gibson violated a constitutional right of Plaintiff.
6 The only factual allegations pertaining to Officer Gibson relate to his August 12, 2022
7 phone conversation with Defendant Bradley during which Plaintiff alleges that Defendant
8 Bradley stated a series of “lies, fraud, [and] hearsay” to justify her own crimes against
9 Plaintiff. (Id. at 25–26). Plaintiff alleges that Officer Gibson heard these lies and then stated
10 in the incident report that “[Defendant Bradley] understands that she is not following the
11 parenting plan and also understands there is a criminal aspect of that but feels as if she is
12 doing the right thing because she does have a fear for her daughter’s safety at this time if
13 she is with [Plaintiff].” (Id.). It is entirely unclear to the Court how Officer Gibson violated
14 any of Plaintiff’s constitutional rights by conducting and logging the phone conversation
15 in the manner Plaintiff alleges. Even if these facts did amount to a constitutional violation,
16 Plaintiff’s Response fails to provide any caselaw or other legal authority that would
17 indicate that this right was “clearly established” at the time Officer Gibson conducted the
18 phone call. In other words, the Court cannot find that a reasonable officer in Officer
19 Gibson’s place would have known that it was a violation of Plaintiff’s constitutional rights
20 to conduct the phone conversation and then record it in the manner that Officer Gibson did.
21 In the Response, Plaintiff argues that “[s]ince the Superior Law of God has been
22 clearly established since the time of Moses is established as the foundation of all laws of
23 this country and nation state, including our respective Constitutions. The [first, fourth, fifth,
24 seventh, eighth, ninth, and tenth] Amendments to the United States Constitution have been
25 clearly established since December 15[], 1791, therefore [Officer Gibson], cannot plead
26 Qualified Immunity for his conduct.” (Doc. 41 at 6). Plaintiff misinterprets the “clearly
27 established” prong of the analysis. “To find a clearly established right, the court must
28 consider the right at issue in a particularized sense, rather than ‘as a broad general
1 proposition.’” Cruz v. City of Tucson, No. CV-13-01115-TUC-DCB (LEAD), 2015 WL
2 11111305, at *3 (D. Ariz. July 14, 2015) (quoting Dunn v. Castro, 621 F.3d 1196 , 1200– 3 01 (9th Cir. 2010)). “This is because ‘the right allegedly violated must be defined at the
4 appropriate level of specificity before a court can determine if it was clearly established.’”
5 Id. (quoting Dunn, 621 F.3d at 1200–01). “The relevant, dispositive inquiry in determining
6 whether a right is clearly established is whether it would be clear to a reasonable officer
7 that his conduct was unlawful in the situation he confronted.” Id. (quoting Saucier v. Katz,
8 533 U.S. 194 , 202 (2001)); see also Dunn, 621 F.3d at 1200 (citation omitted) (“[T]he court
9 must ‘determine whether the preexisting law provided the defendants with ‘fair warning’
10 that their conduct was unlawful.”).
11 Here, the Court agrees with Plaintiff that the first, fourth, fifth, seventh, eighth,
12 ninth, and tenth Amendments were “clearly established” at the time of Officer Gibson’s
13 alleged conduct insofar as Plaintiff is asserting that those amendments—and their
14 constitutional guarantees—were in existence on August 12, 2022. But that is not the issue;
15 rather, the question is whether it would have been clear to a reasonable officer in Officer
16 Gibson’s place that his conduct violated one of those constitutional guarantees in the
17 situation he confronted. Plaintiff has failed to demonstrate this with any meaningful
18 support. Thus, even assuming that Plaintiff properly asserted constitutional violations
19 against Officer Gibson—which he did not—such allegations would be barred by qualified
20 immunity. The Court must dismiss Plaintiff’s claims for alleged constitutional violations
21 by Officer Gibson.
22 Turning to Plaintiff’s claim for conspiracy, the Court finds that Plaintiff has failed
23 to state a claim for conspiracy to interfere with civil rights. To state a claim for conspiracy
24 to interfere with civil rights under 42 U.S.C. § 1985(3), a plaintiff must allege four
25 elements: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly,
26 any person or class of persons of the equal protection of the laws, or of equal privileges
27 and immunities under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby
28 a person is either injured in his person or property or deprived of any right or privilege of
1 a citizen of the United States.” Sever v. Alaska Pulp Corp., 978 F.2d 1529 , 1536 (9th Cir.
