Andrich v. Adel

Devin Andrich, Plaintiff, v. Allister Adel, et al., Defendants.

No. CV-20-01237-PHX-GMS (MTM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

March 15, 2021

ORDER

Before the Court are Defendants State Bar of Arizona and Stacy Lynn Shuman's ("SBA Defendants") Request for Judicial Notice (Doc. 42) and Motion to Dismiss Plaintiff's First Amended Complaint (Doc. 43).¹ Also before the Court is Maricopa County Defendants' Motion to Dismiss the Second Amended Complaint. (Doc. 66.) For the reasons set forth below, Defendants' motions are granted, and SBA Defendants' Motion for Judicial Notice is denied as moot.²

BACKGROUND

Although Plaintiff alleges many irrelevant facts in his complaint, this case is premised on an allegedly deficient investigation by the State Bar of Arizona ("SBA") and Maricopa County law enforcement and prosecutors. Plaintiff Devin Andrich ("Plaintiff") is a disbarred attorney. He alleges that his former clients, Jerome and Lisa Meyers ("Meyers"), agreed to store his personal property during the pendency of criminal proceedings against him. The Meyers later filed a bar complaint against Plaintiff, and Plaintiff alleges that they refused to relinquish possession of his property, including his computer containing client files. When they did release the computer, Plaintiff alleges the Meyers had confiscated the hard drive containing his data. Plaintiff asserts that the Meyers' attorneys at Singer Pistiner, P.C. either possess the files or know of their location.

Plaintiff sues three entities, Maricopa County, the State of Arizona, and the State Bar of Arizona, and nine individuals including law enforcement officers or investigators and others. These Defendants include: Allister Adel, Mark Brnovich, Jeffrey Duvendack, Michael Gingold, Kristin Nordeen, Heather Kirka, Jose Garcia, David Beck, and Stacy Lynn Shuman. He also includes allegations against Robert Singer, counsel at Singer Pistiner, P.C., and husband of Deputy Maricopa County Attorney Heather Kirka. Plaintiff sues Defendant Kirka because she "made it seem as if [she] was acting in an official capacity on behalf of Defendant Maricopa County when assisting Meyers, Singer and Pistiner with concealing the whereabouts of Plaintiff's attorney-client files." (Doc. 64 at 7.) Plaintiff further specifies that Defendants SBA and Shuman are sued "only in the capacity of investigators retained by Maricopa County. . . and not [as] prosecutors in any disciplinary proceeding." Id. He likewise sues Gingold, Duvendack, Nordeen, Garcia, and Beck as "agents or employees [sic] Maricopa County . . . at the time of events complained herein." Id. And he further sues the Maricopa County Attorney Allister Adel, and the Arizona Attorney General Mark Brnovich as "causing the deprivation of Plaintiff's rights under 42 U.S.C. § 1983." Id. at 6.

Plaintiff asserts that he notified both the SBA and Maricopa County law enforcement and prosecutors of the alleged theft. He alleges that the Defendants are allowing Singer Pistiner P.C. to remain in possession of his client files and have instructed other state and county Defendants not to obtain search warrants for his property. Plaintiff claims that, as a result, he was unable to respond to Meyers' bar charge and was unable to comply with the orders of the Disciplinary Judge which require him to return his clients' files to them. He further alleges he is obstructed in an unspecified way from fulfilling the terms of his plea agreement and probation conditions. Plaintiff claims that, while he is not attempting to call into question any of the state court proceedings against him through this lawsuit, the alleged failures of the Defendants to investigate and prosecute others rendered his Petition for Post-Conviction Relief incomplete and resulted in its ultimate denial. He claims that the same failures from Defendants are frustrating his ability to file a "robust petition for writ of habeas corpus." (Doc. 64 at 2.)

DISCUSSION

I. Legal Standards

a. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss a complaint for lack of subject matter jurisdiction. "The party asserting jurisdiction has the burden of proving all jurisdictional facts." Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). Federal courts "possess only that power authorized by Constitution and statute," and therefore "[i]t is to be presumed that a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise. See id.

b. Rule 12(b)(6)

To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise the right of relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When analyzing a complaint for failure to state a claim, "allegations of material fact are taken as true and construed in the light most favorable to the non-moving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).

II. Analysis

a. Eleventh Amendment Immunity

i. Legal Standard

The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Beentjes v. Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 2005) (quoting Bd. of Trs. of Univ. of Ala. v. Garret, 531 U.S. 356, 363 (2001)).

ii. The State of Arizona

First, Plaintiff may not seek damages against the State of Arizona and Defendants employed by the State sued in their official capacities. The State is immune from suit under the Eleventh Amendment. "[A] claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment. . . . [T]his principle applies as well to state-law claims brought into federal court under pendent jurisdiction." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984); see Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (dismissing prisoner's § 1983 suit against the State of Arizona as legally frivolous), superseded by statute on other grounds in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); see also In re Jackson, 184 F.3d 1046, 1048 (9th Cir. 1999) ("Eleventh Amendment sovereign immunity limits the jurisdiction of the federal courts and can be raised at any time during judicial proceedings or by the court sua sponte."). The State as a Defendant is, therefore, dismissed.

iii. The State Bar of Arizona

"The Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, an 'arm of the state,' its instrumentalities, or its agencies." Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) (quoting Durning v. Citibank, N.A., 950 F.2d 1419, 1422-23 (9th Cir. 1991)). "To determine whether a governmental agency is an arm of the state," courts examine five factors: "whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only the name of the state, and the corporate status of the entity." Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988). "To determine these factors, the court looks to the way state law treats the entity." Id.

Here, the first factor, whether a money judgment would be satisfied out of state funds, weighs slightly against finding the SBA an arm of the state. In accordance with Arizona Supreme Court Rule 32(d), the SBA fixes and collects fees through its treasury. Ariz. Sup. Ct. R. 32(d)(1). The SBA's board is vested with the power to "[a]pprove budgets and make appropriations and disbursements from funds of the State Bar to pay expenses necessary for carrying out its functions." Ariz. Sup. Ct. R. 32(d)(3). Nonetheless, the Arizona Supreme Court retains oversight on the SBA's expenditures—each year, a statement of the SBA's expenditures must be prepared and transmitted to the Chief Justice of the Arizona Supreme Court. Ariz. Sup. Ct. R. 32(d)(7).

The second factor, whether the entity performs central government functions, weighs heavily in favor of finding that the SBA is an arm of the state. The SBA was created by the Arizona Supreme Court, pursuant to Arizona Supreme Court Rule 32(a), which explains: "The Supreme Court of Arizona maintains under its direction and control a corporate organization known as the State Bar of Arizona." See Scheehle v. Justices of the Sup. Ct. of the State of Ariz., 120 P.3d 1092, 1100 (Ariz. 2005) ("By virtue of our constitutional power over attorneys as officers of the court, this Court created the State Bar of Arizona."). The Arizona Supreme Court thus defines the SBA's duties, obligations, and goals and every lawyer practicing in the State of Arizona must be a member of the SBA. See Bates v. State Bar of Ariz., 433 U.S. 350, 361 (1977) ("Although the State Bar plays a part in the enforcement of the rules, its role is completely...