Dixon v Pinal County 10-0325PHXDKD partial documents of lawsuit with clear and convincing evidence.
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Transcript of Dixon v Pinal County 10-0325PHXDKD partial documents of lawsuit with clear and convincing evidence.
Case 2:10-cv-00325-DKD Document 11 .. Filed 03/08/10 Page 1 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Office of the Pinal County AttorneyJoe A. Albo, Sate Bar No. 004810P.O. Box 887Florence, Arizona 85132520-866-6242520-866-6521 - FaxAttorney for the Pinal County Defendants
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9 MARK E. DIXON, NO. CIV 100325 PHX DKD
ANSWER OF THE PINAL COUNTYDEFENDANTS
Plaintiff,
Defendants.
v.
12 PINAL COUNTY, a political subdivision ofthe State of Arizona, et. al
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as follows:
occurred in Pinal County, Arizona, and within the District of Arizona.
alleged in the complaint. Plaintiff and all named defendants reside in Pinal County, Arizona, and
and laws, the factual allegations in the numbered paragraphs of the complaint fail to state a cause
Jurisdiction, standing and venue
Although plaintiff attempts to allege a cause of action under the United States Constitution
These defendants deny that this Court has subject matter to hear and decide the matters
For their answer to Mark E. Dixon's complaint against them, the Pinal County Defendants, state
of action against these defendants upon which relief can be granted. The complaint's factual
2.
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within the District of Arizona. The acts or omissions of all of the parties alleged in the complaint
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28Dixon v. Pinal County, et al
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Case 2: 10-cv-00325-DKD Document 11 Filed 03/08/10 Page 2 of 3
allegations allege neither a specific constitutional violation nor a violation of any clearly
established right caused by these defendants required to invoke this Court's jurisdiction.
3. Plaintiff has filed a similar lawsuit in this Court against several Pinal County Sheriffs
deputies in their individual capacities arising out of the same issue of the ownership and right to
possession of a dog. That matter isDixon v. Clark, et. ai, Case Number CIV 092650 PHX SRB.
4. Defendants deny the allegations in numbered paragraphs 2, 3, 4 and 5 based on a lack of
knowledge or information upon which to form an opinion as to their veracity.
5. Defendants admit that Pinal County is a political subdivision of the State of Arizona that
has legal authority to sue and be sued. Defendants deny the rest of the allegations in numbered
paragraph 6.
6. Defendants admit the parts of the allegations in numbered paragraphs 7, 8, 9, 10 and II
that allege that each named defendant is the current elected official serving in that capacity.
Defendants deny the rest of the allegations in those numbered paragraphs.
7. These defendants lack sufficient, specific knowledge or information upon which to form
an opinion as to the veracity of the allegations contained in numbered paragraphs 12 through 22
and therefore deny them. Defendants deny every other allegation in the complaint not
specifically admitted herein.
8. In this matter, this Court lacks jurisdiction to "sentence" defendants under 42. U.S.C. §
1988, as requested in the prayer for relief and that part of the prayer should be stricken.
9. The entire complaint, if true, fails to state a claim against these defendants upon which
relief can be granted.
Having answered each numbered paragraphs of the complaint, Defendants pray for relief
as follows:
That Plaintiff take nothing from Defendants.
Dixon v. Pinal County, et al 2
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Case 2:10-cv-00325-DKD Document 11 Filed 03/08/10 Page 3 of 3
That the complaint against Defendants be dismissed for Plaintiffs failure to state a claim
against Defendants upon which relief can be granted.
For Defendants' costs incurred.
For such as other relief as is just as to Defendants Goode and LeBlanc.
Dated this 8th day of March, 20 IO.
lsi Joe A. Albo--------Joe A. AlboDeputy County Attorney, Civil DivisionAttorney for the County Defendant
ORIGINAL filed electronically with the Clerk of the Court of theDistrict of Arizona this 8th day of March,2010.
