Mulleneaux v. State

state, therefore, develop the no reason to had offi- for the undercover (obtaining the vehicle opportunity to do have the cer), record and should be considered the offenses should evidentiary hearing. occa- so in an on the “same having been committed enhance- purpose of sentence sion” for the ¶ hearing evidentiary reveals If an ment. Id. marijuana methamphet- and Kelly sold that ¶ held, if Sheppard implicitly not single single in a transac- to a officer amine objective” expressly, “single that the criminal forth Noble that the doctrine set tion and isolation, but to be used not test was that the of- Sheppard is satisfied such and to deter conjunction the Noble factors with commit- uninterrupted and were were fenses were committed two offenses single mine whether place with same time and ted at the is no all- occasion.” “There on the “same two offenses objective, then the criminal determining whether test for encompassing single trans- as a properly be treated would on the ‘same committed two offenses If were the “same occasion.” committed on action ” (citing P.2d at 580 otherwise, occasion.’ Id. at then a con- analysis reveals 691; Shulark, Ariz. at 784 P.2d at trary would follow. result 97; at P.2d at State Henry, 152 Ariz. 596-97, Perkins, 699 P.2d 144 Ariz. DISPOSITION (1985), on other overruled 369-70 ¶ appeals’ Accordingly, the court of Noble, P.2d grounds by 152 Ariz. at im- decision and the sentence memorandum 1232). necessarily at The determination vacated, is remanded posed are and this case case. turn facts of each must on Maricopa County Superior Court with merely emphasized that Sheppard See id. evidentiary hear- an instructions to conduct considered, they if but the factors were to be whether, purposes of question ing on the satisfied, strictly individually not were enhancement, prior convic- the two sentence may designated single as a offenses still be on from offenses committed tions stemmed single they toward a prior if were directed meaning “same occasion” within objective. criminal 13-604(M). Kelly Timothy David A.R.S. ¶ commonly inter- 10 “Same occasion” is with the be resenteneed consistent shall then time, place. preted to mean same same principles set findings and the trial court’s at If Henry, 152 Ariz. at 734 P.2d forth in this decision. hold, appeals, were to as did the court of we single objective test had criminal FELDMAN, ZLAKET, C.J., and test, may we be com- supplanted the factors MARTONE, JJ., concur. and MOELLER wholly pelled that two unrelated of- to find place, committed at the same time and fenses victims, perhaps against the same were

even on the “same occasion.” This not committed result, unacceptable as it create an would meaning of the would vitiate the intended em- phrase occasion.” We therefore “same test is still phasize that the Noble factors P.2d 1156 not abandoned this current and has been Gary and Constance Glen MULLENEAUX Noble, Shulark, court, Henry and and that wife; Mulleneaux, husband A. good law. remain Janac, Inc., Plaintiffs-Appellants, ¶ argues in this case 11 The state report provides an “unveri- presentence Arizona; Of State of argue upon which to the STATE factual basis fied” General, agency fice of the be allowed to law and contends it should Woods, Arizona; Grant of the State of Kelly’s arguments with a more respond to individually General, both agree. Kelly record. We developed factual capacity; Michael C. Cu in his official object to the use of in the trial court did not General, dahy, both Assistant his sentences. priors two to enhance individually capacity, and in his official Cudahy,

and Jane Doe husband and wife; City Phoenix; City of Phoenix Department;

Police Detective John Stahl, individually both and in his offi capacity employee cial Stahl, and Jane Doe hus wife, Defendants-Appellees. band and No. 1 CA-CV 96-0286. Appeals Court of 1, Department Division C. April 1997. July Reconsideration Denied Review Denied Feb. 1998.* * J., McGregor, participate did not in the determi- nation of this matter.

