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Daniel J. O’Connor, Jr., Bar No. 010081

Justin D. Holm, Bar No. 025202

O’CONNOR & CAMPBELL, P.C.

7955 South Priest Drive

Tempe, AZ 85284

daniel.oconnor@occlaw.com

justin.holm@occlaw.com

602-241-7000

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

MUSSALINA MUHAYMIN as 

Personal Representative of the Estate 

of MUHAMMAD ABDUL MUHAYMIN 

JR.,

Plaintiff,

vs.

CITY OF PHOENIX; an Arizona

Municipal Corporation; ANTONIO 

TARANGO; Officer OSWALD 

GRENIER; Officer KEVIN 

MCGOWAN; Officer JASON HOBE; 

Officer RONALDO CANILAO; Officer 

DAVID HEAD; Officer SUSAN 

HEIMBINGER; Officer JAMES 

CLARK; Officer DENNIS LEROUS; 

Officer RYAN NIELSON; Officer 

STEVEN WONG; and DOE 

Supervisors 1-5,

Defendants.

Case No.: 2:17-cv-04565-SPL

DEFENDANTS’ AMENDED MOTION 

TO DISMISS PLAINTIFF’S FIRST 

AMENDED COMPLAINT BASED ON 

QUALIFIED IMMUNITY

(Oral Argument Requested)

In accordance with FED. R. CIV. P. 8(a) and 12(b)(6), defendants City of 

Phoenix, Antonio Tarango, Oswald Grenier, Kevin McGowan, Jason Hobel, 
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Ronaldo Canilao, David Head, Susan Heimbigner, James Clark, Dennis Leroux, 

Ryan Nielsen, and Steven Wong (collectively the “Phoenix Defendants”), move to 

dismiss plaintiff’s First Amended Complaint. This motion is supported by the 

following Memorandum of Points and Authorities.1

In accordance with General Order 17-08, because the Phoenix Defendants’ 

motion is “based on ... qualified immunity of a public official ... the time for the 

moving party to answer ... shall be set by the Court in its order deciding the 

motion.”2 For this reason, the Court should defer the Phoenix Defendants’ 

responsive pleading deadline until the Court decides this Motion.

MEMORANDUM OF POINTS AND AUTHORITIES

Introduction

Plaintiff’s Amended Complaint asserts both federal- and state-law claims 

against the Phoenix Defendants. Counts I, II, IV, V, and VI purport to assert 42 

U.S.C. § 1983 claims to remedy alleged violations of Muhaymin’s constitutional

rights. The problem is the Counts fail to: (1) articulate the specific right asserted; 

(2) articulate specific conduct violating the right; and (3) causally tie the alleged 

violations to specific conduct by individual government actors. Plaintiff’s failure to 

clearly identify constitutional rights renders her claims against the Phoenix 

Defendants subject to qualified immunity. These Counts should be dismissed 

without leave to amend.

Most of plaintiff’s state-law tort claims should suffer a similar fate. Plaintiff 

did not follow Arizona’s notice-of-claim statute by individually identifying the facts, 

circumstances, and sum-certain settlement offer for her Battery (Count VIII), 

Intentional Infliction of Emotional Distress (Count IX), Negligent Infliction of 

 

1 A Certificate of Conferral is attached as Exhibit 1. 2 General Order 17-08, p. 3, ¶ 5(a).
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Emotional Distress (Count X), Negligent Hiring, Supervision, Retention, and/or 

Training (Count XIV), and state-law Civil Conspiracy (Count XV3) claim. This failure

bars these claims. These state-law tort claims against the Phoenix Defendants

should be dismissed with prejudice.

