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 KRISTIN K. MAYES ATTORNEY GENERAL (Firm State Bar No. 14000) Alice M. Jones (No. 028062) Eric K. Knobloch (No. 030269) Mary M. Curtin (No. 031973) Office of the Arizona Attorney General 2005 N. Central Avenue Phoenix, AZ 85004-1592 (602) 542-3333 Alice.Jones@azag.gov Eric.Knobloch@azag.gov Mary.Curtin@azag.gov CAdocket@azag.gov ACL@azag.gov Attorneys for State of Arizona UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Joseph McGhee, Plaintiff, v. Ryan Forsman, as an individual and in his official capacity as police officer employed by the City of Flagstaff, et al., Defendants. No. 3:23-cv-08601-PCT-SRB (ESW) STATE OF ARIZONA’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED AND SUPPLEMENTAL COMPLAINT (DOC. 75) (Hon. Eileen S. Willett) The newest iteration of Plaintiff’s proposed Second Amended Complaint still fails to set forth a cognizable claim against the State of Arizona. Granting leave to file this Case 3:23-cv-08601-SRB-ESW Document 83 Filed 03/27/24 Page 1 of 9 2 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 Second Amended Complaint would be futile, and must therefore be denied. A. The proposed Second Amended Complaint is futile because it fails to state a claim against the State. “A proposed amended complaint is futile if it would be immediately subject to dismissal. Thus, the proper test to be applied when determining the legal sufficiency of a proposed amendment is identical to the one used when considering the sufficiency of a pleading challenged under Rule 12(b)(6).” Nordyke v. King , 644 F.3d 776, 788 n.12 (9th Cir. 2011) (quotations and citations omitted), aff'd on reh’g en banc on other grounds, 681 F.3d 1041 (9th Cir. 2012). A dismissal for failure to state a claim can be based on either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep’t , 901 F.2d 696, 699 (9th Cir. 1990). This version of the proposed Second Amended Complaint now purports to assert two causes of action against the State, neither of which states a cognizable claim. Specifically, Plaintiff purports to bring: (1) a request for declaratory relief in the form of a judgment setting aside his criminal convictions on the basis of “extrinsic fraud” and (2) a facial challenge to A.R.S. § 13-2923. 1. The extrinsic fraud claim would fail as a matter of law because wrongful exclusion of exculpatory evidence in a state court proceeding is not extrinsic fraud appropriate for a Rooker-Feldman exception. The crux of Plaintiff’s proposed Count 1 appears to be that Plaintiff is entitled to have his state criminal convictions “set aside” by this Court because they are the product “fraudulent criminal conduct,” specifically the Coconino County Attorney’s Office’s “deliberate concealment of material exculpatory and impeachment evidence.” Doc. 75-2 at p. 60, ¶ 21. Simply put, Plaintiff cannot prevail on his extrinsic fraud claim because this Court lacks jurisdiction to hear it. MacKay v. Pfeil , 827 F.2d 540, 543 (9th Cir. 1987) (“Federal district courts. . . may not serve as appellate tribunals to review errors allegedly committed by state courts.”). Case 3:23-cv-08601-SRB-ESW Document 83 Filed 03/27/24 Page 2 of 9 3 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 As with the rest of Plaintiff’s claims in this case, the new “extrinsic fraud” claim is merely a de facto appeal from a state court order and is therefore barred by Rooker- Feldman Cooper v. Ramos , 704 F.3d 772, 777 (9th Cir. 2012) (finding that Rooker- Feldman bars lower federal courts from exercising jurisdiction over a direct appeal from a state-court decision, as well as “over the de facto equivalent of such an appeal”). Indeed, Plaintiff did not seek leave to amend his complaint to add an extrinsic fraud claim until after the Coconino County Superior Court denied his PCR Petition. See Doc. 55-3 at p. 120 and Doc. 56. The State understands that the Coconino County Superior Court denied Plaintiff’s Petition for Post-Conviction Relief on February 19, 2024. See Doc. 55-3 at pp. 120-141. On March 18, 2024, Plaintiff filed his Petition for Review from the denial of his PCR Petition with the Arizona Court of Appeals, Division One (Case No. 1 CA-CR 24- 0159 PRPC). See Doc. 81-1. Therein, Plaintiff asserts exactly the same extrinsic fraud arguments as he seeks to add here. Doc 81-1, p. 24. Plainly, Plaintiff cannot simultaneously pursue the same relief in state and federal courts, and Rooker-Feldman requires that this Court refrain from undertaking a de facto appeal. Plaintiff attempts to save his claim from Rooker-Feldman by arguing that he seeks relief from his convictions based on the alleged fraud used to procure them, not based on the Superior Court’s error. 