COPY of the foregoing mailed this 8th day of March, 2010, to:
Mark E. DixonP.O. Box 12695Casa Grande, Arizona 85130Plaintiff
Dixon v. Pinal County, et al 3
MOTION - 1
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William J. Pearlman SBN # 003990
Law Offices of William J. Pearlman
1237 South Val Vista Drive, Suite 218
Mesa, Arizona 85204
Phone: 480-396-0681
Fax: 480-396-0532
Email: [email protected]
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
MARK E. DIXON,
Plaintiff,
vs.
1. PINAL COUNTY, a Political Subdivision ;
2. JAMES WALSH, Pinal County Attorney,
In his Official Capacity;
3. PAUL BABEU, Pinal County Sheriff,
In his Official Capacity;
4. PETE RIOS, Pinal County Supervisor,
In his Official Capacity;
5. BRYAN MARTYN, Pinal County Supervisor,
In his Official Capacity;
6. DAVID SNIDER, Pinal County Supervisor,
In his Official Capacity;
et. al.
DEFENDANTS,
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Case No.: CIV 2010-0325 PHX DGC
MOTION FOR SUMMARY JUDGMENT AS
TO LIABILITY PER RULE 56,
FEDERAL RULES OF CIVIL
PROCEDURE
Case 2:10-cv-00325-DGC Document 33 Filed 07/16/10 Page 1 of 5
MOTION - 2
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Pursuant to Rule 56, Federal Rules of Civil Procedure,
Plaintiff, MARK E. DIXON, through undersigned counsel, hereby
moves for judgment as to the issue of liability.
This motion is based upon the attached Investigation of the
Professional Standards Unit, Pinal County Sheriff’s Office by
Sergeant Wayne Cashman, PCSO dated February 18, 2010, and just
disclosed to Plaintiff July 9, 2010. Exhibit 1
FACTS
The salient facts as found by the PCSO investigation are as
follows:
1. Plaintiff had possession of his dog, Shiloh, on December
2, 2010.
2. Officers of the PCSO: Sgt. LeBlanc, Detectives Goode and
Pile, employees of Defendants, stopped Plaintiff in his
vehicle, under color of law, surrounded him, and demanded
possession of the dog from Plaintiff.
3. That Plaintiff, surrounded by the 3 armed officers,
surrendered his dog.
4. That the officers did not have in their possession, had
not obtained and did not produce any order of Court,
either an order of the Pinal County Superior Court or a
search or arrest warrant issued by a neutral and detached
magistrate authorizing the seizure of this property from
Plaintiff.
5. That the Pinal County Sheriff, through his above
mentioned deputies, did then turn over the dog to a third
party, to wit: Carol Dixon, ex-wife of Plaintiff, again
without further order of court.
Case 2:10-cv-00325-DGC Document 33 Filed 07/16/10 Page 2 of 5
MOTION - 3
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MEMORANDUM
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Even accepting the purported justifications in the
Professional Standards Unit report, it is clear that the
officers of the Pinal County Sheriff’s Office
(hereinafter referred to as PCSO) seized private property
in possession of a citizen without order of court or due
process of law. While Defendants have argued as to the
ownership of the dog, Plaintiff suggests that is a ‘red
herring’ and that Federal Court is not the proper place
for a trial on that issue.
The Constitution of the State of Arizona Art. 2, §4
states:
No person shall be deprived of life, liberty, or
property without due process of law.
Article 2, §8 provides:
No person shall be disturbed in his private
affairs, or his home invaded, without authority
of law.
The PCSO report shows that these officers did not have
authority of law, what they had was the ‘color of
authority of law’ and semi-automatic weapons issued by
Pinal County and assigned to them by Defendant Babeu.
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It is suggested that the law is settled that law
enforcement officers do not have unbridled discretion to
seize property from persons under the jurisdiction of the
Constitution. This was apparently settled in Coolidge v.
