Gesell v. Cottonwood, City of

1 WO

2

3

4

5

6 IN THE UNITED STATES DISTRICT COURT

7 FOR THE DISTRICT OF ARIZONA

8

9 Stephen Gesell, No. CV-24-08090-PCT-DWL

10 Plaintiff, ORDER

11 v.

12 City of Cottonwood, et al.,

13 Defendants.

14

15 Stephen Gesell (“Plaintiff”), the former Chief of Police of the City of Cottonwood

16 (“Cottonwood”), has sued Cottonwood and assorted current and former Cottonwood

17 officials (collectively, “Defendants”) for wrongful termination, defamation, due process

18 violations, and various statutory infractions. (Doc. 6.) Now pending before the Court is

19 Defendants’ motion to dismiss and to strike certain allegations. (Doc. 13.) For the reasons

20 that follow, Defendants’ motion is granted and Plaintiff is granted leave to amend.

21 RELEVANT BACKGROUND

22 I. Factual Allegations

23 The following facts, presumed true, are derived from Plaintiff’s operative pleading,

24 the First Amended Complaint (“FAC”), and the documents attached thereto. (Doc. 6.)

25 Plaintiff is the former Cottonwood Chief of Police. (Id. ¶¶ 69, 82.)

26 At all times relevant to this litigation, Tim Elinski (“Elinski”) was the Mayor of

27 Cottonwood, Jesus “Rudy” Rodriguez (“Rodriguez”) was the Deputy City Manager, Scotty

28 Douglass (“Douglass”) was the City Manager, Jennifer Winkler (“Winkler”) was the City

1 Attorney, Amanda Wilber (“Wilber”) was the City’s Human Resources Manager, and

2 Helaine Kurot (“Kurot”) was a City Council member. (Id. ¶¶ 3-8). These individuals will

3 be collectively referred to as the “Individual Defendants.”

4 “Beginning in May of 2023, [Elinski] and [Rodriguez] attempted to leverage an

5 Arizona Civil Rights Division discrimination report (‘ACRD Report’), in order to

6 disparage and harm the Cottonwood Police Department and [Plaintiff] in part by

7 manipulating the City Council.” (Id. ¶ 11.) The ACRD Report concerned the conduct of

8 Plaintiff and other Cottonwood officials toward non-party Kiedi Dever (“Detective

9 Dever”). (Id. at 28-37.) Detective Dever filed a charge of discrimination against

10 Cottonwood, in part because Plaintiff reassigned her to the position of patrol officer

11 following a five-month extended leave of absence. (Id. at 36-37 n.2.) “Steve Horton, the

12 former City Attorney, had sought direction from [Plaintiff], and they had agreed to enter

13 conciliation.” (Id. ¶ 12). Nevertheless, “[t]he ACRD Report was put on the [City

14 Council’s] May 9, 2023 agenda without [Plaintiff’s] knowledge or input” (id.) and “Elinski

15 had instructed Defendant Rodriguez to exclude [Plaintiff] from the May 9, 2023 meeting”

16 (id. ¶ 13). “Rodriguez sent an email to [Wilber] one hour prior to the meeting and

17 instructed her to attend and to tell [Plaintiff] he was not permitted in the meeting.” (Id.

18 ¶ 15.) However, before the meeting started, “Elinski asked [Plaintiff] if he would be

19 available to answer questions at the executive session . . . [and] misled [Plaintiff] and the

20 Council by acting as if he wanted [Plaintiff] to be included in the executive session.” (Id.

21 ¶ 16.) Ultimately, “[e]ven though there were protests of multiple Council members,

22 [Plaintiff] was not allowed to join.” (Id. ¶ 17.)

23 Plaintiff alleges that “[t]he Executive Session resulted in numerous statutory

24 violations due to the content of that session.” (Id. ¶ 30.) “[S]everal Cottonwood Police

25 Department sworn managers were discussed and maligned without cautionary restraint”

26 and “[t]he discussion ended with the assertion that the agency had cultural and behavioral

27 issues that necessitated corrective action.” (Id. ¶ 28.) Plaintiff alleges that, by having these

28 discussions at a closed meeting, “Defendants violated the laws on Executive Sessions by

1 going beyond what was listed in the agenda for all employees” and by discussing Plaintiff’s

2 employment while failing to provide him “with written notice” at least 24 hours before the

3 meeting. (Id. ¶¶ 100-01.) “The preclusion of [Plaintiff] from this session [also] eliminated

4 the ability for [Plaintiff] to challenge the false claims and correct the information discussed

5 during the meeting.” (Id. ¶ 29.)

6 “[A]fter the meeting, [Plaintiff] contacted Defendant Rodriguez to inquire about the

7 reason he was excluded” and “Defendant Rodriguez admitted he and Defendant Elinski

8 were attempting to influence the balance of the City’s elected body. Defendant Elinski

9 also admitted this plan in an email authored later that week stating he did not want

10 [Plaintiff] to ‘insert himself’ into the discussion, despite the fact that the session involved

11 the ACRD Report.” (Id. ¶¶ 17-18.)

12 On May 11, 2023, Plaintiff “was placed on administrative leave by Defendant

13 Rodriguez at the request of Defendant Elinski and it was later learned that Defendant

14 Elinski told Defendant Rodriguez to fire [Plaintiff]. No reason was listed for the

15 administrative leave at the time.” (Id. ¶ 19.) However, Kurot later told “Councilmember

16 Duvemay outside the normal process for Council meetings, that [Plaintiff] ‘threatened’

17 Defendant Rodriguez and Defendant Elinski and [Plaintiff] had ‘crossed the line.’” (Id.

18 ¶ 64.)

19 After being placed on administrative leave, Plaintiff received a Notice of

20 Investigation (“NOI”) from Cottonwood. (Id. at 45-46.) The NOI informed him that “[t]his

21 investigation relates to your alleged conduct on May 9, 2023” and “[y]ou are alleged to

22 have been hostile and aggressive when questioning Mr. Rodriguez about your exclusion”

23 from the City Council meeting. (Id. at 45.)

24 Cottonwood then hired a law firm, Osborn Maledon (“OM”), to investigate

25 Plaintiff’s conduct. (Id. ¶ 35.) During the investigation, Plaintiff “provided input which

26 was ignored,” including “a summary of the chronology of [relevant] events . . . and a list

27 of suggested questions relevant to an objective investigation.” (Id.) During severance

28 negotiations with Cottonwood, Plaintiff asked to see a copy of OM’s investigative report

1 but was informed by Cottonwood’s representative that “‘there is no report’ though it has

2 been determined that the investigation was completed weeks earlier.” (Id. ¶ 37.) “The

3 report that was eventually released . . . was not based on facts, clearly framing a false

4 narrative,” and “did not contain any just cause to terminate [Plaintiff].” (Id. ¶¶ 38-39.)