1 Doc. 75-2 ¶ 218-219. This is a distinction without a difference. First, this ignores the fact that Plaintiff currently seeks exactly the same relief in state court. But even if Plaintiff did not have a state court appeal pending, the Ninth Circuit has made clear that allegations of wrongful exclusion of exculpatory evidence and other types of similar prosecutorial misconduct are intrinsic fraud insufficient to warrant a Rooker-Feldman exception. Dixon v. State Bar of California , 32 F. App'x 355, 356-57 (9th Cir. 2002) (holding extrinsic fraud exception inapplicable based on allegations of discriminatory prosecution, use of fabricated evidence, and wrongful exclusion of 1 The Arizona Rules of Criminal Procedure provide specific mechanisms to challenge any perceived error in the Superior Court’s order denying post-conviction relief. See Ariz. R. Crim. P. 33.14 and 33.16. Case 3:23-cv-08601-SRB-ESW Document 83 Filed 03/27/24 Page 3 of 9 4 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 exculpatory evidence). Rooker-Feldman therefore bars this Court from hearing Plaintiff’s challenge to his state court convictions, whether based upon alleged fraud or otherwise. Because this Court lacks subject matter jurisdiction to adjudicate the extrinsic fraud claim, granting Plaintiff leave to amend his complaint to add this claim would be plainly futile. 2. This Court lacks jurisdiction to hear Plaintiff’s proposed revival of his dismissed constitutional challenge to A.R.S. § 13-2923. First, res judicata and the Rooker-Feldman doctrine bar Plaintiff from reviving his constitutional challenge to A.R.S. § 13-2923 asserted in Count 2 of his proposed Second Amended Complaint. Doc. 75-2, ¶¶ 220-24. Prior to removal, the State achieved dismissal with prejudice of Plaintiff’s claim for declaratory relief based upon the alleged unconstitutionally of A.R.S. § 13-2923. Doc. 1-4 at p. 106-07, ¶¶ 68-73 (Count 1 of Plaintiff’s First Amended Complaint) with Doc. 75-2 at p. 61, ¶¶ 220-224. Federal courts must look to state law to determine the preclusive effect of a state court judgment. See Intri-Plex Techs., Inc. v. Crest Grp., Inc ., 499 F.3d 1048, 1052 (9th Cir. 2007). In Arizona, res judicata will preclude a claim when a former judgment on the merits was rendered by a court of competent jurisdiction and the matter now in issue between the same parties was determined in the former action. Hall v. Lalli , 977 P.2d 776, 779 (Ariz. 1999). Plaintiff’s proposed Count 2 seeks exactly the same relief as was sought against the State in Count 1 of Plaintiff’s First Amended Complaint and dismissed by the Superior Court. Further, the Rooker-Feldman doctrine deprives the Court of subject matter jurisdiction over claims that are “inextricably intertwined with the merits of a state-court judgment,” including claims for which “the relief requested in the federal action would effectively reverse the state court decision or void its ruling.” Cooper , 704 F.3d at 779. Plaintiff’s attempt to revive an already dismissed claim is precisely the kind of de facto appeal of a state court judgment that Rooker-Feldman forbids. Second, Plaintiff’s challenge to A.R.S. § 13-2923 is the subject of Plaintiff’s criminal case, which is currently pending in the Arizona Court of Appeals. See Doc. 81- Case 3:23-cv-08601-SRB-ESW Document 83 Filed 03/27/24 Page 4 of 9 5 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 1, pp. 18-20 (arguing that the facts introduced in Plaintiff’s criminal proceedings do not establish a “course of conduct” under A.R.S. § 13-2923(D)(1)(b)). Inexplicably, Plaintiff did not raise his constitutional challenge to § 13-2923 in his state Petition for Review. Thus, this Court’s jurisdiction over this proposed claim, even though Plaintiff has not raised these constitutional challenges in the trial court as part of his criminal case or now on appeal, is barred by the doctrine of Younger v. Harris , 401 U.S. 37 (1971) and subject to immediate dismissal. Gilbertson