Jones, R. Hochuli William Skelton & Jr., Phoenix, Jones, Defendants-Appel- City of Phoenix and Stahl. lees

OPINION

KLEINSCHMIDT, Judge. Plaintiffs, Gary Mulle- and Constance Janac, Inc., neaux, corporation, owned a by telephone on behalf solicited funds them, Ari- organizations, among various The Phoe- zona Police Athletic Federation. Plaintiffs police, alleging nix a belief that the solicitation, exe- engaged in fraudulent were warrant on the business and cuted search printers, corporation’s computers, seized the supplies. office As a payroll records and result, go out of busi- Janac was forced ness. that the Defendants

The Plaintiffs assert by duty to were not motivated a sense of Instead, they say, the law. enforce jealous Gary Mul were both Defendants leneaux, police who was a former Phoenix officer, money making he was for doing resentful of the fact that he was it by soliciting organizations af for that were police. Accordingly, filiated with the July complaint the Plaintiffs filed a State, Attorney naming the General’s General, Office, Attorney an Assistant wife, City of Attorney General and his Phoenix, Department, the Phoenix Police police an individual detective and his wife and various unnamed individuals as defen dants. The Plaintiffs later amended the allege three counts one, the Plaintiffs al Defendants. count by leged rights “secured to them the constitution and the laws of the United giving to a had been violated rise States” claim under 42 1983. Count two U.S.C. personal was a claim for conversion of property. asserted that Count three intentionally interfered with Ja Defendants by Kimerer & LaVelle Michael J. LaVelle contracts and business relations. nac’s Firestone, Phoenix, Plain- B. for and Merrick 1995, the In October State tiffs-Appellants. Attorney Gen- State of Arizona Office eral, Woods, Attorney by General Grant Woods and As- Attorney General John Grant General, Cudahy Birkemeier, Michael sistant General C. E. Assistant moved to dismiss on four Defendants-Appellees State of and his wife (1) bring within grounds: failure to the claim Arizona. who, any under color of Every person days required Arizona Revised ordinance, custom, (A.R.S.) statute, regulation, 12- section Annotated Statutes Territory any or the usage, enti- State or “regarding claims 821.01 (2) Columbia, subjects, or causes to to com- public employees,” failure District ties or limitations, any subjected, citizen of the United one-year ply with the statute jurisdic- (3) person or other within upon a claim which relief States “failure to state (4) any deprivation of “the tion thereof to the granted,” and because [could] be non-jural privileges, immunities secured rights, enti- Office is General’s laws, be lia- shall and Detective John the Constitution ty.” The of Phoenix law, injured in an action at party answered the amended ble and his wife Stahl proper proceeding They equity, or other complaint in asserted suit November (1) including: failure to for redress. several defenses (2) timely failure to meet state a claim and (1994). alleged that “all De- The Plaintiffs 12- requirements of A.R.S. sections filing the deprive of law to fendants” acted under color 821 and 12-821.01. rights, privileges, and im- of their “Plaintiffs by the constitution munities secured to them for the the action The trial court dismissed laws of the United States.” and the dis- following the entire action was reasons: Attorney General’s Office The of the defendant is critical missed as status one, non-jural entity; has evaluating it is a count whether a claim been because when action, § § as to all was dismissed The United States Su the 1983 stated under first, grounds, two it was not that “neither a State preme defendants on has held Court one-year capaci limita- brought acting the statute of in their official within nor its officials § provided by ‘persons’ A.R.S. section 12-821 1983.” Will v. tions as ties are under second, Police, 58, and, a the Plaintiffs failed to state 491 U.S. Michigan Dep’t State of 2304, 2321, granted; 71, be L.Ed.2d 45 upon claim which relief could 105 109 S.Ct. (1989). Therefore, to all a two and three were dismissed as count one did not state counts Arizona; the Plaintiffs failed the of against Defendants because cause of action State Attorney comply requirements with the time of A.R.S. of Office State 12-821.01, Woods, requires General; Attorney which claims General section .Grant Cudahy, employ- brought against public capacity; entities or or Michael C. his official ca days the accrual of the in his official ees within 180 General Assistant pacity. cause of action. one will review the dismissal of count We § THE 1983 CLAIM THE OF DISMISSAL allegations in amended com first. The DE- THE MUNICIPAL AGAINST true, up plaint are considered and we will FENDANTS WAS PROPER only suscepti if facts hold the dismissal § claim 1983 We next discuss proof support ground will no for relief. ble of City City as it relates to Mesa, 159, 162, Weekly City 181 Ariz. v. Detective Department and Phoenix Police 1346, (App.1994). We review 888 P.2d 1349 (Municipal capacity in his official John Stahl 163, P.2d at legal issues de novo. Id. at 888 Graham, Defendants). 473 Kentucky v. ruling will sustain the trial court’s 1350. We 3104-05, 3099, 159, 165, 87 105 S.Ct. U.S. if court’s if the result is correct even (1985) (suit against an officer 114 L.Ed.2d No.