New Hampshire 403 U.S. 443, 450-451, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971) where in a criminal matter the warrant
issued under the authority of state law by the State
Case 2:10-cv-00325-DGC Document 33 Filed 07/16/10 Page 3 of 5
MOTION - 4
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Attorney General was held to be insufficient since it was
not issued by a ‘neutral and detached’ magistrate. The
good faith of the officers is irrelevant. The officer’s
determination of ‘probable cause’ is similarly
irrelevant. The ownership of a dog even if it is at
issue in a post decree divorce case is a question for the
Pinal County Domestic Relations Court. If the Officers of
the Defendant Babeu thought they had sufficient evidence
of probable cause in a criminal matter, that question was
to be determined by a ‘neutral and detached’ magistrate.
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The Defendants failed to properly train or supervise
these officers from engaging in conduct that violated
Plaintiff’s rights even by their own investigation. The
Defendants failed to respond reasonably when informed by
their own investigation and continued the violation of
Plaintiff’s rights under color of state law. Plaintiff
suggests that there is no genuine issue of material fact
and that Plaintiff is entitled to summary judgment as to
liability as a matter of law and that trial should
proceed solely on the issue of damages.
Respectfully submitted this 16th of JULY, 2010
__________________________
WILLIAM J. PEARLMAN
Attorney at Law
Case 2:10-cv-00325-DGC Document 33 Filed 07/16/10 Page 4 of 5
MOTION - 5
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Copy of the foregoing
Mailed/faxed/delivered/eMailed this
16th of JULY, 2010 to:
Marc A. Appel, Esq. #010759
APPEL LAW OFFICE, P.L.L.C
10601 N. Hayden Rd, Suite I-103
Scottsdale, Arizona 85260
Attorney for Defendants Pinal County,
James Walsh, Paul Babeu, Pete Rios,
Bryan Martyn and David Snider
Case 2:10-cv-00325-DGC Document 33 Filed 07/16/10 Page 5 of 5
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MOTION - 1
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William J. Pearlman SBN # 003990
Law Offices of William J. Pearlman
1237 South Val Vista Drive, Suite 218
Mesa, Arizona 85204
Phone: 480-396-0681
Fax: 480-396-0532
Email: [email protected]
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
MARK E. DIXON,
Plaintiff,
vs.
1. PINAL COUNTY, a Political Subdivision ;
2. JAMES WALSH, Pinal County Attorney,
In his Official Capacity;
3. PAUL BABEU, Pinal County Sheriff,
In his Official Capacity;
4. PETE RIOS, Pinal County Supervisor,
In his Official Capacity;
5. BRYAN MARTYN, Pinal County Supervisor,
In his Official Capacity;
6. DAVID SNIDER, Pinal County Supervisor,
In his Official Capacity;
et. al.
DEFENDANTS,
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Case No.: CIV 2010-0325 PHX DGC
MOTION IN LIMINE
Case 2:10-cv-00325-DGC Document 36 Filed 07/29/10 Page 1 of 6
MOTION - 2
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Plaintiff, MARK E. DIXON, through undersigned counsel,
hereby requests the court in Limine to not allow the Defendants
to present evidence regarding certain matters listed below as
such are not relevant to the cause of action, not material to
the issues of law, and in the interests of due process and
judicial economy.
FACTS
The police reports and Professional Standards unit
investigation makes it clear that the dog was in Plaintiff’s
possession when he was stopped by the deputies of Defendant
Sheriff under color of state law allegedly investigating an
improper turn signal: a Lieutenant, two detectives and a patrol
officer for one turn signal. The police reports and Professional
Standards unit investigation makes it clear that the dog was
taken into possession by the deputies without a warrant or other
indicia of a court order. The police reports and Professional
Standards unit investigation makes it clear that the dog was not
taken as evidence but was turned over to the ex-wife Carol
Dixon, who was their complainant. The police reports and
Professional Standards unit investigation admit that no criminal
complaint was ever issued nor was a request for a complaint even
made to the office of Defendant County Attorney, James Walsh.