v. Albright , 381 F.3d 965, 972 (9th Cir. 2004) (“ Younger requires no more than an opportunity for the presentation of federal constitutional claims in the state proceeding; the federal plaintiff’s failure to avail himself of that opportunity does not mean that the state procedures are inadequate.”); see also Ariz. R. Crim P. 33.1 (permitting a pleading defendant to raise, among other things, that his plea violates the Constitution). Further, because Plaintiff is currently on probation, the trial court retains jurisdiction “to modify or clarify any condition or regulation” while Plaintiff remains on probation. See Ariz. R. Crim. P. 27.3(b)(2). Third, Plaintiff lacks standing to assert a facial constitutional challenge based on vagueness, as he attempts to do in his proposed Count 2. Plaintiff’s vagueness challenge must fail because his conduct clearly violated A.R.S. § 13-2923. Hunt v. Los Angeles , 638 F.3d 703, 710 (9th Cir. 2011) (“[T]o raise a vagueness argument, Plaintiffs’ conduct must not be ‘clearly’ prohibited by the ordinances at issue.”). Finally, the facial challenge would fail as a matter of law because, despite the volume of purported factual allegations, Plaintiff’s proposed Second Amended Complaint contains no allegations which would show that A.R.S. § 13-2923 imposes a deterrent effect on legitimate expression which is both “real” and “substantial ” Broadrick v. Oklahoma , 413 U.S. 601, 615 (1973); see also United States v. Hansen , 143 S.Ct. 1932, 1939–40 (2023) (“To justify facial invalidation, a law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep.”). Case 3:23-cv-08601-SRB-ESW Document 83 Filed 03/27/24 Page 5 of 9 6 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 For these many reasons, both of the causes of action asserted against the State in Plaintiff’s latest proposed Second Amended Complaint fail to articulate a cognizable legal theory. Thus, amendment would be wholly futile and leave to amend should be denied on this basis. B. Granting leave to amend would cause significant delay and prejudice to the State, which has just one cause of action remaining against it. Allowing Plaintiff to file his proposed Second Amended Complaint would cause significant delay in this already heavily litigated matter. This Court has entered an appropriately expeditious Scheduling Order which sets key discovery deadlines as early as April 22, 2024. Doc. 36, p. 2. This entire scheduling order would need to be set aside to allow for inevitable briefing on the sufficiency of the Second Amended Complaint, further delaying any meaningful progress toward resolution of this nearly 12-month-old case. The inevitable delay is also unjustifiable. In assessing the timeliness of an amendment, the court may “also inquire ‘whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading.’” AmerisourceBergen Corp. v. Dialysist W., Inc ., 465 F.3d 946, 953 (9th Cir. 2006) (quoting Jackson v. Bank of Hawaii , 902 F.2d 1385, 1388 (9th Cir. 1990)). At least with regard to the new extrinsic fraud claim against the State, Plaintiff concedes that he “discovered the State’s egregious disclosure violations” on July 4, 2023 and immediately sought leave to address these violations in an amended Post-Conviction Relief Petition. Doc. 75-2, ¶ 101. Plaintiff offers no explanation as to why he waited until February 20, 2024 (Doc. 56) to attempt to assert his extrinsic fraud claim for the first time in this case. This weighs in favor of denying leave to amend his complaint to add this claim now. AmerisourceBergen Corp. , 465 F.3d at 953. Allowing Plaintiff leave to file the proposed Second Amended Complaint would also cause significant prejudice to the State, which successfully achieved dismissal with prejudice of five of the six claims asserted against it in Plaintiff’s First Amended Case 3:23-cv-08601-SRB-ESW Document 83 Filed 03/27/24 Page 6 of 9 7 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 Complaint. See Doc. 1-6 at p. 35; Doc. 18 at p. 2 (clarifying that Count 7 of the First Amended Complaint remains pending against the State). Most troublingly, as discussed above, the State already achieved dismissal with prejudice of Plaintiff’s claim for declaratory relief based upon A.R.S. § 13-2923. The State has also opposed Plaintiff’s separate attempts to revive this and other dismissed claims via (1) his