5 OM also failed to interview at least one important witness. (Id. ¶ 66.)

6 While these events were taking place, “Winkler recklessly sent [Plaintiff] the audio

7 of the May 9th Executive Session . . . . This disclosure resulted in Defendant Winkler

8 exposing the City to liability and likely violated A.R.S. § 38-510 (a), a class l

9 misdemeanor.” (Id. ¶¶ 31-32.) “[I]nstead of admitting to releasing the recording,

10 [Winkler] began to bully [Plaintiff] and his family about the disclosure and attempted to

11 conceal, minimize, and deflect her actions.” (Id. ¶ 30.)

12 On July 21, 2023, Plaintiff “filed a retaliatory complaint against Defendant Winkler

13 with the Human Resources Director, Defendant Wilber, and Defendant Douglass.” (Id.

14 ¶¶ 33, 87.) However, Plaintiff later “discovered that Defendant Douglass had altered [the]

15 complaint against Defendant Winkler by removing the ten-page email attachment and his

16 notations from a singular PDF document, rescanning the document, and then sending the

17 altered Complaint to the Council as if it were in the original form.” (Id. ¶ 41.) “Wilber

18 and Winkler were aware of the alteration and failed to notify the Council.” (Id. ¶ 96.)

19 On August 29, 2023, Plaintiff filed a second complaint against Douglass “about the

20 failure to address the complaint regarding Defendant Winkler and the discovery of

21 Defendant Douglass’ subsequent surreptitious alteration of the complaint.” (Id. ¶ 89.)

22 On September 7, 2023, about one week later, Plaintiff received a “letter of intent to

23 terminate” from Cottonwood. (Id. ¶ 61.) One of the reasons given for his termination was

24 the ACRD Report and “that [Plaintiff] ‘discriminated’ against a ‘female detective.’” (Id.

25 ¶¶ 52, 61.) However, “[t]he ACRD report was . . . not included in notice of investigation

26 nor mentioned as a concern in [OM’s] investigation or findings.” (Id. ¶ 68.) As a result,

27 Plaintiff “was not given an opportunity to respond or refute this false allegation prior to the

28 Notice of Intent to Terminate.” (Id. ¶¶ 62, 82.)

1 “At no time before or during the four months [Plaintiff] was on administrative leave

2 was the ACRD Report referenced as a concern.” (Id. ¶ 62.) Instead, Cottonwood’s

3 attorneys “repeatedly only referenced [Plaintiff’s] tone of voice when speaking to

4 Defendant Rodriguez as the justification for termination,” and one of Cottonwood’s

5 retained attorneys “repeatedly indicated [Plaintiff’s] role in the ACRD Report was based

6 entirely on an obscure ADA technicality.” (Id. ¶¶ 42, 63.)

7 On September 14, 2023, “Plaintiff was notified of his termination.” (Id. ¶ 69.)

8 “Douglass was the City Manager who terminated [Plaintiff] and stated it was his decision

9 because [Plaintiff] served at the pleasure of the ‘City Manager.’” (Id. ¶ 83.) “Pursuant to

10 A.R.S. § 38-1106, [Plaintiff] timely appealed the decision.” (Id. ¶ 69.) However,

11 “Douglass stated that [Plaintiff] was not entitled to an appeal because he was the Chief of

12 Police.” (Id. ¶ 70.)

13 Plaintiff alleges that “Wilber was fully aware Chief Gesell was being terminated for

14 false cause” even though “she herself concurred with the action that resulted in the ACRD

15 ADA technical violation along with the City Manager and attorneys. She was also aware

16 of the egregious procedural errors violating [Plaintiff’s] statutory rights,” but “[r]ather than

17 fulfill her role in protecting employee rights, [she] aided the other Defendants by helping

18 to facilitate [Plaintiff’s] wrongful termination.” (Id. ¶¶ 71-72.)

19 Plaintiff alleges the real reason he was terminated was in retaliation for reporting

20 statutory violations committed by Defendants. (Id. ¶¶ 75-76, 91.) “As a result of

21 Defendants’ actions, Plaintiff has been damaged. His ability to run for public office, obtain

22 employment in his field, or secure contracting work via his consulting business following

23 his highly successful 34-year law enforcement career has now been irreparably harmed due

24 to the actions of the Defendants.” (Id. ¶ 79.)

25 II. Procedural History

26 On April 3, 2024, Plaintiff filed a complaint in Yavapai County Superior Court.

27 (Doc. 1-1 at 3-27.)

28 On May 10, 2024, Defendants filed a notice of removal. (Doc. 1.) The sole

1 jurisdictional basis for removal was that the complaint asserted a federal claim under

2 42 U.S.C. § 1983. (Id. ¶ 5.) Due to the presence of federal-question jurisdiction over this

3 claim, Defendants asserted that the Court also “has supplemental jurisdiction over the state

4 law causes of action.” (Id.)

5 On May 22, 2024, after the parties met and conferred (Doc. 4), Plaintiff filed the

6 FAC. (Doc. 6.) It asserts two state-law claims against Cottonwood for wrongful

7 termination (Counts One and Two); a state-law claim against Cottonwood, Douglass,

8 Wilber, and Winkler for “Tampering With Public Records” (Count Three); a state-law

9 claim against all Defendants for violating Arizona’s “Open Meeting Laws” (Count Four);

10 a state-law claim against Kurot for defamation (Count Five); and a claim against all

11 Defendants except Kurot under 42 U.S.C. § 1983 (Count Six). (Id. ¶¶ 80-126.)

12 On May 30, 2024, Plaintiff moved to disqualify Defendants’ counsel. (Doc. 8.)

13 On June 10, 2024, Defendants filed the pending motion to dismiss. (Doc. 13.) The

14 Court then stayed the briefing schedule on the motion to dismiss pending the resolution of

15 the disqualification motion. (Doc. 16.)

16 On December 6, 2024, the Court denied the disqualification motion. (Doc. 17.) The

17 motion to dismiss later became fully briefed (Docs. 18, 19) and neither side requested oral

18 argument.

19 DISCUSSION

20 I. Count Six

21 The only federal claim asserted in the FAC is Count Six, which is denominated as

22 a “42 U.S.C. § 1983 Civil Rights violation including under Monell.” In Count Six, Plaintiff

23 alleges that all Defendants except Kurot violated his “constitutional rights under the United

24 States’ [sic] Constitution, Fourteenth Amendments [sic] and Ariz. Const. art. II, § 4 as to

25 procedural due process and substantive due process as well as violated his rights under

26 Arizona statutes as set forth herein. The conduct shocks the conscience depriving Plaintiff

27 of a property interest, employment, as well as violated procedural and statutory rights.”

28 (Doc. 6 ¶ 115.) Later, the FAC elaborates: “Defendants violated [Plaintiff’s] rights under

1 A.R.S. § 38-1101 et seq. by not providing him the required notice of the investigation, the

2 proper notice and ability to appear at the ‘Executive Session,’ the appeal remedy as

3 authorized by statute, and/or due process under state and/or federal law. They further

4 violated his rights when they failed to comply with A.R.S. § 38-431.03 by going beyond

5 the stated purpose and notice.” (Id. ¶ 119.)