The investigation of the Sheriff’s Officer Professional
Standards Unit was conducted by Sergeant Cashman. That
investigation was completed February 18, 2010. It was never
provided to Defendant’s counsel but was discovered by the
Plaintiff after a second Freedom of Information Act request on
July 9, 2010. The report was then forwarded by Counsel for the
Plaintiff to Counsel for the Defendants.
Case 2:10-cv-00325-DGC Document 36 Filed 07/29/10 Page 2 of 6
MOTION - 3
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1
OWNERSHIP OF THE DOG
The Defendants have given notice that they intend to
litigate the ownership of the dog, Shiloh. In absence of a
search warrant, arrest warrant or a judicial determination of
ownership, the seizure of this personal property is the issue,
and the ownership of the dog is irrelevant. It was in
Plaintiff’s possession.
While he can prove ownership, where is the actual
relevance? The dog is not contraband, it is personal property.
The law of the State of Arizona is clear:
No person shall be deprived of life liberty or
property without due process of law.
Arizona Constitution, Article 2, Section 4
Due process of law is not the opinion of the employees of
the Defendant Sheriff. It is the responsibility of the employees
of the Defendant Sheriff to follow the law of the State of
Arizona. It is their sworn duty.
The ownership of the dog was then an issue for the Courts,
not the deputies of the Defendant, Sheriff.
The Sheriff is not constitutionally allowed to redistribute
property within the State of Arizona without due process of law.
The Sheriff’s own investigation disclosed this. The Sheriff by
not acting after his own investigation, and not following the
law and the Arizona Constitution committed an act in furtherance
of this violation of Plaintiff’s rights. The report of the
Professional Standards Unit is merely laughable and an
indication of how much ‘callous indifference’ to the
constitutional rights of the Plaintiff permeates the Office of
the Sheriff of Pinal County. As the Court said in Comfort v.
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MOTION - 4
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Town of Pittsfield, 924 F. Supp 1219, 1231 (U.S.D.C. Maine,
1996):
Supervisory personnel are liable under § 1983, upon a
showing of a constitutional violation, when: (1) the
supervisor's conduct or inaction amounts to either
deliberate, reckless or callous indifference to the
constitutional rights of others, and (2) an affirmative
link exists between the street-level constitutional
violation and the acts or omissions of the supervisory
officials. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553,
562 (1st Cir.1989); Lipsett v. University of Puerto Rico,
864 F.2d 881, 902 (1st Cir.1988)
Whereby, since the facts are clear that the property, the
dog, was in Plaintiff’s possession, that there was no court
order determining ownership in any other person, then it should
not be relevant or material here to take valuable court time to
prove ownership of the dog under these circumstances.
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Probable Cause
The Defendants have given notice that they will present
evidence regarding their belief in the existence of ‘probable
cause’ to believe that the dog was stolen by Plaintiff from his
ex-wife.
In doing so they ignore the applicable statute, ARS §11-
1010, which provides that the owner of a dog is determined by
the anti-rabies vaccination certificate which clearly stated
Plaintiff’s ownership.
However, the existence of ‘probable cause’ in the mind of
the deputies of Defendant Sheriff is similarly irrelevant and
immaterial to this trial. The ‘probable cause’ for the seizure
of evidence in a criminal matter when it is not ipso facto
contraband, is a matter to be determined, not by the officers of
the investigating agency, but by the Courts. Officers cannot
take personal property which is not contraband without a search
Case 2:10-cv-00325-DGC Document 36 Filed 07/29/10 Page 4 of 6
MOTION - 5
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warrant issued by a ‘neutral and detached’ magistrate. See
Coolidge v. New Hampshire 403 U.S. 443, 450-451, 91 S.Ct. 2022,
29 L.Ed.2d 564 (1971)
The existence of ‘probable cause’ in the mind of the
deputies of the Defendant is irrelevant to this cause of action.