Plaintiff’s remaining claims fail as a matter of law. Her American’s with 

Disabilities Act (“ADA”), Arizona Civil Rights Act (“ACRA”), Negligence, and Gross 

Negligence claims are based on plaintiff’s erroneous assumption Muhaymin’s dog 

qualified as a “service animal.” The dog did not have the statutorily required 

training to qualify as a service animal. Moreover, when Muhaymin was arrested, 

the animal was unleashed and out of control. These undisputed facts render 

Counts III, XI, XII, XIII subject to dismissal as a matter of law. Plaintiff’s state-law, 

excessive-force and federal civil-conspiracy claims fail because Phoenix Police 

had a valid reason to arrest Muhaymin and did so using a reasonable amount of 

force given the circumstances. Counts VII and XV should be dismissed without 

leave to amend.

In short, the Court should entirely dismiss the Amended Complaint.

Legal Standard

Under FED. R. CIV. P. 12(b)(6), a defendant may move to dismiss when the 

action fails to allege facts stating a facially “plausible” claim for relief.4 An action is

facially plausible when it allows the Court “to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.”5 While not a “probability 

requirement,” the plaintiff must demonstrate “more than a sheer possibility that a 

defendant has acted unlawfully.”6 The court “accept[s] factual allegations in the 

 

3 Count XV contains both state- and federal-law claims. Plaintiff’s federal-law claims also fail as a 

matter of law. See discussion at pp. 16 and 17 below.

4 Bell Atlantic Corp. v. Twombly, 550, U.S. 544, 570, 127 S. Ct. 1955, 1973-74 (2007).

5 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949-50 (2009).

6 Id. (emphasis added).
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complaint as true and construe[s] the pleadings in the light most favorable to the 

nonmoving party.”7 Regardless, the court need not assume the truth of legal 

conclusions “cast in the form of factual allegations.”8 Conclusory allegations are 

“insufficient” to defeat a motion to dismiss.9

Where the relevant inquiries turn on the reasonableness of conduct under the 

circumstances, video recordings of the incident are compelling evidence.10 A video 

of the incident can render the facts indisputable.11 Under these circumstances, 

reasonableness becomes a “pure question of law.”12 Many of the officers involved in 

Muhaymin’s arrest were wearing body cameras.13

Under Fed. R. Civ. P. 12(d), when a Rule 12(b)(6) motion presents matters 

outside of the pleadings, the motion is to be treated as one for summary judgment. 

By attaching the body-camera videos to this motion, the Phoenix Defendants 

acknowledge this motion should be treated as one for summary judgment.

Facts14

On January 4, 2017, at approximately 9:20 a.m., Muhammad Muhaymin, a 

homeless man, entered the Maryvale Community Center with his Chihuahua, 

Chaquita. Chaquita was not leashed or tethered. The Community Center manager, 

Antonio Tarango approached Muhaymin and asked him to leave until Chaquita 

was leashed. The men argued and “chest bumped” as Muhaymin forced his way 

toward the men’s restroom. When Muhaymin chest bumped Tarango another

 

7 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

8 Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011).

9 Iqbal, 556 U.S. at 678, 19 S. Ct. at 1949-50.

10 See, e.g. Rodeman v. Foster, 767 F.Supp.2d 1176, 1183-84 (D. Col. 2011).

11 Id. at 1184.

12 Id. at 1183-84 (citing Scott v. Harris, 550 U.S. 372, 381, n. 8, 127 S. Ct. 1769, 1776 (2007)).

13 The videos are attached as Exhibit 2. All exhibits are authentic copies of the originals.

14 The following summary of facts is gleaned from Phoenix Police Department Incident Report No. 

201700000019424, attached as Exhibit 3 and Exhibit 2. The Incident report is nearly 230 pages

long. The Phoenix Defendants attach a PDF of the report on the Exhibit DVD. 
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Community Center employee called police.

Officers began arriving at 9:32 a.m. and observed Muhaymin arguing with

Tarango outside the men’s room. Initially Muhaymin refused to provide 

identification, but eventually provided his name so he could use the bathroom. 

During these interactions, Muhaymin agreed to keep Chaquita under control by 

holding her.

