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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. FACTS This matter comes before the Court on Defendants Robert and Brenda Halliday’s Motion for Judgment on the Pleadings. Dkt. 41. The Court has reviewed the pleadings filed in favor and opposition to the motion and the remainder of the record herein. I. FACTS AND PROCEDURAL HISTORY v. ROBERT HALLIDAY, Individually and in his Official Capacity as Director of DPS; JANE DOE HALLIDAY, as Husband and Wife; PENNIE GILLETTE-STROUD, in her Official and Individual Capacity; JOHN DOE STROUD, as Husband and Wife; LAURIE GRIFFITH, in her Official and Individual Capacity; JOHN DOE GRIFFITH, husband and Wife; AMI HALLIDAY and JOHN DOE HALLIDAY, as Husband and Wife; JOHN DOES I-X; ABC PARTNERSHIPS I-X; and BLACK CORPORATIONS I-X, Defendants. GEOFFREY JACOBS, Case No. CV 10-01493 PHX RJB Plaintiff, ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

According to the Complaint, Plaintiff was hired as a police officer with the Arizona Department of
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Public Safety (“DPS”) in 2002. Dkt. 1, at 4. In the fall of 2008, Plaintiff alleges that he began a brief dating/sexual relationship with Defendant Ami Halliday. Id. He alleges that he ended the affair on November 5, 2008. Id. Plaintiff asserts that when he ended the relationship, Ms. Halliday stated that he would “live to regret this.” Id. Plaintiff asserts that on November 26, 2008, Defendant Robert Halliday contacted the DPS Office of Professional Standards (“OPS”) and “filed a false and malicious complaint against [Plaintiff] on behalf of his daughter, Ami Halliday.” Id. The Complaint alleges that at the time of he made the complaint, Robert Halliday was a retired from DPS. Id., at 4. He had been a Commander and had been in charge of the Arizona Counter Terrorism Task Force. Id., at 4 and 10. Robert Halliday has since been appointed Director of DPS. In any event, Plaintiff asserts that the Hallidays false and malicious allegations against [him] included allegations that [he] had secretly recorded him and Ami having sexual intercourse, that [Plaintiff’s] roommate, John Wright, had pointed a gun at Ami, that [Plaintiff] had posted nude photos of Ami online without her consent, and that [he] had possibly raped an ex-girlfriend, among other things. Id., at 4-5. The Complaint further asserts that after Robert Halliday submitted the Hallidays’ complaint

13 against Plaintiff with DPS, “DPS initiated a secret internal investigation against Jacobs.” Id., at 5. 14 Plaintiff claims that the “DPS OPS investigators spent the next several months serving as [Robert 15 Halliday’s] personal investigation squad bent on destroying Jacobs career.” Id. 16 Plaintiff asserts that the DPS OPS investigators, in turn, notified the Glendale Police Department 17 of these allegations, and placed the DPS OPS case on “criminal hold.” Id., at 5. He asserts that during 18 the course of the criminal investigation several of his constitutional rights were violated. Id. No criminal 19 charges were filed. Id., at 12. 20 Plaintiff asserts that once they knew that no criminal charges would be filed, DPS removed his 21 case from “criminal hold,” and conducted a computer forensic search of his personal computer hard drive 22 in June of 2009. Id., at 12. The Complaint asserts that: 23 24 25 26 27 28 DPS access to and subsequent computer forensic search of [Plaintiff’s] personal computer hard drive was an illegal search and seizure, in violation of [his] civil and constitutional rights. As a result of the illegal search and seizure, all of [his] private and confidential information, including personal health information and information protected by the attorney-client privilege, were illegally searched, seized, and examined by DPS. [his] privacy rights were thus violated. Id., at 12. Plaintiff states that the DPS investigators instituted new charges against him “based entirely on new evidence that DPS had unearthed during [their] illegal forensic search [and] seizure” of his computer

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and not on any of the Hallidays’ allegations. Id., at 13. On September 9, 2009, DPS terminated Plaintiff’s employment. Id., at 13. Plaintiff appealed his termination with the Law Enforcement System Council (“LEMSC”). Id., at 14. The LEMSC held a hearing, and on November 17, 2009, upheld the decision to terminate Plaintiff’s employment with DPS. Id. Plaintiff did not appeal the LEMSC’s decision to the Arizona state courts, but instead, filed suit in this Court. Plaintiff makes claims for violation of his right against unreasonable searches and seizures, his equal protection rights, and substantive and procedural due process rights via 42 U.S.C. § 1983. Dkt. 1. Plaintiff states that he makes those claims against “certain of the Defendants.” Id. Plaintiff makes claims for false light invasion of privacy, intentional infliction of emotional distress, defamation, and negligent supervision. Id. It does not appear that Plaintiff is asserting a negligent supervision claim against Robert Halliday because he was retired from DPS at the time of these events. Plaintiff seeks damages, attorneys’ fees and costs. Id. B. PROCEDURAL HISTORY