‘Probable cause’ is an issue for the Courts. It is one of our
most cherished liberties. The Defendant Sheriff, a sworn law
enforcement agent, violated the Constitutional rights of the
Plaintiff when he was advised of the facts through his own
investigation, and then either promoted the cover-up or was so
‘callously indifferent’ that he failed to act
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Good Faith
The Defendants have given notice that they will present
evidence regarding their ‘good faith’ belief in the claim of
ownership of the dog by the ex-wife, Carol Dixon.
The ‘good faith’ of the deputies of Defendant Sheriff is
only relevant if they had relied upon a search warrant or other
indicia of authority which was later overturned or proven to
lack ‘probable cause.’
The Defendant Sheriff’s deputies admit that they lacked a
warrant but want to claim they acted in ‘good faith.’ Good Faith
is irrelevant to seizures without a warrant. United States v.
Winsor, 846 F. 2d 1569, 9th Cir. 1987
The state of mind of the acting officers is irrelevant. The
Defendant Sheriff knew or should have known after his own
investigation in February, 2010 that this taking of property and
re-distribution of wealth by his deputies was without legal
authority. Sheriff Babeu then failed to act, or exhibited
‘calloused indifference’ to Plaintiff’s rights when so advised,
and in so doing furthered the violation of Plaintiff’s rights.
Case 2:10-cv-00325-DGC Document 36 Filed 07/29/10 Page 5 of 6
MOTION - 6
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Even the Defendant Sheriff’s alleged ‘good faith’ is no defense.
He has an obligation, a sworn duty to uphold the law, and he
failed to act and apparently attempted to cover-up the facts of
this matter.
CONCLUSION
Plaintiff requests that the Court rule in Limine that the
Defendant’s may not present evidence as to the following:
1. Ownership of the dog,
2. Probable cause of the deputy sheriffs to believe
the Dog was stolen, and
3. Good Faith of the deputy sheriffs, in the absence
of a proper judicial warrant.
Respectfully submitted this 29th of JULY, 2010
/ s /
__________________________
WILLIAM J. PEARLMAN
Attorney at Law
Original of the foregoing electronically filed
This 29th day of July, 2010 to:
United States District Court
District of Arizona
Clerk of Court
401 West Washington
Phoenix, Arizona 85003
Copy of the foregoing
Mailed/faxed/delivered/eMailed this
29th of JULY, 2010 to:
Marc A. Appel, Esq. #010759
APPEL LAW OFFICE, P.L.L.C
10601 N. Hayden Rd, Suite I-103
Scottsdale, Arizona 85260
Attorney for Defendants Pinal County,
James Walsh, Paul Babeu, Pete Rios,
Bryan Martyn and David Snider
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MOTION - 1
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William J. Pearlman SBN # 003990
Law Offices of William J. Pearlman
1237 South Val Vista Drive, Suite 218
Mesa, Arizona 85204
Phone: 480-396-0681
Fax: 480-396-0532
Email: [email protected]
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
MARK E. DIXON,
Plaintiff,
vs.
1. PINAL COUNTY, a Political Subdivision ;
2. JAMES WALSH, Pinal County Attorney,
In his Official Capacity;
3. PAUL BABEU, Pinal County Sheriff,
In his Official Capacity;
4. PETE RIOS, Pinal County Supervisor,
In his Official Capacity;
5. BRYAN MARTYN, Pinal County Supervisor,
In his Official Capacity;
6. DAVID SNIDER, Pinal County Supervisor,
In his Official Capacity;
et. al.
DEFENDANTS,
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Case No.: CIV 2010-0325 PHX DGC
ACCEPTANCE OF
OFFER OF JUDGMENT
Case 2:10-cv-00325-DGC Document 44 Filed 08/26/10 Page 1 of 2
MOTION - 2
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Plaintiff, MARK E. DIXON, through undersigned counsel, to
the extent it is legally possible, accepts the Offer of Judgment
offered by Defendant Pinal County, pursuant to Rule 68, Federal
Rules of Civil Procedure.