While Muhaymin used the bathroom, officers ran his name and discovered 

an outstanding warrant from the City of Mesa. Officers decided they would escort 

him outside and arrest him. When Muhaymin finished using the restroom, officers

escorted him outside and placed him under arrest. Muhaymin refused to put 

Chaquita down. Instead, he requested officers call his “sensei” to come and take 

care of the dog. When Muhaymin refused to put the dog down, he was placed 

against the wall, and his left wrist was then brought behind his back and 

handcuffed. 

During the struggle, Muhaymin thrashed back and forth, pulling left and right 

to break free from officers. In addition, he repeatedly tensed and then went limp as 

he struggled with officers. An officer delivered an elbow strike to Muhaymin’s right 

shoulder to get him to put down the dog and release his right arm. Officers 

ultimately used a baton under Muhaymin’s right arm to leverage his wrist free. 

Muhaymin was double-cuffed (two sets of handcuffs, one on each wrist, linked in 

the middle) with his hands behind his back.

After handcuffing Muhaymin, officers escorted him to a police SUV. 

Muhaymin continued shouting about his “sensei” and struggling with officers 

tensing and going limp as described above. When Muhaymin would go limp, 

officers would raise his arms behind him in to encourage him to walk on his own. 

Muhaymin continued to kick, pull, and yell.
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Before loading Muhaymin into the SUV, officers searched him. One officer

knew he had knives on him during prior arrests. While being searched, Muhaymin 

repositioned his arms in front of his body. He then pushed off the SUV, forcing 

officers to take him to the ground. It took four officers to restrain Muhaymin.

Officers eventually disconnected the handcuffs and re-handcuff Muhaymin 

with a single pair of cuffs behind his back. During the struggle, Chaquita repeatedly 

attempted to bite several officers. One officer removed his Taser and “sparked” it 

to scare the dog away. The Taser was not deployed against either Muhaymin or 

Chaquita during the arrest.

Once Muhaymin was handcuffed and restrained, he went limp like he had 

repeatedly throughout the struggle. Shortly after the officers stood up, Muhaymin 

vomited. Officers rolled him onto his side, but Muhaymin stopped breathing. 

Muhaymin’s pulse was faint, so officers cleared his airway, began chest 

compressions, and requested medical support. Officers continued chest 

compressions until EMTs arrived. EMTs took over Muhaymin’s care and 

transported him to Maryvale Hospital, where he was pronounced dead.

Other than the one elbow strike noted above, no other officers punched, 

struck, or kicked Muhaymin. No Tasers, pepper spray, or electrical restraints were 

used against him. While Muhaymin was resisting arrest, officers noted his extreme 

strength. At least one witness believed officers were more gentle with Muhaymin 

than his behavior justified.

Discussion

1. Phoenix Police did not use excessive force against Muhaymin.

42 U.S.C. § 1983 provides a cause of action against any “person who, under 

color of any statute, ordinance, regulation, custom, or usage of any State” deprives 
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another of a protected right.15 1983 claims require the plaintiff to establish the 

defendant deprived her of a guaranteed right or privilege.16 The test has become 

two-prong requiring the plaintiff establish: (1) “the conduct complained of has been 

committed under the color of state law;” and (2) the “conduct worked a denial of rights 

secured by the Constitution or laws of the United States.”17 Unless a plaintiff satisfies 

both prongs, her 1983 claim fails, and the Court should dismiss it.

Negligence—and even gross negligence—are not enough to support a 1983 

action.18 The plaintiff must establish facts demonstrating a specific intent to injure

plaintiff.19 Importantly, courts do not infer intent from negligent or grossly negligent 

conduct—the government official must intend to injure the plaintiff.20 Plaintiff must 

also establish a causal connection between the government actors’ conduct and her 

injuries or the claim fails.

21

The right to make an arrest “necessarily carries with it the right to use some 

degree of physical coercion or threat thereof to effect it.”22 Courts evaluate 

excessive-force claims in terms of the officer’s objective reasonableness based on 

information possessed during the arrest.23 The court must balance the right 

intruded on against the government interest at stake, the nature of the crime, the 

imminent threat of harm to the police and others, and whether the arrestee was 

resisting arrest.24 Importantly, objective reasonableness is based on the 

 

15 42 U.S.C. § 1983.