Plaintiff filed his Complaint on July 15, 2010. Dkt. 1. The Complaint alleges this Court has federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction under 28 U.S.C. § 1367 . On September 21, 2010, Defendants City of Glendale, Glendale Police Department, and Samantha Zaragoza were dismissed. Dkt. 19. On November 5, 2010, pursuant to the oral stipulation of the parties, Defendant Arizona Department of Public Safety was dismissed. Dkt. 36. The State Defendants motion for a judgment on the pleadings was granted as to all Plaintiff’s claims against the State of Arizona and Plaintiff’s claims against DPS officials Gillette-Stroud and Griffith in their official capacities pursuant to the Eleventh Amendment. Dkt. 55. The State Defendants’ motion for judgment on the pleadings was granted as to Plaintiff’s constitutional claims asserted against DPS officials Gillette-Stroud and Griffith because the claims are barred by res judicata. Id. To the extent that his state law claims against DPS officials Gillette-Stroud and Griffith are based on claims that were or could have been litigated in the appeal with the LEMSC, they are barred by res judicata. Id. Plaintiff sought, and was given an opportunity to amend his complaint to include more allegations against Gillette-

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Stroud and to provide the parties with a more definite statement in order to specify the dates he became aware of his state law claims. Id. C. PENDING MOTION

Defendants Robert and Brenda Halliday now move the Court for a judgment on the pleadings on Plaintiff’s constitutional claims against Robert Halliday, arguing that Plaintiff has failed to allege sufficient facts to show that Robert Halliday was a state actor. Dkts. 41 and 49. The Hallidays also move for a judgment on the pleadings on Plaintiff’s false light invasion of privacy, intentional infliction of emotional distress, and defamation claims. Id. They argue that Robert Halliday is afforded an absolute privilege against suit under Ledvina v. Cerasani, 213 Ariz. 569 (App. 2006). Id. Plaintiff responds, arguing that Robert Halliday acted under the color of state law and so judgment on the pleadings should not be granted on his § 1983 claims. Dkt. 48. Plaintiff argues that the Hallidays’ reliance on Ledvina is misplaced because Ledvina only protects reporting crimes to the police. He argues that Robert Halliday contacted the Office of Professional Standards, and not the Glendale Police Department, who would have jurisdiction to investigate the allegations that involved crimes. Id. Plaintiff argues that judgment on the pleadings should not be granted on his state law claims against Robert Halliday. Id. II. A. DISCUSSION

MOTION TO DISMISS/FOR JUDGMENT ON THE PLEADINGS STANDARD

Under Fed. R. Civ. P. 12 (c), “after the pleadings are closed- but early enough not to delay trial- a party may move for a judgment on the pleadings.” Federal Rule of Civil Procedure 8(a)(2) provides that a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 12 (b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Dismissal of a complaint may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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555 (2007) (internal citations omitted). Accordingly, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing Twombly, at 570). A claim has “facial plausibility” when the party seeking relief “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. First, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. Secondly, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the pleader to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). If a claim is based on a proper legal theory but fails to allege sufficient facts, the plaintiff should be afforded the opportunity to amend the complaint before dismissal. Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983). If the claim is not based on a proper legal theory, the claim should be dismissed. Id. “Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Moss v. U.S. Secret Service, 572 F.3d 962, 972 (9th Cir. 2009). B. STATE ACTION

In order to recover under § 1983 for conduct by Defendant Robert Halliday, Plaintiff “must show that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” Caviness v. Horizon Community Learning Center, Inc., 590 F.3d 806, 812 (9th Cir. 2010) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “State action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 955 (9th Cir. 2008) (en banc) (internal citations omitted). When addressing whether a private party acted under color of law, we therefore start with the presumption that private conduct does not constitute governmental action. In order for private conduct to constitute governmental action, “something more” must be present. Courts have used four different factors or tests to identify what constitutes “something
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more”: (1) public function, (2) joint action, (3) governmental compulsion or coercion, and (4) governmental nexus. Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835-36 (9th Cir. 1999)(internal citations

