Case Information
WO
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Rebekah Coty, ) No. 05-CV-2720-PHX-FJM
) ) ) ) ) ) ) ) ) ) )
Plaintiff, ORDER
vs.
City of Peoria, et al.,
Defendants.
The court has before it Defendant City of Peoria's ("Peoria") Motion to Dismiss (doc.
5), Plaintiff's Response (doc. 9), Plaintiff's Amended Response (doc. 12), Peoria's Reply (doc. 13), and Plaintiff's Response to Peoria's Reply (doc. 18); Defendant City of Phoenix's ("Phoenix") Motion to Dismiss (doc. 6) and Plaintiff's Response (doc. 8); Peoria's Motion for an Extension of Time (doc. 10); Plaintiff's Motion to Amend the Complaint (doc. 11) and Peoria's Response (doc. 16); and Plaintiff's Motion for an Extension of Time (doc. 15) and Peoria's Response or alternatively, Motion to Strike (doc. 17). The court also has before it Peoria's Motions to Strike (docs. 14, 19, 23); Phoenix's Motion to Strike (doc. 20) and Amended Motion to Strike (doc. 21); and Plaintiff's Motions to Strike (docs. 22, 24, 25) and Peoria's Response (doc. 26).
I.
Plaintiff filed this action pro se. The procedural rules are complex, and can be daunting without the aid of a lawyer. We understand that affordable counsel is often difficult to obtain, and unfortunately, because this is a civil action, we are unable to appoint counsel for plaintiff. However, plaintiff is strongly encouraged to obtain counsel, and may choose to contact the Lawyer Referral Service of the Maricopa County Bar Association at (602) 257- 4434.
Plaintiff alleges that Officer M. Kess of the Peoria Police Department illegally entered plaintiff's property, and illegally seized plaintiff's tractor. Plaintiff further alleges that the officer acted upon an incorrect Phoenix police report, which Phoenix failed to correct after plaintiff informed it of its error. Plaintiff appears to raise a state law tort claim. Moreover, although plaintiff did not intend to raise a constitutional claim upon filing, it appears that she now raises a 42 U.S.C. § 1983 [1] claim alleging a violation of her Fourth Amendment rights. [2] Response to Peoria's Motion to Dismiss at 6.
Plaintiff filed her complaint in the Superior Court of Arizona in Maricopa County, and defendants removed to federal court pursuant to 28 U.S.C. § 1441. Notice of Removal (doc. 1). We have jurisdiction over the federal claim pursuant to 28 U.S.C. § 1331, and over the state claim pursuant to 28 U.S.C. § 1367.
The complaint plaintiff filed in state court, Notice of Removal, Attachment 1 (Complaint) (doc. 1), becomes the complaint here. Plaintiff subsequently filed a document titled "Complaint" (doc. 7). This "Complaint" is actually a response to Peoria's and Phoenix's motions to dismiss and is largely identical to plaintiff's response to Peoria's motion to dismiss. Accordingly, we disregard plaintiff's "Complaint" (doc. 7), and for clarity, all future references to the complaint refer to the document attached to the Notice of Removal.
Plaintiff moves to amend the complaint to add Officer M. Kess as a defendant (doc. 11). Defendants have not yet filed an answer to the complaint, and accordingly, plaintiff is entitled to amend the complaint once without leave of the court. Fed. R. Civ. P. 15(a). Accordingly, plaintiff's motion to amend the complaint is denied as moot (doc. 11). If plaintiff does file an amended complaint naming Officer M. Kess as a defendant, she must comply with Rule 8 of the Federal Rules of Civil Procedure, and she must serve defendant Kess in accordance with Rule 4 of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure and the Local Rules of Civil Procedure are available through the website of the United States District Court for the District of Arizona, www.azd.uscourts.gov.
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, Peoria moves to strike four of plaintiff's briefings as untimely, repetitive, and irrelevant (docs. 14, 17, 19, 23). Pursuant to the same rule and for mostly the same reasons, Phoenix moves to strike one briefing (docs. 20, 21), and plaintiff moves to strike three briefings (docs. 22, 24, 25). Rule 12(f) provides that "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Each of the motions before us refers to a motion, response, reply, or other briefing, but not to a pleading, and accordingly, lies outside the scope of the rule. See 2 James Wm. Moore et al., Moore's Federal Practice § 12.37[2]. Therefore, each motion to strike is denied (docs. 14, 17, 19, 20, 21, 22, 23, 24, 25).
However, plaintiff is instructed that upon filing a motion, the opposing parties may file a responsive memorandum, and the moving party may file a reply memorandum to the response. LRCiv 7.2(c), (d). Parties are prohibited from filing a responsive memorandum to a reply memorandum, or any other memorandum not provided for in the rules. We disregard any arguments or evidence that has been presented to us in violation of this rule.
Due to scheduling conflicts, Peoria moves for a five-day extension of time to file its reply in support of its motion to dismiss (doc. 10). This motion is unopposed, and Peoria has since filed its reply. Peoria's request is reasonable, and accordingly, we grant its motion for an extension of time (doc. 10).
Plaintiff moves for an extension of time to file a response to Peoria's motion to dismiss (doc. 15). At the time of filing her motion, plaintiff had already filed a response (doc. 9). Presumably, plaintiff refers to a response to defendant's reply, which she ultimately filed, and which is impermissible. Accordingly, plaintiff's motion for an extension of time is denied (doc. 15).
II.