16 Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 98 S.Ct. 1729, 1733 (1978).

17 Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995). See also James v. Tex. Collin Cty., 535 

F.3d 365, 373 (5th Cir. 2008)(same).

18 Gazette v. City of Pontiac, 341 F.3d 1061, 1066-67 (6th Cir. 1994).

19 Id.

20 Id.

21 Id.

22 Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989).

23 Id., at 396-97, 109 S. Ct. at 1872.

24 Id. at 396, 109 S. Ct. 1872.
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perspective of the officer at the scene and not the 20/20 vision of hindsight.25 If the 

alleged conduct is justified under federal law, state-law excessive force claims also 

fail.26

Muhaymin committed an assault. Police officers discovered he had an 

outstanding warrant, which presented valid basis for his arrest. The records, 

witness statements, and videos show Muhaymin behaving erratically and as if he 

were on drugs. Muhaymin also displayed extreme strength. Throughout his arrest 

Muhaymin tensed up, thrashed about, pushed, and kicked at officers. The videos 

show Muhaymin was not compliant with officer commands. The force exerted by 

officers throughout the arrest was reasonable and necessary based on 

Muhaymin’s level of resistance during the arrest. Once Muhaymin got his hands in 

front of him to push off the police SUV, officers used reasonable force to remove 

the handcuffs and reposition them to Muhaymin’s back.

There are legitimate officer-safety reasons an arrestee is handcuffed behind 

his back. The Amended Complaint does not identify conduct demonstrating a 

specific action of the Phoenix Police was an excessive-force violation or caused 

Muhaymin’s death. Counts I and VII (Federal and State Excessive Force) of the 

Amended Complaint should be dismissed without leave to amend.

2. Phoenix Police did not fail to protect Muhaymin. 

Police officers have “an affirmative duty to intercede on the behalf of a citizen 

whose constitutional rights are being violated in their presence by other officers.”27

An officer who fails to intervene is liable for the citizen’s preventable harm.28 To 

 

25 Id.

26 Marquez v. City of Phoenix, 693 F.3d 1167, 1176 (9th Cir. 2012) (holding where officers acted 

reasonably under federal excessive-force standard, state-law claims also fail).

27 O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988).

28 Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994.
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establish liability the citizen must show: 1) officers used excessive force; 2) the arrest 

was unjustified; and 3) a constitutional violation.29 In addition, the citizen must 

demonstrate officers had a “realistic opportunity to intervene and prevent the harm 

from occurring.”30 The Amended Complaint fails to meet this standard.

The force used against Muhaymin was both reasonable and necessary, given 

his behavior. Setting this argument aside, plaintiff cannot show Muhaymin’s arrest

was unjustified. It is undisputed Muhaymin had an outstanding warrant for his 

arrest. The “existence of probable cause to arrest constitutes justification and is a 

complete defense to an action for false arrest.”31 There is no evidence officers 

failed to intervene on Muhaymin’s behalf during his arrest, so Count II of the 

Amended Complaint should be dismissed without leave to amend.

3. The Phoenix Defendants properly trained and supervised their 

subordinates.

A municipality cannot be held liable solely because it employs a tortfeasor, but 

municipalities are not insulated from 1983 claims.32 Instead, failure to train/supervise 

can be the basis for a claim against a city.33 Liability “only attach[es] to a municipality 

when its failure to train amounts to deliberate indifference to the rights of persons 

with whom the police come into contact.”34 The municipal conduct must “reflect a

deliberate or conscious choice by the municipality”—something rising to the level of

a “policy.”35

 

29 Id.

30 Id.

31 Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (emphasis added).

32 Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166, 

113 S. Ct. 1160, 1162 (1993).

33 See, e.g. City of Canton v. Harris, 489 U.S. 378, 387, 109 S. Ct. 1197, 1204 (1989) (emphasis 

added).