reasoning was not. Mental Health Case way plead capacity is another his official 440, 94-00592, 742 Ariz. 897 P.2d MH 182 entity of which the against the ing an action (App.1995). and local Municipalities agent). officer is purposes for of a “persons” governments are § THE 1983 CLAIM THE DISMISSAL OF Department Social v. § action. Monell 1983 AT- THE AND THE AGAINST STATE 2018, rvs., 56 98 S.Ct. 436 U.S. Se PROPER GENERAL WAS TORNEY (1978). claim to state a order L.Ed.2d 611 municipal § a under a § for relief Count one is based on U.S.C. first, the be satisfied: ity, must two elements provides: General, harm the Assistant must have been caused constitu- and, second, municipality wife, tional violation police and his and the Phoenix General responsible (Individual constitutional must be such detective and his wife Defen- Heights, violation. v. Harker Collins dants). To state a claim an individu- Tex., 503 U.S. S.Ct. al, plaintiff allege person must (1992). L.Ed.2d 261 deprived him of a or constitutional federal doing right and acted under color of law in municipality municipal agency A or Toledo, 635, 639-40, so. Gomez U.S. § cannot be held liable under 1983 on a 1923-24, 64 L.Ed.2d 572 100 S.Ct. Monell, respondeat superior theory. (1980). 690-94, U.S. at 98 S.Ct. at 2035-38. A mu however, nicipality, can be held under liable policy municipal complaint, broadly, if 1983 a or custom of the read has

ity caused the constitutional harm. alleged deprivation Leather of a constitutional man v. Tarrant Narcotics Intelli right. deprivation right A of a constitutional Unit, gence & Coordination 507 U.S. sufficiently pled in a if 1983 action facts 1160, 1162, 122 L.Ed.2d 517 S.Ct. alleged deprivation are “which show of a “ (1993). allegation bare that the indi ‘[A] right, privilege immunity secured vidual officers’ conduct conformed to official Lopez Constitution or federal law....” ” custom, policy, practice’ satisfy will Sens., Department Health pleading requirements. Karim-Panahi v. (9th Cir.1991). necessary 883 It is not “to 621, Angeles Dep’t, Los Police 839 F.2d 624 statutory or state the constitutional basis (9th Cir.1988) (quoting County Shah v. of long underlying for” claim as as the facts (9th 743, Angeles, Los 797 747 F.2d Cir. present. are McCalden v. Li California 1986)). It that at minimum follows the Ass’n, (9th 1214, brary 955 F.2d 1223 Cir. pleading allege municipal policy must that a 1990), denied, 957, cert. 504 112 U.S. S.Ct. responsible or custom was harm. for the (1992). 2306, 119L.Ed.2d 227 complaint The amended failed to meet this pleading requirement. liberal complaint provides The amended “[a]ll that of the Defendants acted in concert one with complaint generally The amended al conspired another and with each other to leges Municipal that the Defendants acted ...,” deprive rights Plaintiffs of their “the statute, “under of regulation, color state cus in Defendants have acted concert with one tom, usage” they deprived or when the conspired another and with each other to rights. Plaintiffs of their Nowhere in the personalty,” forfeit and convert Plaintiffs’ the complaint allegation there an is that the Mu nicipal “Defendants became dissatisfied with what compliance Defendants acted in with pursuant they municipal policy perceived to a or to be the lucrative custom. nature of (court complaint business,” “Defendants, See id. held that amended [Plaintiffs’] against municipality stated a claim concert, when it acting illegal formed scheme to alleged pursuant policy action to official of business,” put Plaintiff Janac out of the De- city police department in addition to fendants obtained search warrant with the law). Therefore, action under color of state destroy intent “to the business affairs of the amended did not state facts Plaintiffs,” property the Defendants took allegations satisfy prongs both of a possibly “which could not be utilized as evi- § against Municipal 1983 claim Defen destroy dence” but was taken “to the busi- dants and count one these Defen Plaintiffs,” of and the Defendants ness affairs properly dants was dismissed. kept property “thereby of the Plaintiffs putting the business out of business.” § THE THE DISMISSAL OF 1983 THE CLAIMS AGAINST INDIVIDU- complaint sufficiently alleges The amended AL DEFENDANTS WAS NOT PROP- deprived that the Defendants Individual ER rights. of their constitutional Plaintiffs Cochise, Bergquist F.2d sufficiency v. 806 We turn now to the of (9th (execution Cir.1986) they allegations of count one as relate to the 1364 of warrant 540 rights. liability their conclude that may present manner them of We