Peoria and Phoenix move to dismiss plaintiff's state law claim for the failure to state a claim upon which relief can be granted. Peoria's Motion to Dismiss at 2-3; Phoenix's Motion to Dismiss at 3-4. Defendants argue that the state claim is barred by A.R.S. § 12- 821.01, which provides in relevant part that:
Persons who have claims against a public entity . . . shall file claims with the person or persons authorized to accept service for the public entity . . . as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity . . . to understand the basis upon which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim which is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon. Plaintiff argues that she complied with this provision because she orally complained to both Phoenix and Peoria that her tractor had been illegally taken from her by Officer Kess, and because she demanded its return or $6,000 in compensation. Response to Peoria's Motion to Dismiss at 2-4. To the extent that such oral notice is sufficient under A.R.S. § 12-821.01, plaintiff's claim is still barred because she does not allege that she directed her claims to the "chief executive officer, the secretary, clerk, or recording officer" of the respective cities, who are the "persons authorized to accept service for the [cities] . . . as set forth in the Arizona rules of civil procedure." Ariz. R. Civ. P. 4.1(i); A.R.S. § 12-821.01; Young v. City of Scottsdale, 193 Ariz. 110, 114, 970 P.2d 942, 946 (Ct. App. 1998). Moreover, even if the cities had actual notice of the claim, compliance with A.R.S. § 12-821.01 is still required. Martineau v. Maricopa County , 207 Ariz. 332, 335, 86 P.3d 912, 915 (Ct. App. 2004); Blauvelt v. County of Maricopa, 160 Ariz. 77, 80, 770 P.2d 381, 384 (Ct. App. 1988). Accordingly, Peoria's and Phoenix's motions to dismiss plaintiff's state law claims are granted (docs. 5 and 6).
III. Phoenix moves to dismiss all claims against it, arguing that plaintiff failed to assert any cognizable causes of action. Phoenix's Motion to Dismiss at 2-3. Plaintiff alleges that Phoenix issued the police report for the stolen tractor, Notice of Removal, Attachment 1 (Complaint) at 3-4, failed to recognize that the serial number of the impounded tractor did not match the serial number on the police report, Response to Phoenix's Motion to Dismiss at 2, and failed to rectify the situation after plaintiff alerted the city of the problem, Id. at 3.
A pro se plaintiff is "entitled to great leeway when the court construes h[er] pleadings." Brazil v. United States Dep't of the Navy, 66 F.3d 193, 199 (9th Cir. 1995). Accordingly, we conclude that plaintiff's allegations, if properly pleaded, might form the basis for a tort claim against Phoenix. However, that claim still fails for violating A.R.S. § 12-821.01. To the extent that plaintiff intends to raise a constitutional claim against Phoenix, that claim is far more obscure, and the allegations are insufficient to state a claim upon which relief can be granted. Accordingly, Phoenix's motion to dismiss plaintiff's federal claim directed against it is granted (doc. 6).
IV. Peoria moves to dismiss plaintiff's constitutional claim, arguing that relief cannot be granted upon it because a city cannot be held liable for the constitutional torts committed by its employees. Peoria's Motion to Dismiss at 2. We agree. The doctrine of respondeat superior is inapplicable to section 1983 claims against cities. [4] Monell v. Dep't of Social Services, 436 U.S. 658, 694-95, 98 S. Ct. 2018, 2037-38 (1978). However, a city may be liable under section 1983 "when [the] execution of [the] government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id. Plaintiff, however, does not allege that Peoria has a custom or policy of committing illegal searches and seizures. Plaintiff only alleges that the city will never admit any wrongdoing, Notice of Removal, Attachment 1 (Complaint) at 5, and that
the city refused to control the actions of its officers and failed to "assert justice," Response to Peoria's Motion to Dismiss at 1. Accordingly, Peoria's motion to dismiss plaintiff's federal claim directed against it is granted (doc. 5).
V. IT IS ORDERED GRANTING defendant City of Peoria's Motion to Dismiss (doc. 5).
IT IS FURTHER ORDERED GRANTING defendant City of Phoenix's Motion to Dismiss (doc. 6).
IT IS FURTHER ORDERED GRANTING defendant City of Peoria's Motion for an Extension of Time (doc. 10)
IT IS FURTHER ORDERED DENYING as moot plaintiff's Motion to Amend the Complaint (doc. 11).
IT IS FURTHER ORDERED DENYING defendant City of Peoria's Motions to Strike (docs. 14, 17, 19, 23).
IT IS FURTHER ORDERED DENYING defendant City of Phoenix's Motions to Strike (docs. 20, 21).
IT IS FURTHER ORDERED DENYING plaintiff's Motions to Strike (docs. 22, 24, 25).
IT IS FURTHER ORDERED DENYING plaintiff's Motion for an Extension of Time (doc. 15).
Plaintiff expressed her intention to amend the complaint to add Officer M. Kess as a defendant. Plaintiff shall file any amended complaint within 30 days of the docketing of this order to avoid entry of final judgment on her complaint.
DATED this 18 th day of January, 2006.
[1] 42 U.S.C. § 1983 provides in relevant part that: 21 Every person who, under color of any statute, ordinance, regulation, custom, or 22 usage, of any State . . . , subjects, or causes to be subjected, any citizen of the 23 United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution [of the 24 United States] and laws, shall be liable to the party injured in an action at law, 25 suit in equity, or other proper proceeding for redress . . . . 26
[2] The Fourth Amendment to the United States Constitution provides that: 27 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .
[3] In an untimely motion that does not conform with the requirements of either the Local Rules of Civil Procedure or the Federal Rules of Civil Procedure, plaintiff asserts that she complied with A.R.S. § 12-821.01 because she gave Peoria written notice of her complaint (doc. 25). Even if we were to consider that assertion, it would not change the outcome because plaintiff does not assert that she filed her notice with one of Peoria's representatives authorized to receive service of process.
[4] Respondeat superior liability is the "doctrine holding an employer or principal liable 27 for the employee's or agent's wrongful acts committed within the scope of the employment or agency." Black's Law Dictionary 1313 (7th ed. 1999).