34 Id. at 388, 109 S. Ct. at 1204-05.(emphasis added).

35 Id. at 389, 109 S. Ct. at 1204-05.
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The alleged policy need not be formal, but must stem from an “officially 

designated legislative organ” or the decision of a “final and unreviewable” policy

maker.36 Regardless of the government actor, liability only attaches if the decision is 

“final.”37 Where the decision maker holds discretion to choose among several 

options, the choice alone does not give rise to municipal liability.38 If the choice is 

discretionary, it does not rise to the level of a policy unless it is “final and 

unreviewable” and is “not constrained by the official policies of superior officials.”39

Importantly, the “policy” must “represent a regularly occurring event.”40 It must be “so 

permanent and well settled as to have the force of law.”41

In a failure-to-train/supervise claim, plaintiff must show the Phoenix 

Defendants’ training policies and/or supervisor were: (1) inadequate; (2) reflect “a 

deliberate or conscious choice by [the] municipality” to violate the rights of the public; 

and (3) specifically caused plaintiff’s alleged constitutional injury.42 Plaintiff must put 

forth specific facts identifying the policy, the officer’s specifically alleged violations, 

and the causal link between the violations and the injury.43

Deliberate indifference is a “high” evidentiary burden.44 To establish it plaintiff 

must show the Phoenix Defendants had: “(1) subjective knowledge of a serious risk 

of harm; and (2) disregarded...that risk; (3) by conduct that is more than mere 

negligence.”45 Plaintiff must show the municipality and supervising officers knew of 

 

36 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2036 

(1978). See also Ryan v. City of Detroit, 977 F.Supp.2d 738, 747-48 (E.D. Mich. 2013) (quoting 

Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83, 106 S. Ct. 1292 (1986)).

37 Id. at 748.

38 Id.

39 Id.

40 Id.

41 Id.

42 Andrews v. Fowler, 98 F.3d 1069, 1076 (5th Cir. 1996).

43 Id.

44 Whitley v. Hanna, 729 F.3d 631, 641 (5th Cir. 2013).

45 Cagle v. Sutherland, 334 F.3d 980, 987 (11th Cir. 2003).
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a “pattern” of inappropriate conduct, failed to take “obvious” steps to prevent or stop 

it, and the failure caused an injury to a constitutionally protected right.46 Actual 

knowledge is “critical to the inquiry.”47 Mere negligence and even gross negligence 

are not enough.48 Plaintiff must alleged facts demonstrating actual knowledge and a 

specific intent to injure.49 Without both the claim fails.

Counts IV, V, and VI cannot meet this high evidentiary burden for five reasons. 

First, the Counts do not provide fact-specific allegations of a pattern of inappropriate 

conduct by the Phoenix Defendants.50 Instead, they restate legal conclusions 

couched as facts and ambiguously attribute those “facts” to the “defendants” with no 

specific attributions to the individual defendants. Second, the Counts identify no 

specific, non-speculative steps the Phoenix Defendants could have taken to stop the 

alleged behavior. Third, for the reasons discussed above, plaintiff identifies no 

constitutionally protected right violated by the Phoenix Defendants. Fourth, the 

Amended Complaint identifies no specific Phoenix Police Department policies, 

customs, or usages violating plaintiff’s constitutional rights. Similarly, the Amended 

Complaint makes no specific allegations asserting the officers involved possessed

the requisite final and unreviewable decision-making authority required by the 

analysis above. Finally, the Amended Complaint offers nothing to demonstrate how 

Muhaymin’s alleged deprivations are causally connected to a final, unreviewable

Phoenix policy. 

For these reasons, Counts IV, V, and VI should be dismissed without leave to 

amend.

 

46 Whitley, 729 F.3d at 640.

47 Id. at 641.

48 Id.

49 Id.

50 A training system similar to the one Phoenix follows (on-the-job training combined with mandatory 

attendance of the police academy) has been reviewed and found constitutionally adequate. See, e.g. 

Andrews, 98 F.3d at 1076-77.
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4. The Phoenix Defendants did not discriminate against Muhaymin.