3 and quotations omitted). 4 Plaintiff does not allege that Robert Halliday was performing a public function such that his 5 actions could be treated as the State itself. He does not allege that Robert Halliday was under government 6 compulsion or coercion or that there was a governmental nexus. 7 In response to the motion, Plaintiff argues that Robert Halliday “was a willful participant in joint 8 action with the State or its agents and corruptly conspired with State officials in connection with conduct 9 that violates 42 U.S.C. § 1983.” Dkt. 48. “A private individual may be liable under § 1983 if she 10 conspired or entered joint action with a state actor.” Crowe v. County of San Diego, 608 F.3d 406, 440 11 (9th Cir. 2010) (citing Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.2002)). To establish liability for a 12 conspiracy between a private actor and a state actor, the plaintiff must show “an agreement or meeting of 13 the minds to violate constitutional rights, and to be liable, each participant in the conspiracy need not 14 know the exact details of the plan, but each participant must at least share the common objective of the 15 conspiracy.” Id. (internal citations omitted). 16 Plaintiff has failed to allege sufficient facts to maintain a § 1983 action against Robert Halliday. 17 He was a private party at the time the report was made. He had retired from DPS. His later return to 18 work there is not material. Plaintiff has failed to allege an agreement or meeting of the minds between 19 Robert Halliday and the DPS officials (or anyone else) to violate Plaintiff’s constitutional rights. The 20 state-action element in § 1983 “excludes from its reach merely private conduct.” Caviness, at 812 (citing 21 Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). The Halliday’s motion for a judgment on 22 the pleadings as to Plaintiff’s constitutional claims, asserted against them through § 1983 should be 23 granted, and the claims dismissed. 24 C. 25 In light of the above ruling, on or before March 21, 2011, Plaintiff should be ordered to show 26 cause, if any he has, why the federal constitutional claims, asserted against Ami Halliday through § 1983 27 should not be dismissed. Plaintiff’s pleading, if any, should be limited to five pages. 28 ORDER FOR PLAINTIFF TO SHOW CAUSE, IF ANY HE HAS

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D.

STATE LAW CLAIMS, IMMUNITY AND SUPPLEMENTAL JURISDICTION

The federal claims asserted against the State Defendants are barred by res judicata. Dkt. 55. Further, the Hallidays’ motion for a judgment on the pleadings should be granted on Plaintiffs’ federal claims against Robert Halliday because there is no allegation sufficient to find him a state actor. Plaintiff has been ordered to show cause why the federal claims should also not be dismissed against Ami Halliday. The parties should be aware that the Court will likely decline to exercise supplemental jurisdiction over the state law claims if no federal question remains. Pursuant to 28 U.S.C. § 1367 (c), district courts may decline to exercise supplemental jurisdiction over a state law claims if (1) the claims raise novel or complex issues of state law, (2) the state claims substantially predominate over the claim which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. “While discretion to decline to exercise supplemental jurisdiction over state law claims is triggered by the presence of one of the conditions in § 1367 (c), it is informed by the values of economy, convenience, fairness, and comity.” Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997)(internal citations omitted). Although “it is generally within a district court's discretion either to retain jurisdiction to adjudicate the pendent state claims or to remand them to state court,” Harrell v. 20th Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991) in the interest of fairness, the parties should be given an opportunity to be heard on whether the Court should decline to exercise supplemental jurisdiction over the state law claims. Parties’ briefs, if any, are due on or before March 22, 2011. Parties briefs should not exceed three pages. In the meantime, Defendants Robert and Brenda Halliday’s motion for a judgment on the pleadings regarding whether Mr. Halliday’s report provides him an absolute privilege against the state law claim (Dkt. 41), should be denied without prejudice, but may be refiled if the Court ultimately decides to exercise supplemental jurisdiction. /

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III. Therefore, it is hereby, ORDERED that:

ORDER

Defendants Robert and Defendant Brenda Halliday’s Motion for Judgment on the Pleadings (Dkt. 41) is • GRANTED as to Plaintiff’s federal constitutional claims, asserted against Robert Halliday pursuant to 42 U.S.C. § 1983, because he failed to allege sufficient facts to find state action; DENIED WITHOUT PREJUDICE as to Plaintiff’s state law claims. On or before March 21, 2011, Plaintiff is ORDERED TO SHOW CAUSE, if any he has, why the federal constitutional claims, asserted against Ami Halliday through § 1983 should not be dismissed. Plaintiff’s pleading, if any, should be limited to five pages. On or before March 22, 2011, the parties are ORDERED TO SHOW CAUSE, if any they have, why this Court should not decline to exercise supplemental jurisdiction on the state law claims, if all the federal claims are dismissed. The parties’ pleadings, if any, should be limited to three pages. The Clerk of the Court is directed to send uncertified copies of this Order to all counsel of record

17 and to any party appearing pro se at said party’s last known address. 18 19 20 21 22 23 24 25 26 27 28 DATED this 8th day of March, 2011.

A
Robert J Bryan United States District Judge

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