unreasonable Tucson, 1983); requisite with City pled conspiracy § v. Plaintiffs under Mann 782 of (9th (substantive Cir.1986) specificity. pro 790 due F.2d taking prop cess violated unreasonable reason dismiss The court’s other erty regardless process by taking is ing § was that the Plaintiffs 1983 count accomplished); Uptown People’s Community comply 12-821 A.R.S. section failed with Health Bd. Directors v. Board Servs. requires (Supp.1996), which actions 727, County, F.2d 734 Comm’rs Cook 647 employees to be public entities (7th Cir.1981) (“[s]tate proper deprivation However, ap year. on brought within one 1983.”) ty rights cognizable (citing § is under brief, State, responsive con peal its Corp., Lynch v. Finance 405 U.S. Household one-year period limitations cedes 1113, (1972), 538, 424 92 31 L.Ed.2d S.Ct. apply to under does not federal claims denied, 328, cert. 454 U.S. 102 S.Ct. Casey, Felder v. U.S.C. 1983. Indeed (1981); v. L.Ed.2d 167 Robinson Se 108 S.Ct. 101 L.Ed.2d U.S. (1992) attle, P.2d 318 Wash.2d (1988), indi appears controlling personal (property rights and liberties are filing requirement cates that Arizona’s denied, 1983), protection within cert. law. preempted as inconsistent with federal 676, 121 U.S. 113 S.Ct. L.Ed.2d Therefore, improperly count was dis one (1992)). minimum, amended At a com Defendants on missed as Individual plaint articulated a violation of the Plaintiffs’ this basis. process rights property. in their due We have considered whether the con also THREE TWO AND WERE COUNTS specifici spiracy pled requisite with the was AS PROPERLY DISMISSED Halden, ty. Hoffman TO ALL PARTIES (9th Cir.1959), on 294-95 overruled other Norris, F.2d grounds 29- Cohen properly two and were dis- Counts three (1962), Appeals the States Court of United parties. as to all Arizona Revised missed allegation that an for the Ninth Circuit held provides: Statutes section 12-821.01 “ purposely sys the defendants ‘did and against A. Persons who have claims tematically intentionally discriminate and public entity a.public employee or shall file him against plaintiff subjected and to treat persons autho- person with the or claims following particulars in ment the were entity accept public for the rized to service compelled by ... privileged law ’was not employee ... hundred public within one pleading a sufficient because: days ac- eighty after- the cause of action way plead plaintiff In what can con- other crues. Certainly required to spiracy? he is not Municipal Both Defendants the State and place the and date meet- list of defendants’ failed to this statute. The Plaintiffs invoked summary and their ings the conversa- to the Defendants’ response refute in their required not to tions. He should be here dismiss, bars to that section 12-821.01 motion plead his evidence. appeal they not counts and on do these two Corp., Int’l also Brever v. Rockwell application challenge the of that statute. (10th Cir.1994). In a later F.3d case, Casino, it Finally, Plaintiffs assert that Airport the Ninth Circuit Uston v. (9th Cir.1977), Inc., to the was for the trial court dismiss court error F.2d Municipal as complaint, action as to the Defendants deficient for a concluded that reasons, they join motion to not in the State’s was also defective be- did number against claims in “the Dismissal of the pleading conspiracy record dismiss. cause allegations proper Defendants was because specific Municipal to devoid of factual [was] in they grounds answer sufficient their support 564 F.2d at 1217. raised the claim.” not us, We do address support have alluded to dismissal. case before the Plaintiffs Attorney General’s Of issue of whether the by the Defendants done with to acts purposes being jural entity for allegedly deprived fice is a improper intent which time, disposed money, sued as we have in of the claims and deterrence distrac- grounds. duty it on other occa- tion from execution conelusory allega- sioned ill-defined and “An tions of constitutional breach created CONCLUSION Absolute Need for Trial Courts to Demand dismissing The order of the trial court Pleading.” Clear 751 P.2d at 1476. While count one as to the State of involved, defendants, prosecutors Elliott as Attorney Office, State of Arizona General’s enjoyed judge potentially and a who abso- Attorney capacity, General in official his actions, immunity height- lute for their the Assistant General in his official pleading applies police ened standard also capacity, City City officers, may as to whom immunities Department, police Phoenix Police and the 12, 13; qualified. 751 F.2d at nn. capacity detective in his official is affirmed. Antonio, Palmer San dismissing The order counts and three two (5th Cir.1987). Fifth 516-17 The Cir- to all Defendants is affirmed. The order support heightened plead- cuit drew its dismissing count one as to the Gen- ing requirement in from actions eral, the Assistant General and his practices jur- in numerous other circuits and police wife and the detective and his wife Elliott, isdictions. 751 F.2d at nn. capacities their individual is reversed. The case is remanded the trial court for fur- proceedings. ther Supreme The United States Court has not propriety applying height addressed the J., GRANT, concurring. pleading ened standard to 1983 actions THOMPSON, Presiding Judge, concurring individuals, brought against although it re part, dissenting in part. jected regarding such a standard actions against municipalities in Leatherman v. Tar agree