6 Defendants move to dismiss Count Six on various grounds. (Doc. 13 at 8-22.)

7 Because, as discussed in later portions of this order, the propriety of this Court’s continued

8 exercise of jurisdiction over this action depends on the viability of Count Six, the analysis

9 begins there.

10 A. Legal Standard

11 Under Rule 12(b)(6), “to survive a motion to dismiss, a party must allege sufficient

12 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re

13 Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (cleaned up). “A claim

14 has facial plausibility when the plaintiff pleads factual content that allows the court to draw

15 the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

16 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll well-pleaded allegations of

17 material fact in the complaint are accepted as true and are construed in the light most

18 favorable to the non-moving party.” Id. at 1144-45 (citation omitted). However, the court

19 need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678-

20 80. Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by

21 mere conclusory statements, do not suffice.” Id. at 678. The court also may dismiss due

22 to “a lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th

23 Cir. 2015) (citation omitted).

24 B. Required Elements To Prevail On Count Six

25 To determine whether Count Six states a claim, it is necessary to identify what

26 Plaintiff must prove to prevail on Count Six. The FAC indicates that Count Six is a claim

27 premised on the violation of Plaintiff’s constitutional rights “to procedural due process and

28 substantive due process” (Doc. 6 ¶ 115) and Plaintiff confirms in his response brief that he

1 is pursuing both due-process theories (Doc. 18 at 9-12).

2 1. Procedural Due Process

3 In the FAC and again in his response to the motion to dismiss, Plaintiff sometimes

4 appears to suggest that if Defendants violated any state-law procedural requirements

5 related to his termination, it follows that he may pursue a claim against them under

6 42 U.S.C. § 1983 premised on the violation of his procedural due process rights. As

7 Defendants correctly note in their motion, this approach is misplaced. (See, e.g., Doc. 13

8 at 17 [arguing that “Plaintiff improperly conflates constitutional due process with the

9 procedural requirements of the POBOR” and that “state procedural requirements are not

10 synonymous with the protections of the Constitution”].)

11 “A procedural due process claim has two distinct elements: (1) a deprivation of a

12 constitutionally protected liberty or property interest, and (2) a denial of adequate

13 procedural protections.” Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017).

14 State law is relevant when it comes to the first element, as “[a] government

15 employee has a constitutionally protected property interest in continued employment when

16 the employee has a legitimate claim of entitlement to the job. Laws, rules or

17 understandings derived from independent sources such as state law create such claims of

18 entitlement.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993) (citation

19 omitted). See also Roybal, 871 F.3d at 931 (“Property interests are not created by the

20 Constitution, instead they are created and their dimensions are defined by existing rules or

21 understandings that stem from an independent source such as state law.”) (cleaned up);

22 United States v. Guillen-Cervantes, 748 F.3d 870, 872 (9th Cir. 2014) (“To state a prima

23 facie substantive or procedural due process claim, one must, as a threshold matter, identify

24 a liberty or property interest protected by the Constitution. The Constitution itself creates

25 no property interests; rather, such interests are created and their dimensions are defined by

26 existing rules or understandings that stem from an independent source such as state law.”)

27 (cleaned up). As discussed in more detail below, Defendants contend that Plaintiff lacked

28 any legitimate claim of entitlement to his job as Cottonwood’s Chief of Police because it

1 was an at-will position. Plaintiff’s theory is that the Arizona Peace Officer Bill of Rights

2 (“POBOR”) gave him a legitimate claim of entitlement to his position because the POBOR,

3 following a 2022 amendment by the Arizona legislature, precludes at-will employment

4 agreements for peace officers in Arizona.

5 Although state law provides an important role when evaluating the first element of

6 a procedural due process claim, the second element poses “a question of federal, not state,

7 law.” Roybal, 871 F.3d at 933. This is because “[f]ederal due process does not necessarily

8 entitle a plaintiff to the same procedures provided by state law. Rather, under federal law,

9 what process is due is determined by context, to be analyzed in accordance with the three-

10 part balancing test described in [Mathews v. Eldridge, 424 U.S. 319 (1976)].” Id. Under

11 that test, “[t]o satisfy federal due process minimums, . . . employees need only receive

12 notice and an opportunity for a hearing before being deprived of their property interest.”

13 Id. Thus, in Roybal, the Ninth Circuit held that the district court erred by determining that

14 the plaintiff “did not receive due process because [his employer] violated state law” by

15 reducing his salary without holding “a predeprivation probable cause hearing,” explaining

16 that the employee “received all the process due to him” under federal law because he

17 received notice and an opportunity to be heard before the final decision regarding his salary

18 reduction. Id. at 933-34. The court emphasized that although state law “provides greater

19 protection than federal law,” “the district court erred in resting its analysis on a violation

20 of state law.” Id.

21 2. Substantive Due Process

22 “To establish a substantive due process claim, a plaintiff must, as a threshold matter,

23 show a government deprivation of life, liberty, or property.” Nunez v. City of Los Angeles,

24 147 F.3d 867, 871 (9th Cir. 1998). In addition, the government deprivation must “shock

25 the conscience or offend the community’s sense of fair play and decency.” Rosenbaum v.

26 Washoe Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011) (cleaned up). It is not enough for a

27 plaintiff to allege that defendants engaged in “arbitrary or capricious conduct that violates

28 state law” or deprived him of his “right to work or to pursue a livelihood.” DeGroote v.

1 City of Mesa, 2009 WL 485458, *4 (D. Ariz. 2009). Instead, “[t]he protections of

2 substantive due process have for the most part been accorded to matters relating to

3 marriage, family, procreation, and the right to bodily integrity. These fields likely represent

4 the outer bounds of substantive due process protection.” Nunez, 147 F.3d at 871 n.4

5 (cleaned up).

6 C. Analysis

7 1. Procedural Due Process—The Individual Defendants

8 The Individual Defendants seek dismissal of the procedural due process component

9 of Count Six for an array of reasons, including that they are “qualifiedly immune” because

10 “the alleged denial of due process is not clearly established.” (Doc. 13 at 21.)

11 “Qualified immunity shields federal and state officials from money damages unless

12 a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional

13 right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”

14 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). Courts “have discretion to address the

15 ‘clearly established’ prong of the qualified immunity test first; if [they] conclude that the

16 relevant law was not clearly established, [they] need not address the other prong concerning

17 the underlying merits of the constitutional claim.” Shooter v. Arizona, 4 F.4th 955, 961

18 (9th Cir. 2021) (internal quotation marks omitted). The Court will exercise its discretion

19 to begin with the clearly established prong here because, as discussed below, it is

20 dispositive.