2 1992) (citing United Brotherhood of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825 ,
3 828–29 (1983)). Plaintiff’s Complaint contains nothing but conclusory facts and fails to
4 allege any facts that, taken as true, plausibly establish any of these four elements. Rather,
5 the only facts Plaintiff provides related to Officer Gibson pertain to the August 12, 2022
6 phone conversation he had with Defendant Bradley. As discussed above, the facts alleged
7 related to that phone conversation do not show that Officer Gibson entered into a
8 conspiracy with Defendant Bradley or with any of the other Defendants in this matter.
9 Thus, Plaintiff’s claim for conspiracy to deprive him of civil rights must be dismissed.
10 Finally, Plaintiff appears to make claims for intentional infliction of emotional
11 distress and breach of fiduciary duty against Officer Gibson. However, Plaintiff does not
12 allege any facts that would plausibly establish the elements for either claim. For example,
13 Plaintiff does not plead that Officer Gibson engaged in any sort of action that could be
14 considered “extreme” or “outrageous.” See Cluff v. Farmers Ins. Exch., 10 Ariz. App. 560 ,
15 562 (1969) (defining extreme and outrageous conduct as conduct “so outrageous in
16 character, and so extreme in degree, as to go beyond all possible bounds of decency, and
17 to be regarded as atrocious and utterly intolerable in a civilized community”). Moreover,
18 Plaintiff does not specify what fiduciary duty Officer Gibson owed to Plaintiff during his
19 phone conversation with Defendant Bradley, let alone how his conduct in listening to
20 Defendant Bradley and then making a written documentation of that conversation breached
21 such a duty. All told, Plaintiff has failed to plausibly state any viable claim against Officer
22 Gibson, and Officer Gibson’s Motion to Dismiss must be granted.
23 B. Defendant Westerhausen’s Motion to Dismiss
24 Plaintiff alleges that Defendant Westerhausen—a Maricopa County Superior Court
25 Judge who apparently presided over Plaintiff’s and Defendant Bradley’s child custody and
26 child support dispute—was or is involved in a “conspiracy under color of law” with
27 Defendant Bradley and Officer Gibson. Plaintiff alleges that, together, these individuals
28 conspired to “do[] wrong and evil against him.” (Doc. 1 at 2). Plaintiff alleges numerous
1 claims against Defendant Westerhausen under both state and federal law. Defendant
2 Westerhausen argues that the claims “involve judicial acts that were within her subject
3 matter jurisdiction and are covered by judicial immunity.” (Doc. 37 at 1). The Court agrees.
4 “Judges and those performing judge-like functions are absolutely immune from
5 damage liability for acts performed in their official capacities.” Ashelman v. Pope, 793
6 F.2d 1072, 1075 (9th Cir. 1986) (emphasis added) (citing Richardson v. Koshiba, 693 F.2d
7 911, 913 (9th Cir. 1982)). “Immunity does not extend, however, to actions for prospective
8 injunctive relief.” Id. (emphasis added) (citing Pulliam v. Allen, 466 U.S. 522 , 541–42
9 (1985); Richardson, 693 F. 2d at 913, n.8 ). “Judges are immune from damage actions for
10 judicial acts taken within the jurisdiction of their courts.” Id. (citing Bradley v. Fisher, 80
11 U.S. (13 Wall.) 335, 347 (1872)). “Judicial immunity applies ‘however erroneous the act
12 may have been, and however injurious in its consequences it may have proved to the
13 plaintiff.’” Id. (citing Cleavinger v. Saxner, 474 U.S. 193 (1985)).