I majority’s with the determination rant Intelligence Narcotics appeal except of this as to the conclusion that Unit, Coordination 507 U.S. 113 S.Ct. pled amended was with the (1993). requisite L.Ed.2d 517 specificity. persuaded I Court am that a rejected heightened the Fifth pleading Circuit’s extension of its standard such as that Perez, adopted pleading against municipal Elliott v. doctrine to cases F.2d 1472 (5th Cir.1985) applied to actions defendants on two bases: immuni that the government officials as properly municipalities individuals ties of are not diminished balances the interests of citizens with valid pleading liberal allowances because munici complaints of constitutional violations and of palities, government “unlike various offi public officials who seek discharge to then- cials,” actions; § are not immune from 1983 appropriately. duties Applying a such stan- pleading requirements ap strict do not dard, I would affirm the trial court’s dismiss- 166-68, pear in the federal rules. 507 atU.S. al of this action in toto. 113 S.Ct. at 1162-63. The Court noted that the Leatherman case it afforded “no occasion Elliott, the Fifth Circuit viewed con- qualified immunity to consider whether our fusing complaint alleging, in conelusory jurisprudence require heightened would fashion, a of series constitutional violations pleading involving govern in cases individual arising bewildering out of a welter of machi- 166-67, 113 ment officials.” 507 at U.S. S.Ct. surrounding grand jury nations investiga- disclaimer, Notwithstanding at 1162. that at political corruption Plaquemines tions into in court, § in least one federal district 1983 County, Louisiana. “Shenanigans See in brought against public action officials both Plaquemines,” 751 F.2d at 1473. In the individually capacities, and in their official phrasing” face of alleged “blunderbuss of claims, broadly preclude has read Leatherman to constitutional the court concluded legitimate application special pleading requirements that .support interests which Rotzler, the assertion of valid immunities of to 1983 cases. 862 Waldron v. (N.D.N.Y.1994). imperiled, officials were F.Supp. and that the costs 768 542 itself, allegations of the sufficiency actionable. The majority measures the conduct are complaint by wrongfulness to of Defendants’ the instant reference Hoff (9th Halden, Cir.1959), by completely unsupported very