21 A government official’s conduct violates clearly established law when “the contours

22 of a right are sufficiently clear that every reasonable official would have understood that

23 what he is doing violates that right.” Ashcroft, 563 U.S. at 741 (cleaned up). Although

24 there need not be a “case directly on point,” “existing precedent must have placed the

25 statutory or constitutional question beyond debate.” Id. In other words, the case law must

26 “have been earlier developed in such a concrete and factually defined context to make it

27 obvious to all reasonable government actors, in the defendant’s place, that what he is doing

28 violates federal law.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir.

1 2017). See also Kisela v. Hughes, 584 U.S. 100, 104 (2018) (“This Court has repeatedly

2 told courts—and the Ninth Circuit in particular—not to define clearly established law at a

3 high level of generality.”) (cleaned up); Sharp v. Cnty. of Orange, 871 F.3d 901, 910-11

4 (9th Cir. 2017) (“The Supreme Court has repeatedly instructed that we examine whether

5 the violative nature of particular conduct is clearly established by controlling precedent,

6 not whether the conduct violates a general principle of law. . . . Except in the rare case of

7 an obvious instance of constitutional misconduct . . . , Plaintiffs must identify a case where

8 an officer acting under similar circumstances as defendants was held to have violated the

9 [Constitution]. In other words, Plaintiffs must point to prior case law that articulates a

10 constitutional rule specific enough to alert these [defendants] in this case that their

11 particular conduct was unlawful.”) (cleaned up).

12 “Determining claims of qualified immunity at the motion-to-dismiss stage raises

13 special problems for legal decision making. On the one hand, we may not dismiss a

14 complaint making a claim to relief that is plausible on its face. But on the other hand,

15 defendants are entitled to qualified immunity so long as their conduct does not violate

16 clearly established statutory or constitutional rights of which a reasonable person would

17 have known. The Supreme Court has emphasized that this is a low bar, explaining that

18 qualified immunity gives government officials breathing room to make reasonable but

19 mistaken judgments about open legal questions.” Keates v. Koile, 883 F.3d 1228, 1234-35

20 (9th Cir. 2018) (cleaned up).

21 As noted, the first element of Plaintiff’s procedural due process claim requires him

22 to show that he had a constitutionally protected property interest in his continued

23 employment as Chief of Police. Roybal, 871 F.3d at 931. At first blush, Plaintiff would

24 seem to lack such an interest, because Cottonwood’s municipal code expressly provides

25 that the position of Chief of Police is an at-will position: “The police chief shall be

26 appointed by and shall serve at the pleasure of the city manager.” Cottonwood City Code

27 § 2.44.030. “Where state employees serve at the will of the appointing authority, . . . there

28 is no such reasonable expectation of continued employment, and thus no property right”

1 that could support a procedural due process claim. Brady v. Gebbie, 859 F2d 1543, 1548

2 (9th Cir. 1988).

3 The wrinkle here arises from the POBOR. “Initially passed in 2014, the POBOR

4 provides certain protections to certified peace officers in Arizona. These protections are

5 primarily procedural and include protection during an internal investigation, notice and

6 opportunity to be heard before termination of employment, and an opportunity for a post-

7 termination appeal.” Blunt v. Town of Gilbert, 2024 WL 2722167, *3 (D. Ariz. 2024). “In

8 its original form, the statute . . . allowed law enforcement agencies and their employees to

9 enter into employment agreements that supplanted, revised, or otherwise deviated from the

10 terms of the POBOR without causing an issue.” Id. Thus, under the original version of

11 the POBOR enacted in 2014, nothing would have prevented Cottonwood from adhering to

12 its municipal code, treating Plaintiff’s position of Chief of Police as an at-will position, and

13 not providing Plaintiff with notice and an opportunity to be heard (as well as the other

14 procedural rights contemplated in the statute) before terminating him. However, “in 2022,

15 the Legislature amended” the POBOR to “explicitly set the floor of minimum rights that

16 peace officers are granted in Arizona. It also removed the ability for law enforcement

17 agencies and their employees to ‘supplant, revise, or otherwise deviate from’ the statute.

18 Instead, the statute now only allows them to ‘supplement or enhance’ the terms of the

19 POBOR.” Id. “This amendment became effective on September 24, 2022.” Id.

20 In a nutshell, Plaintiff’s position is that even though he was hired before the

21 September 24, 2022 effective date of the POBOR amendment,1 he became entitled to all

22 of the procedural rights created by the amendment once it went into effect—and, thus, he

23 had a legitimate claim of entitlement to his job of Chief of Police at the time of his

24 termination in September 2023. (Doc. 18 at 3, 9 [arguing that “[t]he claim that POBOR

25 does not convey any property interest is baseless” and that “POBOR did and does create a

26

27 1 Although the record does not reveal exactly when Plaintiff was hired as Chief of

Police, Defendants correctly note that the FAC’s references to “Plaintiff’s conduct as Chief

28 of Police in June 2022” show that the hiring necessarily occurred before September 24,

2022. (Doc. 13 at 14 n.5, citing Doc. 6 ¶¶ 26, 45, 56.)

1 property interest as certain requirements are set forth in statute”].) Plaintiff also notes that,

2 in certain documents, Cottonwood seemed to acknowledge that the additional protections

3 created by the 2022 amendment were applicable to him. (Id. at 8.) Meanwhile, Defendants

4 argue that the 2022 amendment could not, as a matter of state law, apply retroactively to

5 modify Plaintiff’s at-will employment and that the Contracts Clauses of the United States

6 and Arizona Constitutions would, at any rate, prevent the 2022 amendment from impairing

7 Plaintiff’s implied contract with the City. (Doc. 13 at 13-17.)

8 This is not the first case to consider a procedural due process-based § 1983 claim

9 premised on the 2022 POBOR amendment. In Blunt, the Town of Gilbert terminated one

10 of its police officers in September 2023 and the officer responded by asserting a variety of

11 claims against the town, including “violation of his procedural . . . due process rights under

12 the . . . POBOR [and] violation of the POBOR itself.” Blunt, 2024 WL 2722167 at *1.