The Amended Complaint alleges Muhaymin’s Chihuahua, “Chaquita” is a 

“service” animal to help Muhaymin with alleged diagnoses of PTSD and 

claustrophobia. Muhaymin used the dog for emotional support and comfort.

Comfort animals do not qualify as “service” animals under the ADA51 or the Arizona 

Civil Rights Act (“ACRA”).

52 Rather, to qualify the dog must be trained to perform 

specific tasks to benefit the disabled individual.53 To be a service animal Chaquita

must have been trained to specific respond to Muhaymin’s psychiatric actions. 

Chaquita lacked specific training and was only present to “help calm” Muhaymin

so she does not qualify as a service animal.54

The ADA and ACRA carve out exceptions allowing the exclusion of a 

“service animal” if: 1) its behavior directly threatens the health or safety of others; 

2) it has a history of such behavior; or 3) is not under the control of the handler.55

“Under control” means the animal must be harnessed, leashed, or tethered while 

in public places.56 The animal may not wander free. “Under control” also means 

the dog is not allowed to bark in normally quiet places.57 Chaquita has history of 

aggressiveness toward others, barking, growling, and snapping at communitycenter staff. Chaquita was not leashed during Muhaymin’s arrest. Neither the 

officers nor community-center staff attempted to exclude Chaquita from the 

Community Center because she was a service animal. Instead, the attempt to 

 

51 See 28 CFR 35.104 (2010) (defining “Service Animals”).

52 ARIZ. REV. STAT. §§ 11-1024 and 41-1492 et seq. The rules and exceptions for service animals 

under ACRA are the same as those under the ADA.

53 28 CFR 35.104 and ARIZ. REV. STAT. § 11-1024(A).

54 Id. (“The crime deterrent effects of an animal’s presence and the provision of emotional support, 

well-being, comfort, or companionship do not constitute work or tasks for the purposes of this 

definition.” (emphasis added)).

55 See 28 CFR 35.136(b) and 35.139(a). See also ARIZ. REV. STAT. § 11-1024(B).

56 28 CFR 35.136(d) and ARIZ. REV. STAT. § 11-1024(L)(6). 57 28 CFR 35.136(b)(2).
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remove her was only because she was not properly leashed.

Even if Chaquita was a service animal, Muhaymin was required to comply 

with all local dog-licensing and registration laws. It did not violate the ADA for 

officers or community-center staff to ask Muhaymin to produce paperwork 

establishing Chaquita was properly licensed and registered. Plaintiff’s ADA and 

ACRA discrimination claims fail as a matter of law, and Counts III, XI, XII, and XIII 

should be dismissed without leave to amend.

5. Qualified immunity applies to the Phoenix Defendants.

If the Court finds the above legal analysis unpersuasive, there is another 

overarching reason the Court should dismiss the Amended Complaint: qualified 

immunity applies to the Phoenix Defendants. Courts use a two-part test to whether 

officials are entitled to qualified immunity.

58 First, the Court must find a violation of a 

constitutional right.59 Second, the Court must determine the alleged constitutional 

right was clearly established during the alleged misconduct.

60 Plaintiff’s claims 

cannot satisfy either burden. 

The discussion above articulates why the Phoenix Defendants believe no 

constitutional right was violated, so this analysis will focus on the test’s second prong.

If plaintiff’s claims do not identify violation of an established constitutional right, then 

qualified immunity applies to the Phoenix Defendants.

61 Where qualified immunity 

applies to the conduct of the underlying officials, the Court should also dismiss 

municipal-liability claims based on the conduct.62

 

58 Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815-16 (2009).