Respectfully submitted this 26th of August, 2010
/ s /
__________________________
WILLIAM J. PEARLMAN
Attorney at Law
Attorney for Plaintiff Mark Dixon
Original of the foregoing electronically filed
This 26th day of August, 2010 to:
United States District Court
District of Arizona
Clerk of Court
401 West Washington
Phoenix, Arizona 85003
Copy of the foregoing
Mailed/faxed/delivered/eMailed this
26th of August, 2010 to:
Marc A. Appel, Esq. #010759
APPEL LAW OFFICE, P.L.L.C
10601 N. Hayden Rd, Suite I-103
Scottsdale, Arizona 85260
Attorney for Defendants Pinal County,
James Walsh, Paul Babeu,
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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Mark E. Dixon,
Plaintiff, vs. Pinal County, a political subdivision; James Walsh, Pinal County Attorney, in his official capacity; and Paul Babeu, Pinal County Sheriff, in his official capacity,
Defendants.
No. CV-10-325-PHX-DGC ORDER
Plaintiff Mark Dixon claims to be the sole and lawful owner of an Australian
shepherd named Shiloh. He alleges that Pinal County sheriff deputies wrongfully seized
Shiloh and turned the dog over to his ex-wife. He has brought suit against the County
itself, County Attorney James Walsh, and Sheriff Paul Babeu for allegedly having failed
to investigate, prosecute, and make arrests in the matter. Doc. 1. The amended
complaint purports to assert eight separate counts (Doc. 60 ¶¶ 11-18), but those “counts”
consist of the “statement of facts” (id. at 3 & ¶ 19) supporting unspecified civil rights
claims under 42 U.S.C. § 1983 (id. ¶ 5). Liberally construed, the complaint asserts
constitutional violations of due process and equal protection of the law. Plaintiff seeks
declaratory and injunctive relief. Id. at 1, 6-8.
The parties have filed motions for summary judgment. Docs. 98, 107. The
motions are fully briefed. Docs. 103, 106, 112. Oral argument has not been requested.
For reasons stated below, summary judgment will be granted in favor of Defendants.
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I. Summary Judgment Standard.
A principal purpose of summary judgment is to dispose of factually or legally
unsupported claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). A party
seeking summary judgment “bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Summary
judgment is appropriate if the evidence, viewed in the light most favorable to the
nonmoving party, shows “that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Only
disputes over facts that might affect the outcome of the suit will preclude the entry of
summary judgment, and the disputed evidence must be “such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
II. Discussion.
Plaintiff contends that the following undisputed facts entitle him to summary
judgment: that deputies seized Shiloh and gave the dog to a third-party without lawful
authority and while acting under color of state law, that the County received a notice of
claim detailing the facts alleged by Plaintiff, that Plaintiff has the constitutional right to
not be deprived of property without due process and to not be denied equal protection
under the law, and that the County Attorney and Sheriff have a sworn duty to protect
constitutional rights. Docs. 98 at 2, 106 ¶¶ 1-6, 108 at 2. Defendants argue, correctly,
that Plaintiff has no constitutional right to require the County Attorney or the Sheriff to
investigate a particular matter, to prosecute or arrest any individual, or to even discipline
subordinates for alleged misconduct. Doc. 103 at 4. Because Defendants have been sued
in their official capacities (Doc. 60 at 1), liability will lie under § 1983 only if Plaintiff
shows that his alleged constitutional injury “was caused by employees acting pursuant to
an official policy or ‘longstanding practice or custom,’ or that the injury was caused or
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ratified by an individual with ‘final policy-making authority.’” Chudacoff v. Univ. Med.
Ctr. of S. Nev., --- F.3d ----, 2011 WL 2276774, at *6 (9th Cir. June 9, 2011) (quoting
Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008)); see Monell
v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978); City of Canton v. Harris, 489 U.S.
378, 385 (1989).
Plaintiff can show neither. He has identified no policy or custom of Defendants as
the “moving force” behind his alleged constitutional injuries. Monell, 436 U.S. at 694;
see Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997); Polk County v. Dodson,
454 U.S. 312, 326 (1981); Galen v. Cnty. of L.A., 477 F.3d 652, 667 (9th Cir. 2007). Nor
has he presented evidence showing that Defendants ratified the alleged misconduct on the
part of the deputies.