13 When addressing the procedural due process claim, the district court began by considering

14 “the threshold issue [of] whether Plaintiff Blunt has a constitutionally protected property

15 interest.” Id. at *2. As in this case, the town argued the plaintiff lacked a protected property

16 interest because he was an at-will employee when he was originally hired and “the

17 presumption against retroactivity, along with the Contract Clauses of both the United States

18 and Arizona Constitutions, prohibit the retroactive application of the amended POBOR to

19 Plaintiff.” Id. After conducting a thorough analysis of the issue, the district court agreed

20 with the town that “[t]he 2022 amendment does not retroactively apply to the agreement or

21 preempt the employment agreement between Plaintiff Blunt and the Town. Accordingly,

22 because Plaintiff Blunt lacks a constitutionally protected interest in his employment, Count

23 I will be dismissed with prejudice.” Id. at *5.

24 Although Defendants urge the Court to find that Blunt was correctly decided and to

25 determine that the 2022 POBOR amendment was inapplicable to Plaintiff (Doc. 13 at 14-

26 15; Doc. 19 at 4, 7-8), it is unnecessary to go that far in resolving the Individual Defendants’

27 request for qualified immunity. As noted, if a court “conclude[s] that the relevant law was

28 not clearly established, [it] need not address the other prong concerning the underlying

1 merits of the constitutional claim.” Shooter, 4 F.4th at 961. “The plaintiff bears the burden

2 of pointing to prior case law that articulates a constitutional rule specific enough to alert

3 these officers in this case that their particular conduct was unlawful.” Hughes v. Rodriguez,

4 31 F.4th 1211, 1223 (9th Cir. 2022) (cleaned up). The necessity of identifying a prior case

5 with similar facts is particularly pronounced in the context of procedural due process

6 claims. Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th

7 Cir. 1998) (“[T]he law regarding procedural due process claims can rarely be considered

8 clearly established at least in the absence of closely corresponding factual and legal

9 precedent.”). Additionally, “the prior precedent must be ‘controlling’—from the Ninth

10 Circuit or Supreme Court—or otherwise be embraced by a ‘consensus’ of courts outside

11 the relevant jurisdiction.” Sharp, 871 F.3d at 911 (citation omitted). See also

12 Tuuamalemalo v. Greene, 946 F.3d 471, 477 (9th Cir. 2019) (“The right must be settled

13 law, meaning that it must be clearly established by controlling authority or a robust

14 consensus of cases of persuasive authority.”).

15 In responding to the Individual Defendants’ qualified immunity arguments, Plaintiff

16 simply reiterates his belief that they violated his constitutional and statutory rights and

17 argues that other, unrelated statutory violations show “there was no mistake.” (Doc. 18 at

18 14-15.) Plaintiff makes no effort to identify a prior case from the Supreme Court or the

19 Ninth Circuit (or a robust consensus of other persuasive cases) that would have imparted

20 notice to the Individual Defendants at the time of their challenged conduct that Plaintiff

21 had a protected property interest in his position as the Cottonwood Chief of Police by virtue

22 of the 2022 amendment to the POBOR. Indeed, no case had addressed that issue at the

23 time of the challenged conduct and the only subsequent decision seems to undermine,

24 rather than support, Plaintiff’s position.2 Under these circumstances, the Individual

25

26 2 The Court acknowledges that there are some factual differences between this case

and Blunt, but it is unnecessary to decide—at least for purposes of evaluating the Individual

27 Defendants’ entitlement to qualified immunity—whether those factual differences would

compel a different outcome here on the merits of the property-interest issue. The point is

28 that there was (and is) no clearly established law supporting Plaintiff’s proposed

understanding of how the 2022 POBOR amendment would apply to him.

1 Defendants are entitled to qualified immunity on Plaintiff’s procedural due process claim.

2 Cf. Lane v. City of Tucson, 2025 WL 18682, *15 (D. Ariz. 2025) (granting qualified

3 immunity in a § 1983 action involving a former police officer’s claim that the individual

4 defendants violated his procedural due process rights when demoting him, where the

5 plaintiff’s position was that the POBOR “provides him with a protected property interest

6 in his municipal police captain position,” because the applicability of the statute to the

7 plaintiff was “not clear” and the plaintiff failed to “reference[] any Arizona court that has

8 considered the question”).

9 2. Procedural Due Process—Cottonwood

10 Although the Individual Defendants are entitled to qualified immunity as to the

11 procedural due process component of Count Six, Plaintiff could still prevail on that claim

12 against Cottonwood if his procedural due process rights had, in fact, been violated (and it

13 was only the absence of clearly established law that prevented the Individual Defendants

14 from being held individually liable). Brandon v. Holt, 469 U.S. 464, 473 (1985) (“[A]

15 municipality is not entitled to the shield of qualified immunity from liability under

16 § 1983.”); Horton by Horton v. City of Santa Maria, 915 F.3d 592, 603-04 (9th Cir. 2019)

17 (“Our qualified immunity determination with respect to Officer Brice rests solely on the

18 ‘clearly established’ law prong; we do not reach the question of whether Officer Brice’s

19 actions gave rise to a constitutional violation. A municipality may be liable if an individual

20 officer is exonerated on the basis of the defense of qualified immunity, because even if an

21 officer is entitled to immunity a constitutional violation might still have occurred.”)

22 (cleaned up).

23 “To state a claim under § 1983, a plaintiff must allege the violation of a right secured

24 by the Constitution and laws of the United States, and must show that the alleged

25 deprivation was committed by a person acting under color of state law.” West v. Atkins,

26 487 U.S. 42, 48 (1988). A “person” includes local government entities. Monell v. Dep’t

27 of Soc. Servs. of the City of New York, 436 U.S. 658, 690 (1978). However, “a municipality

28 cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691. Instead,

1 “[a] section 1983 plaintiff may establish municipal liability in one of three ways. First, the

2 plaintiff may prove that a city employee committed the alleged constitutional violation

3 pursuant to a formal governmental policy or a longstanding practice or custom which

4 constitutes the standard operating procedure of the local governmental entity. Second, the

5 plaintiff may establish that the individual who committed the constitutional tort was an

6 official with final policy-making authority and that the challenged action itself thus

7 constituted an act of official governmental policy. . . . Third, the plaintiff may prove that

8 an official with final policy-making authority ratified a subordinate’s unconstitutional

9 decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th

10 Cir. 1992) (cleaned up).

11 Defendants argue that any Monell claim against Cottonwood fails because

12 “Plaintiff’s Complaint is devoid of any facts even remotely suggesting that the City has a

13 policy or custom of violating employees’ rights under the Due Process Clause” and

14 “Plaintiff has not alleged any facts demonstrating that the individual Defendants had the

15 authority to create personnel policies regarding terminations/due process, as required to

16 qualify as a final policymaker under Ninth Circuit precedent.” (Doc. 13 at 9.) Defendants

17 also contend that “Plaintiff’s failure to establish that Elinski, Rodriguez, Winkler,

18 Douglass, and/or Wilber qualify as final policymakers is unsurprising, as only the City

19 Council possesses such authority” and “the City Council has adopted policies requiring

20 that non-probationary, classified employees be afforded due process when terminated.”

21 (Id. at 11.) Last, Defendants argue that even though Elinski was Mayor, “he cannot, as a

22 matter of law, act independently of the council as a whole. The City Council may only

23 create policy through a majority vote at a properly noticed, formal council meeting.” (Id.

24 at 11-12 n.3, citing A.R.S. § 38-431.01(A).)