14 “The immunity afforded judges . . . is not absolute.” Id. “A judge lacks immunity
15 where he acts in the ‘clear absence of all jurisdiction’ . . . or performs an act that is not
16 ‘judicial’ in nature.” Id. (citing Stump v. Sparkman, 435 U.S. 349 , 360 (1978)). “The factors
17 relevant in determining whether an act is judicial ‘relate to the nature of the act itself, i.e.,
18 whether it is a function normally performed by a judge, and to the expectations of the
19 parties, i.e., whether they dealt with the judge in his judicial capacity.’” Id. (citing Stump,
20 435 U.S. at 362 ). “To determine if the judge acted with jurisdiction, courts focus on
21 whether the judge was acting clearly beyond the scope of subject matter jurisdiction in
22 contrast to personal jurisdiction.” Id. (listing cases). “Where not clearly lacking subject
23 matter jurisdiction, a judge is entitled to immunity even if there was no personal jurisdiction
24 over the complaining party.” Id. (citations omitted). “Jurisdiction should be broadly
25 construed to effectuate the policies supporting immunity.” Id.
26 Here, the Court finds that Defendant Westerhausen’s alleged conduct was judicial
27 in nature and within her jurisdiction; thus, judicial immunity applies to bar Plaintiff’s
28 claims for damages against Defendant Westerhausen. Plaintiff alleges that the decisions
1 and orders made by Defendant Westerhausen during the pendency of Plaintiff’s custody
2 dispute with Defendant Bradley—specifically those decisions and orders relating to
3 Defendant Bradley’s petition to modify child custody and child support—violated
4 Plaintiff’s constitutional rights. However, Plaintiff points to no decision or order that was
5 not judicial in nature or otherwise not within Defendant Westerhausen’s jurisdiction as a
6 judge overseeing a family law case. The Court agrees with Defendant Westerhausen that
7 any judicial decisions related to the adequacy of a petition to modify child custody and
8 child support, the timeliness of a motion for summary judgment motion, and whether a
9 party has waived any defenses are clearly judicial in nature and fall within the scope of
10 judicial immunity. Given that Plaintiff alleges no actions by Defendant Westerhausen that
11 were beyond the scope of her judicial duties, the Court finds that immunity applies, and
12 Plaintiff’s claims must be dismissed to the extent Plaintiff seeks damages.
13 Although judicial immunity does not bar Plaintiff’s claims to the extent Plaintiff
14 seeks injunctive relief, the Court nonetheless finds that injunctive relief against Defendant
15 Westerhausen is inappropriate as a matter of law, for numerous reasons. First, 42 U.S.C.
16 § 1983—under which Plaintiff brings several of his claims—specifically states that “in any
17 action brought against a judicial officer for an act or omission taken in such officer’s
18 judicial capacity, injunctive relief shall not be granted unless a declaratory decree was
19 violated or declaratory relief was unavailable.” As noted above, any alleged acts or
20 omissions by Defendant Westerhausen were expressly taken in her judicial capacity.
21 Moreover, Plaintiff’s Complaint makes no mention of a declaratory decree being violated
22 or declaratory relief being unavailable. Thus, § 1983 precludes any injunctive relief against
23 Defendant Westerhausen.
24 Even aside from § 1983, injunctive relief is also barred against Defendant
25 Westerhausen’s actions under 28 U.S.C. § 2283. Under § 2283, “[a] court of the United
26 States may not grant an injunction to stay proceedings in a State court except as expressly
27 authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect
28 or effectuate its judgments.” 28 U.S.C. § 2283. “The Act’s mandate extends not only to
1 injunctions affecting pending proceedings, but also to injunctions against the execution or
2 enforcement of state judgments.” Henrichs v. Valley View Dev., 474 F.3d 609 , 616 (9th
3 Cir. 2007) (citing Atl. Coast Line R.R. Co. v. Bd. of Locomotive Eng’rs, 398 U.S. 281 , 287– 4 88 (1970)). Thus, to the extent Plaintiff seeks injunctive relief that would affect the state
5 court proceedings before Judge Westerhausen or otherwise preclude the execution or
6 enforcement of her judgments, § 2283 precludes such relief.
7 Even aside from the above statutes, injunctive relief against the Superior Court is
8 barred by the Eleventh Amendment because the Superior Court is a state office. See Collins
9 v. Corbin, 160 Ariz. 165 , 166 (1989) (recognizing that the Superior Court is “a state
10 office”); Franceschi v. Schwartz, 57 F.3d 828 , 831 (9th Cir. 1995) (citation omitted) (“The
11 Eleventh Amendment bars suits which seek either damages or injunctive relief against a
12 state, an ‘arm of the state,’ its instrumentalities, or its agencies.”).