man v. 268 F.2d 280 broad and Further, conspicu which not consider or any specific a case does factual averments. plead ously adopt any particular standard of casually indirectly,” to is to “refer “allude” Indeed, the Fifth cited a later ing. intimate, Circuit “hint, Random House suggest.” Casino, case, Airport v. Ninth Circuit Uston English Language, Una Dictionary of the (9th Cir.1977) Inc., support 564 F.2d 1216 (2d ed.1987). and intima bridged, Hints specificity requirements for adoption its enough. are not tions Elliott, F.2d at rights actions. See civil exposition colorful In his otherwise merely holds that “conclu n. 20. Uston specific pleading in civil for factual need sory allegations ‘conspiracy,’ [where] cases, Judge Brown wrote: rights specific allegations factual record is devoid of immunity purposes In view of the viola support the claim” of constitutional defense, Supreme by the Court as declared tion, at 1217. not suffice. 564 F.2d does Court, allowing we conclude and this case, Conversely, Hoffman, seems the earlier those broadly-worded complaints, such as conclusory allegations as to to countenance here, leaves to tradi- plaintiffs (“Hoffman conspiracy of a also the existence interrogatories, pretrial depositions, tional conspired.’ In what alleges the ‘defendants develop- requests for admission conspiracy?” way plead can Plaintiff other claim, underlying the ment of the real facts 294). at the Ninth Hoffman, 268 F.2d While effectively important functions eviscerates provided signal no clear as to the Circuit has immunity. protections of official pleading civil “height” of its standard cases, any rights Elliott, are not in event bound agree. we I F.2d at 1476. subject. T. Alicia its views on majority’s Respectfully, I dissent from Angeles, Cal.App.3d Los to the sufficien- reversal of the trial court as (1990) (California Cal.Rptr. defen- cy of the action the individual by Ninth Circuit decision courts not bound dants. circuits are conflict on fed where federal question). eral clear, may gleaned from the

It complaint the amended set excerpts from majority, forth pleading heightened stan- does not meet specific rights A civil action should be dard. allegations of constitutional vio- in its factual 950 P.2d (“we consistently require the claimant lation Arizona, Appellee, STATE of facts, merely conclusory not to state cases; allegations,” in Colie v. Brazos (5th Texas, County, F.2d 243 n. 27 TISCARENO, Appellant. Jorge and, Cir.1993), Elliott), where de- quoting 96-0038. No. CA-CR likely, particular fac- immunity are fenses of unavailability of such as to the tual detail Appeals of Court of Colle, at 246. supplied. defenses 1, Department A. Division facts, complaint does not recite This 8,May 1997. conclusory allegations.” The “merely but alluded to majority says “the Plaintiffs have May As Amended alleg- specific acts the Defendants rights.” The edly deprived them of their by Plaintiffs

only “specific acts” “alluded” to warrant and the the execution of search are property. con- consequent seizure of Such not, by police prosecutors duct officers

Case Details

Case Name: Mulleneaux v. State

Court Name: Court of Appeals of Arizona

Date Published: Apr 22, 1997

Citation: 950 P.2d 1156

Docket Number: 1 CA-CV 96-0286

Court Abbreviation: Ariz. Ct. App.