25 In response, Plaintiff first accuses Defendants of applying the wrong test for

26 determining municipal liability. (Doc. 18 at 6 [summarizing Defendants’ arguments and

27 asserting: “That is not the test here.”].) According to Plaintiff, although “Monell

28 recognized one way to plead a Section 1983 claim against a governmental entity,” it is also

1 possible to plead such a claim by showing “(1) that the Defendants were acting under color

2 of law; (2) that the deprivation complained of was a right or interest secured by the federal

3 constitution or laws; (3) that the deprivation complained of was intentional or the

4 reasonably foreseeable result of a voluntary act or omission and (4) that the injury alleged

5 was proximately caused by the defendant(s).” (Id. at 7, citations omitted.) Alternatively,

6 Plaintiff argues that he has sufficiently pleaded a claim under Monell because he “set forth

7 the claims that the Mayor, City Attorney, City Manager and City Council itself, the policy

8 maker per the Defendants, were directly involved in the termination process thus ratifying

9 it.” (Id. at 8.) In a similar vein, Plaintiff argues that the “City was well aware of what the

10 employees and agents were doing” and that because “the Mayor, City Manager, City

11 Attorney and City Council were involved in the process and decision, the actions

12 represented official policy.” (Id. at 16.)

13 In reply, Defendants argue that Plaintiff “misses the relevant analysis. A final

14 policymaker must have committed or ratified the challenged act. Here, the alleged

15 violation is the denial of due process . . . [and Plaintiff] avoids confronting the core issue

16 of whether any defendant with policy-making authority denied him the right to notice and

17 an appeal.” (Doc. 19 at 3-4.) Defendants reiterate that “none of the individual Defendants

18 had the authority to create City policies regarding terminations/due process, as required to

19 qualify as a final policymaker,” that the City Council alone qualifies as a final policymaker,

20 and that Plaintiff has failed to allege that the City Council “act[ed] with a majority vote

21 through a properly noticed meeting” as required by Arizona law. (Id. at 4.)

22 Defendants have the better of these arguments. As a preliminary matter, Plaintiff is

23 incorrect insofar as he appears to argue that the liability standard articulated in Monroe v.

24 Pape, 365 U.S. 167 (1961), governs municipal liability in § 1983 actions. The Supreme

25 Court in Monroe stated that “we are of the opinion that Congress did not undertake to bring

26 municipal corporations within the ambit of [§ 1983].” Id. at 187. Meanwhile, Monell later

27 clarified that “municipalities [cannot] be held liable unless action pursuant to official

28 municipal policy of some nature caused a constitutional tort.” Monell, 436 U.S. at 691

1 (emphasis added). It remains settled law that a municipality is not automatically liable

2 under § 1983 for the actions of its employees and agents. See, e.g., Long v. Cnty. of Los

3 Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (“A municipality may not be sued under

4 § 1983 solely because an injury was inflicted by its employees or agents.”)

5 Turning to the sufficiency of the FAC, Plaintiff has not alleged any facts that

6 plausibly suggest Cottonwood had an official policy of violating employees’ procedural

7 due process rights. Plaintiff’s attempt to establish the existence of such a policy is based

8 on a single conclusory allegation—that because “the Mayor, City Manager, City Attorney

9 and City Council were involved in the process and decision, the actions represented official

10 policy.” (Doc. 6 ¶ 122; Doc. 18 at 16.) But this sort of allegation is insufficient—Plaintiff

11 “has not directed us to any policy, officially adopted and promulgated by the City.” Delia

12 v. City of Rialto, 621 F.3d 1069, 1082 (9th Cir. 2010), abrogated on other grounds by

13 Filarsky v. Delia, 566 U.S. 377 (2012).

14 Nor does the FAC allege sufficient facts to support liability under a “practice or

15 custom” theory. “[L]iability for improper custom may not be predicated on isolated or

16 sporadic incidents; it must be founded upon practices of sufficient duration, frequency and

17 consistency that the conduct has become a traditional method of carrying out policy.”

18 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). See also Delia, 621 F.3d at 1082 (“Nor

19 has [plaintiff] established a practice, so permanent and well-settled so as to constitute a

20 custom, that existed and through which Chief Wells acted in [taking the challenged

21 action].”). All that is alleged here is an isolated incident involving Plaintiff—there is no

22 suggestion (let alone well-pleaded allegation) of other similar incidents involving other

23 municipal employees.

24 The FAC’s allegations are also insufficient under a “final policymaker” theory.

25 “[W]hether a particular official has ‘final policymaking authority’ is a question of state

26 law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (emphasis in original).

27 Federal courts consider “the relevant legal materials, including state and local positive law,

28 as well as ‘custom or usage’ having the force of law.” Jett v. Dallas Indep. Sch. Dist., 491

1 U.S. 701, 737 (1989). As noted, the FAC’s single allegation on this point is conclusory,

2 amounting to little more than a “[t]hreadbare recital[] of the elements of a cause of action.”

3 Mollett, 795 F.3d at 1065. Plaintiff has not made any attempt to identify any provision of

4 state or municipal law that plausibly suggests the Mayor, City Manager, or City Attorney

5 wielded final policymaking authority with respect to the challenged due process violations

6 at issue here. Nor has Plaintiff responded to Defendants’ argument that those actors cannot

7 act independently of the City Council, which “may only create policy through a majority

8 vote at a properly noticed, formal council meeting.” (Doc. 13 at 11-12 n.3.) Cf. Glynn v.

9 City of El Mirage, 2023 WL 6795080, *5 (D. Ariz. 2023) (“The City Code makes clear

10 that the Council has the authority to enact and modify personnel policies.”).3 For example,

11 even though the Cottonwood City Code states that the Chief of Police serves at the pleasure

12 of the City Manager (Doc. 13 at 13), this type of arrangement does not automatically

13 establish that the City delegated final policymaking authority to the City Manager or that

14 the City Manager is a final policymaker when it comes to compliance (or lack thereof) with

15 employment-related procedural requirements created by the City Council. See, e.g.,

16 Pembaur v. City of Cincinnati, 475 U.S. 479, 483 n.12 (1986) (“[T]he County Sheriff may

17 have discretion to hire and fire employees without also being the county official responsible

18 for establishing county employment policy. . . . [I]f county employment policy was set by

19 the Board of County Commissioners, only that body’s decisions would provide a basis for

20 county liability. This would be true even if the Board left the Sheriff discretion to hire and

21 fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the

22 decision to act unlawfully would not be a decision of the Board.”); Gillette, 979 F.2d at

23 1349-50 (rejecting Monell claim against municipality in § 1983 action brought by

24 firefighter who claimed he was suspended from his employment in retaliation for

25

26 3 Defendants also cite provisions of the Cottonwood employee manual in an attempt

to show that the Mayor, City Manager, and City Attorney could not be final policymakers.

27 (Doc. 13 at 11, citing Doc. 13-12). In response, Plaintiff accuses Defendants of engaging

in “an impermissible attempt to establish as ‘facts’ matters that are in dispute.” (Doc. 18

28 at 5.) Because Defendants do not explain why the employee manual is a proper subject of

judicial notice, the Court declines to consider it.