13 In sum, Plaintiff’s claims against Defendant Westerhausen must be dismissed.
14 Judicial immunity bars any of Plaintiff’s claims that seek damages and injunctive relief is
15 unavailable against Defendant Westerhausen or the actions she took in her capacity as a
16 Superior Court Judge.
17 C. Defendant Maricopa County’s Motion to Dismiss
18 Finally, Defendant Maricopa County contends that Plaintiff’s Complaint “does not
19 plead facts against Maricopa County, does not allege that a legal wrong has been committed
20 nor any action by Maricopa County.” (Doc. 47 at 3). Having reviewed the Complaint in its
21 entirety, the Court agrees. Plaintiff does not assert any facts or claims against Maricopa
22 County. Plaintiff does, however, assert claims against Maricopa County Superior Court
23 Judge Tracey Westerhausen. Plaintiff’s Response appears to imply that Maricopa County
24 can be held liable for the actions of Judge Westerhausen or the Superior Court. However,
25 to the extent Plaintiff takes issue with actions taken by the Superior Court or its employees,
26 Maricopa County is not the proper defendant because the judicial department is not under
27 the control of the County. See Zakrajsek v. Armstrong, No. CIV-04-0449-PHX-SMM,
28 2006 WL 120327 , at *5 (D. Ariz. Jan. 13, 2006) (citing Hernandez v. Maricopa Cnty., 138
1 Ariz. 143, 144–45 (Ct. App. 1983)) (“A county superior court and its personnel are
2 independent from a county”). Rather, the Superior Court is “part of the judicial department
3 and thus [is] not under the control of the executive branch of the government.” Hernandez,
4 138 Ariz. at 146 . “Therefore, the Maricopa County Superior Court and its personnel are
5 not under Maricopa County’s control.” Zakrajsek, 2006 WL 120327 , at *5. “Instead, as the
6 Arizona Supreme Court has noted, the superior court is ‘a state office.’” Id. (citing Collins,
7 160 Ariz. at 166 ) (emphasis in original).
8 Given that Plaintiff does not allege any independent facts or claims against
9 Maricopa County, and because Maricopa County cannot be held liable for the actions of
10 the Superior Court or its judges or staff members, the Court must grant the County’s
11 Motion to Dismiss and dismiss the County from this action.
12 IV. CONCLUSION
13 Leave to amend a deficient complaint should be freely given “when justice so
14 requires.” Fed. R. Civ. P. 15(a)(2). When dismissing for failure to state a claim, “a district
15 court should grant leave to amend even if no request to amend the pleading was made,
16 unless it determines that the pleading could not possibly be cured by the allegation of other
17 facts.” Lopez v. Smith, 203 F.3d 1122 , 1130 (9th Cir. 2000) (internal quotation marks
18 omitted). “Futility of amendment can, by itself, justify the denial of a motion for leave to
19 amend.” Bonin v. Calderon, 59 F.3d 815 , 845 (9th Cir. 1995).
20 Here, the Court finds that leave to amend would be futile, given the numerous
21 jurisdictional issues and assertions of immunity discussed above. Thus, the Court denies
22 Plaintiff leave to amend and dismisses Defendants PHXPD, Gibson, Westerhausen, and
23 Maricopa County from this action with prejudice.
24 According,
25 IT IS ORDERED that Defendants Phoenix Police Department’s and Jasquin
26 Gibson’s Motion to Dismiss (Doc. 31) is granted. Defendants Phoenix Police Department
27 and Jasquin Gibson are dismissed from this action with prejudice.
28 ///
1 IT IS ORDERED that Defendant Westerhausen’s Motion to Dismiss (Doc. 37) is
2| granted. Defendant Westerhausen is dismissed from this action with prejudice.
3 IT IS ORDERED that Defendant Maricopa County’s Motion to Dismiss (Doc. 47)
4| is granted. Defendant Maricopa County is dismissed from this action with prejudice.
5 Dated this 11th day of January, 2023.
6
g United States District Jadge
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15