Defendants’ inaction, standing alone, is not enough to create a triable issue.
Ratification is used as a theory of § 1983 liability where “an unconstitutional policy is
established by the post hoc ratification of prior actions.” Lancaster v. Carey, No. CIV S-
08-0051 LKK GGH P, 2011 WL 2198313, at *14 (E.D. Cal. June 6, 2011) (emphasis in
original). Stated differently, “ratification simply makes clear that the policy was in effect
at the time of the incident and was the ‘moving force’ for the unconstitutional act.” Id.
The ratification theory cannot be so stretched to a situation where, as in this case,
“no policy is at issue, but simply a one-time event that had been completed at the time the
complaint was made.” Id.; see Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992)
(making clear that to hold municipalities liable under § 1983 for failing to overrule the
unconstitutional acts of subordinates “would simply smuggle respondeat superior
liability into [§] 1983 law” resulting in an impermissible “end run around Monell”);
Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983) (noting that a “single act or
isolated incidents are normally insufficient to establish supervisory inaction upon which
to predicate § 1983 liability”); Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 848
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(5th Cir. 2009) (noting that the theory of ratification is limited in § 1983 cases to
“extreme factual circumstances”).
Plaintiff asserts that Defendants have provided him no “post deprivation relief as
required by their respective oaths of office and statutory duties, thereby denying [him]
his Constitutional right to Due Process and Equal Protection of the law.” Doc. 60 ¶ 13.
Defendants argue, correctly, that because Arizona law provides adequate post-deprivation
remedies (including tort actions for replevin and trespass to chattels), no § 1983 claim
will lie. Docs. 103 at 6, 112 at 1-2; see Hudson v. Palmer, 486 U.S. 517, 533 (1984)
(“an unauthorized intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is
available”); Brogan v. San Mateo County, 901 F.2d 762, 764 (9th Cir. 1990) (“When
state remedies are adequate to protect an individual’s procedural due process rights, a
section 1983 action alleging a violation of those rights will not stand.”).
III. Conclusion.
In summary, Plaintiff has identified no specific policy or custom that arguably
violated his rights under the Fourteenth Amendment. See Polk, 454 U.S. at 326. Nor has
he produced evidence of “affirmative or deliberate conduct by [Defendants] that may be
said to have ratified” the actions taken by the deputies. Gillette, 979 F.2d at 1348.
Plaintiff asserts that Defendants’ purported failure to support and defend the Constitution
and otherwise uphold his civil rights “constitutes [an] unconstitutional custom or policy
by the County” (Doc. 110 at 9), but the mere failure to protect an individual’s
constitutional rights is not sufficient to establish municipal liability under § 1983. See
Myers v. City of Madera, No. 1:10-CV-01398 AWI JLT, 2011 WL 2361628, at *4 (E.D.
Cal. June 9, 2011) (citing Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). The
Court will grant summary judgment in favor of Defendants. See Jackim v. City of
Brooklyn, No. 1:05 cv 1678, 2007 WL 893868, at *20 (N.D. Ohio Mar. 22, 2007)
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(granting summary judgment on § 1983 claims where a police officer engaged in a
“single incident of wrongdoing” and mere inaction on the part of the city was not enough
to establish municipal liability); Ostroski v. Town of Southold, 443 F. Supp. 2d 325, 346
(E.D.N.Y. 2006) (granting summary judgment on municipal liability claim where the
plaintiff failed to adduce any evidence that the alleged unconstitutional acts committed by
the police officers “were connected to any policy, custom or practice beyond mere
speculation and conjecture”).
IT IS ORDERED:
1. Plaintiff’s motion for summary judgment (Doc. 98) is denied.
2. Defendants’ cross-motion for summary judgment is granted.
3. The Clerk is directed to enter judgment accordingly.
Dated this 7th day of July, 2011.
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