1 exercising his First Amendment rights, where one of the plaintiff’s theories was that “Fire

2 Chief Hall was . . . a ‘policymaker’ whose individual decision could be attributed to the

3 City under Monell . . . [because] Hall had final authority with respect to disciplining fire

4 fighters and had been delegated de facto authority to establish personnel policy within the

5 Fire Department,” because “the Eugene City Charter and ordinances grant authority to

6 make City employment policy only to the City Manager and the City Council”); Delia, 621

7 F.3d at 1083 (“This argument confuses final decisionmaking authority with final

8 policymaking authority.”).

9 Finally, there are no well-pleaded allegations in the FAC suggesting that the City

10 Council ratified the challenged procedural due process violations at issue here. As noted,

11 the FAC’s only allegation on this point is that the “City Council [was] involved in the

12 [termination] process and decision.” (Doc. 6 ¶ 122.) But ratification “requires an official

13 policymaker make a deliberate choice from among various alternatives to follow a

14 particular course of action.” Gillette, 979 F.2d at 1348. “[A] policymaker [must] approve

15 a subordinate’s decision and the basis for it before the policymaker will be deemed to have

16 ratified the subordinate’s discretionary decision.” Id. Thus, where a plaintiff merely

17 alleges that the relevant municipal policymaker “did not overrule a discretionary

18 [employment] decision” by another municipal official, this “cannot form the basis of

19 municipal liability under section 1983.” Id. “To hold cities liable under section 1983

20 whenever policymakers fail to overrule the unconstitutional discretionary acts of

21 subordinates would simply smuggle respondeat superior liability into section 1983 law

22 . . . . We decline to endorse this end run around Monell.” Id.

23 Because the FAC’s allegations are insufficient under Monell to state a procedural

24 due process claim against Cottonwood, that portion of Count Six is dismissed.4

25 4 The Court acknowledges that if Defendants are correct about the disputed property-

interest issue identified (but not resolved on the merits) in Part I.C.1 above, this would

26 provide an alternative basis for dismissing Count Six as to Cottonwood. Nevertheless, “a

longstanding principle of judicial restraint requires that courts avoid reaching constitutional

27 questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian

Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). The Court thus finds it is prudent

28 to limit the scope of its analysis here to the sufficiency of the FAC’s allegations regarding

Monell liability. If necessary, the Court will resolve the unresolved constitutional issue at

1 3. Substantive Due Process—All Defendants

2 Having dismissed the portion of Count Six premised on the alleged violation of

3 Plaintiff’s right to procedural due process under the Fourteenth Amendment, all that

4 remains is the portion of Count Six premised on the alleged violation of Plaintiff’s right to

5 substantive due process under the Fourteenth Amendment.5

6 Defendants argue that “Plaintiff has failed to identify the nature of the purported

7 [substantive due process] violation. Instead, he relies on vague and conclusory allegations

8 that lump together multiple defendants and claims and are devoid of any factual support

9 . . . .” (Doc. 13 at 18.) Defendants highlight one such instance where Plaintiff alleges:

10 “Defendants violated Plaintiff’s constitutional rights under the United States Constitution,

11 Fourteenth Amendments and Ariz. Const. art. II, § 4 as to procedural due process and

12 substantive due process . . . . The conduct shocks the conscience depriving Plaintiff of a

13 property interest, employment, as well as violated procedural and statutory rights.” (Id.,

14 citing Doc. 6 ¶ 115.) Defendants argue that these allegations are “the same kind of

15 ‘unadorned, the-defendant-unlawfully-harmed-me accusations’ that the Supreme Court

16 found deficient in Iqbal.” (Id. at 19.)

17 Plaintiff’s response is, in many respects, non-responsive. Plaintiff does not address

18 Defendants’ argument directly and instead appears to suggest that Defendants’ decision to

19 treat him as an at-will employee and ignore his procedural rights under the POBOR

20 violated his right to substantive due process. (Doc. 18 at 11-12.) In subsequent portions

21 of his brief, Plaintiff also appears to suggest that his substantive due process claim is

22 supported by allegations that the Individual Defendants either misled him or withheld

23 information from him. (Id. at 12-14.)

24 In reply, Defendants argue that “Plaintiff’s Response includes no explanation of

25 a later stage of this case.

26 5 To the extent Plaintiff suggests his § 1983 claim in Count Six may be based on

violations of state rather than federal law (Doc. 6 ¶ 115 [“Defendants violated Plaintiff’s

27 constitutional rights under . . . Ariz. Const. art. II, § 4 . . . [and] under Arizona statutes as

set forth herein”]), Plaintiff is mistaken. Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir.

28 1981) (“Only federal rights, privileges, or immunities are protected by [§ 1983]. Violations

of state law alone are insufficient.”).

1 why Defendants’ alleged conduct was so contrary to the fundamental principles of law that

2 Count Six clears the exceptionally high ‘shocks the conscience’ standard enunciated by the

3 Ninth Circuit. Nor does Plaintiff explain why Defendants’ actions approach the outer

4 bounds of substantive due process protection, which is typically limited only to matters

5 relating to marriage, family, procreation, and the right to bodily integrity.” (Doc. 19 at 7,

6 cleaned up.) According to Defendants, “[t]he Court should decline Plaintiff’s invitation to

7 ‘expand the concept of substantive due process,’ particularly where courts in other

8 employment cases have declined to do so.” (Id., citations omitted.)

9 It is unnecessary to differentiate between the Individual Defendants and

10 Cottonwood when analyzing the substantive due process component of Count Six because

11 it fails to state a claim as to all of them. As noted, “[t]he protections of substantive due

12 process have for the most part been accorded to matters relating to marriage, family,

13 procreation, and the right to bodily integrity. These fields likely represent the outer bounds

14 of substantive due process protection.” Nunez, 147 F.3d at 871 n.4 (cleaned up). Plaintiff

15 has not explained how Defendants’ challenged conduct “shocks the conscience” in the

16 manner required to support a substantive due process claim, nor has he cited any cases that

17 remotely support his position. As Defendants note, courts in the Ninth Circuit have

18 repeatedly declined to extend substantive due process protections to cases based on

19 employment. See, e.g., Aleman v. Cnty. of Los Angeles, 2024 WL 5257028, *6 (C.D. Cal.

20 2024); Fuentes v. Cnty. Of Santa Cruz, 2023 WL 2528328, *3 (D. Ariz. 2023) (rejecting

21 substantive due process claim asserted by Arizona police officer who sought to challenge

22 his termination: “This is not a substantive due process case.”); Hanford Exec. Mgmt. Emp.

23 Ass’n v. City of Hanford, 2014 WL 334200, *22 (E.D. Cal. 2014).

24 II. The Remaining Claims

25 Defendants also seek the dismissal of Plaintiffs’ state-law claims in Counts One,

26 Two, Four, and Five and to strike portions of the FAC that contain references to material

27 purportedly considered confidential under state law.