prior Motions for Leave to Amend (Docs. 46 and 56) and (2) his Motion to Vacate the Superior Court’s order dismissing Counts 1-5 of his First Amended Complaint (Doc. 19), a plainly improper collateral appeal in violation of the Rooker-Feldman doctrine . Doe & Assocs. L. Offs. v. Napolitano , 252 F.3d 1026, 1030 (9th Cir. 2001) (“The purpose of the doctrine is to protect state judgments from collateral federal attack.”). Were Plaintiff to be granted leave to file this latest version of Second Amended Complaint, the State would be substantially prejudiced by having to spend even more time and resources opposing this meritless claim for, essentially, the fourth time. C. Rule 15(d) cannot be used to add new claims. Plaintiff styles his proposed Second Amended Complaint as an “amended and supplemental complaint” and argues that this supplementation is permitted under Fed. R. Civ. P. 15(d). Doc. 75, p. 3. To the extent that Plaintiff seeks to style his Second Amended Complaint as a “supplemental” pleading and circumvent the strictures of Rule 15(a), this is plainly improper. “While leave to permit supplemental pleading is favored, it cannot be used to introduce a separate, distinct and new cause of action.” Planned Parenthood of S. Ariz. v. Neely , 130 F.3d 400, 402 (9th Cir. 1997) (internal quotations and citation omitted). Plaintiff’s proposed Second Amended Complaint adds several entirely new claims, including racketeering claims against various County Defendants and an extrinsic fraud claim against the State. Indeed, the racketeering claims are based in large part on alleged harms to a new, non-party, James Mitchell, the substance of which have no bearing on the twelve causes of action set forth in Plaintiff’s operative First Amended Complaint. Doc. 1-4, ¶¶ 68-182. The proposed Second Amended Complaint is not limited to a Case 3:23-cv-08601-SRB-ESW Document 83 Filed 03/27/24 Page 7 of 9 8 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 recitation of relevant events occurring after June 11, 2023, as Rule 15(d) requires. The Motion must therefore be denied in its entirety. D. Conclusion. The sole remaining claim against the State is based upon the alleged waiver of qualified and absolute immunities in A.R.S. § 1-602(E) and is—notably—one that Plaintiff has abandoned in all three versions of his proposed Second Amended Complaint. See Doc. 1-4, p. 28-29, ¶¶ 129-35. However, the State has been unable to obtain final resolution of this single claim, as it has instead had to focus its resources on opposing the many recent filings by Plaintiff which attempt to manufacture a basis for relief from his criminal conviction and sentence and obtain other ancillary relief from this Court. See , e.g ., Docs. 19, 46, 56, 57, 72, 75. The State respectfully requests that the Court again deny Plaintiff leave to amend his Complaint and enable the parties to finally litigate what is left of the claims that Plaintiff has actually pled. RESPECTFULLY SUBMITTED this 27th day of March, 2024. KRISTIN K. MAYES ATTORNEY GENERAL By: /s/ Mary M. Curtin Alice M. Jones (No. 028062) Eric K. Knobloch (No. 030269) Mary M. Curtin (No. 031973) Office of the Arizona Attorney General 2005 N. Central Ave. Phoenix, Arizona 85004 Telephone: (602) 542-3333 Alice.Jones@azag.gov Eric.Knobloch@azag.gov Mary.Curtin@azag.gov CADocket@azag.gov ACL@azag.gov Attorneys for State of Arizona Case 3:23-cv-08601-SRB-ESW Document 83 Filed 03/27/24 Page 8 of 9 9 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 CERTIFICATE OF SERVICE I hereby certify that on March 27, 2024, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF system for filing and transmittal of a Notice of Electronic filing to the following registrants, or by U.S. mail if not a registrant: James M. Jellison Rodney F.W. States JELLISON & ROBENS, PLLC 18801 North Thompson Peak Parkway Suite D235 Scottsdale, Arizona 85255 Telephone: (480) 659-4244 jim@jrlawaz.com rodney@jrlawaz.com admin@jrlawaz.com Attorneys for Ryan Forsman, William Ring, Ammon Barker and Coconino County Joseph Martin McGhee 2700 S. Woodlands Village Blvd. #300-311 Flagstaff, Arizona 86001 mcghee.v.forsman.et.al@gmail.com Plaintiff Pro Se Dara Rabin 617 N. Pinecliff Dr. Flagstaff, Arizona 86001 dara.m.rabin@gmail.com Defendant Pro Se /s/ Terrie Chastain Case 3:23-cv-08601-SRB-ESW Document 83 Filed 03/27/24 Page 9 of 9