28 The Court finds it unnecessary to reach the merits of those arguments (at least for

1 now) because “in the usual case in which all federal-law claims are eliminated before trial,

2 the balance of factors to be considered under the pendent jurisdiction doctrine—judicial

3 economy, convenience, fairness, and comity—will point toward declining to exercise

4 jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484

5 U.S. 343, 350 n.7 (1988); see also 28 U.S.C. § 1367(c)(3) (“The district courts may decline

6 to exercise supplemental jurisdiction over a [pendent state-law claim] if . . . the district

7 court has dismissed all claims over which it has original jurisdiction.”). Here, the parties

8 all appear to be Arizona citizens (Doc. 6 ¶¶ 2-8) and Defendants did not, at any rate, rely

9 on diversity jurisdiction when removing this action from Yavapai County Superior Court—

10 instead, the sole basis for removal was the presence of federal-question jurisdiction over

11 Plaintiff’s § 1983 claim, which in turn conferred supplemental jurisdiction over the

12 remaining state-law claims (Doc. 1 ¶ 5). Now that Count Six has been dismissed, the Court

13 may, in its discretion, decline to continue exercising supplemental jurisdiction over the

14 remaining claims.

15 The Cohill factors counsel against retaining supplemental jurisdiction here. First,

16 this case is less than a year old and no trial date has been set, so declining jurisdiction will

17 cause minimal duplication of effort. Cf. Fitzhugh v. Miller, 2020 WL 1640495, *9 (D.

18 Ariz. 2020) (concluding the same for a less-than-a-year-old case). Second, it appears the

19 Yavapai County Superior Court is at least as convenient a forum as this Court. Cf. Shooter

20 v. Arizona, 2019 WL 2410808, *8 (D. Ariz. 2019), aff’d, 4 F.4th 955 (9th Cir. 2021)

21 (concluding the same under similar circumstances). As to the remaining factors,

22 considerations of fairness, federalism, and comity are best served by allowing the Arizona

23 state courts to address state-law claims (as well as the dispute over whether the challenged

24 paragraphs of the FAC should be considered confidential under state law). United Mine

25 Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless decisions of state law should

26 be avoided both as a matter of comity and to promote justice between the parties, by

27 procuring for them a surer-footed reading of applicable law.”); see also Roundtree v. Atl.

28 Dev. & Inv., 2009 WL 2132697, *3 (D. Ariz. 2009) (dismissing federal claim and then

1 declining to exercise supplemental jurisdiction over remaining state-law claims: “The

2 Court is mindful that the exercise of supplemental jurisdiction may serve the values of

3 judicial economy and convenience . . . but these values are outweighed by the interests of

4 comity and federalism.”) (cleaned up); Floyd v. Watkins, 2015 WL 5056036, *6 (D. Or.

5 2015) (“The Court closely examined the sole federal law claim [under § 1983] and resolved

6 it in favor of Officer Watkins. State court is a convenient forum for the parties, and

7 declining to exercise supplemental jurisdiction respects the values of federalism and

8 comity.”).

9 Accordingly, Counts One through Five are dismissed without prejudice. Cohill, 484

10 U.S. at 350 (“When the balance of these factors indicates that a case properly belongs in

11 state court, as when the federal-law claims have dropped out of the lawsuit in its early

12 stages and only state-law claims remain, the federal court should decline the exercise of

13 jurisdiction by dismissing the case without prejudice.”).6

14 III. Leave To Amend

15 Plaintiff seeks leave to amend in the event of dismissal. (Doc. 18 at 20-21.) In

16 reply, Defendants argue that “leave to amend should be denied” because all of Plaintiff’s

17 claims, including Count Six, “suffer from incurable flaws.” (Doc. 19 at 11.)

18 Rule 15(a) of the Federal Rules of Civil Procedure “advises the court that ‘leave [to

19 amend] shall be freely given when justice so requires.’” Eminence Cap., LLC v. Aspeon,

20 Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citation omitted). “This policy is ‘to be applied

21 with extreme liberality.’” Id. (citation omitted). Thus, leave to amend should be granted

22 unless “the amendment: (1) prejudices the opposing party; (2) is sought in bad faith;

23

24 6 “[I]n some circumstances a remand of a removed case involving pendent claims will

better accommodate these values [of economy, convenience, fairness, and comity] than

25 will dismissal of the case.” Cohill, 484 U.S. at 351. Nevertheless, the Court concludes, in

its discretion, that dismissing the state-law claims without prejudice is preferable to

26 remanding them to Yavapai County Superior Court. Edmondson & Gallagher v. Alban

Towers Tenants Ass’n, 48 F.3d 1260, 1267 (D.C. Cir. 1995) (“Whether to remand or

27 dismiss is a matter normally left to the discretion of the district court.”). This is because

Plaintiff is being granted leave to amend as to Count Six. Remanding the state-law claims

28 to Yavapai County Superior Court at this juncture would thus create a possibility of

inefficient, duplicative litigation in multiple forums.

1 (3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen Corp. v.

2 Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006).

3 As applied to Count Six, Plaintiff’s request for leave to amend is granted in part and

4 denied in part. More specifically, leave to amend is granted as to the portion of Count Six

5 that seeks to assert a procedural due process claim pursuant to § 1983, because it may be

6 possible for Plaintiff to allege additional facts to cure the deficiencies identified in the

7 qualified immunity and/or Monell analyses set forth above. However, leave to amend is

8 denied, on futility grounds, as to the portion of Count Six that seeks to assert a substantive

9 due process claim pursuant to § 1983 or a § 1983 claim premised on violations of state law.

10 Finally, as for Counts One through Five (which, as discussed in Part II above, have

11 been dismissed without prejudice due to the absence, at least for now, of a federal claim),

12 Plaintiff may reassert those claims if he chooses to take advantage of the limited grant of

13 leave to amend as to Count Six set forth above. In that scenario, Defendants may simply

14 reassert their dismissal arguments as to Counts One, Two, Four, and Five in their response

15 to the next iteration of Plaintiff’s complaint, and if the amended Count Six survives

16 dismissal, the Court will take up the merits of Counts One, Two, Four, and Five at that

17 time.

18 …

19 …

20 …

21 …

22 …

23 …

24 …

25 …

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27 …

28 …

1 Accordingly,

2 IT IS ORDERED that:

3 1. Defendants’ motion to dismiss (Doc. 13) is granted.

4 2. Within 14 days of the issuance of this order, Plaintiff may file a second

5 || amended complaint (“SAC”). The changes shall be limited to attempting to cure the

6 || deficiencies that led to the dismissal of the procedural due process component of Count

7\| Six. Plaintiff also may reassert Counts One through Five if he chooses to file a SAC.

8 3. If Plaintiff does not file a SAC within 14 days of the issuance of this order,

the Clerk shall enter judgment accordingly and terminate this action.

10 Dated this 27th day of March, 2025.

11

12 om ee

13 } ———

Dominic W. Lanza

14 United States District Judge

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