59 S.B. v. Cty. of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017).

60 Id.

61 See, e.g. S.B., 864 F.3d at 1015-16.

62 See, e.g. Doe v. Village of Arlington Heights, 782 F.3d 911, 916 (dismissing municipal liability 

claims against the village (Count VI) after finding qualified immunity applied to individual officer 

conduct).
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“Clearly established” means “the contours of the right must be sufficiently clear 

that a reasonable official would understand that what [the official] is doing violates 

that right.”63 While this standard “does not require a case directly on point...existing 

precedent must have placed the statutory or constitutional question beyond 

debate.”64 The inquiry “must be undertaken in the specific context of the case, not as 

a broad general proposition.65 Nor should the Court define “clearly established law 

at a high level of generality.”66 As the Ninth Circuit has articulated the standard, “only 

the ‘plainly incompetent’ officer will not enjoy qualified immunity.67

The U.S. Supreme Court has “repeatedly...stressed the importance of 

resolving immunity questions at the earliest possible stage in litigation.”68 “[Q]ualified 

immunity is important to society as a whole, and ... as an ‘immunity from suit,’ [it] is 

effectively lost if a case is erroneously permitted” to proceed into discovery.69

To meet this burden, plaintiff must show, as of January 4, 2017, any court 

had upheld the purported right in a factually similar case. In other words, plaintiff

must show through established case law defendants used excessive force against 

a man, who was high on methamphetamine, with an uncontrolled dog, who 

assaulted a government employee, and then actively resisted legitimate arrest on 

a valid warrant, who later died in in custody. There are no factually similar cases 

demonstrating the alleged violations of Muhaymin’s constitutional rights were 

clearly established on the day he was arrested. 

As demonstrated through the discussion above, the Amended Complaint 

does not articulate specific factual allegations of specific constitutional violations 

 

63 S.B., 864 F.3d at 1015.

64 Id. (emphasis added).

65 Id.

66 Id.

67 Id. (emphasis added).

68 Pearson, 555 U.S. at 232, 129 S. Ct. at 815-16.

69 S.B., 864 F.3d 1015 (emphasis added).
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against the individual defendants. There is no evidence the officers used excessive 

force. At least one witness described the officer’s conduct toward Muhaymin as 

“less rough” than the circumstances dictated. There is no evidence to establish 

deliberate indifference by the officers. Nor can Plaintiff establish failing to 

supervise/train the officers and employees. Finally, the Amended Complaint does 

not specifically identify any specific policy or procedure allegedly violated by 

Defendants.

The vague wording of the Amended Complaint belies the fact Muhaymin’s 

rights were not sufficiently established. The complaint does not clearly articulate 

which rights were violated by whom and through what specific conduct. Instead, it 

pleads legal conclusions as “facts.” The Phoenix Defendants are entitled to 

qualified immunity for their alleged conduct and because qualified immunity 

applies, plaintiffs’ federal-law claims should be dismissed.

6. Plaintiff violated the requirements of ARIZ. REV. STAT. § 12-821.01.

ARIZ. REV. STAT. § 12-821.01 requires persons with claims against a public 

entity or public employee to file a notice of claim containing “facts sufficient to 

permit the public entity or public employee to understand the basis upon which 

liability is claimed.”70 The notice must “also contain a specific amount for which the 

claim can be settled and the facts supporting the amount.”71 The notice-of-claim 

statute is “clear and unequivocal,” and failing to comply with any aspect of the 

statute prevents a plaintiff’s claim from going forward.72 A plaintiff’s failure to 

comply with this requirement is not excused by actual notice or substantial 

compliance.73

 

70 See ARIZ. REV. STAT. § 12-821.01(A)

71 Id.

72 Deer Valley Unified Sch. Dist. v. Houser, 214 Ariz. 293, ¶ 8, 296,152 P.3d 490, 493 (2007).

73 Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 527, ¶ 9, 144 P.3d 1254, 1256 

(2006).
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The purpose of the notice-of-claim statute is threefold: (1) it allows the public 

entity to investigate and assess its potential liability; (2) it permits the entity to 

consider the possibility of settling the claim before litigation; and (3) it assists the 

entity in its financial planning and budgeting.74 These underlying purposes help to 

“ensure that claimants will not demand unfounded amounts that constitute ‘quick 

unrealistic exaggerated demands.’”75 Absent a factual explanation of how the 

claimant supports her claims and settlement demand, public entities cannot 

realistically evaluate the claim and determine whether to settle or proceed with 

litigation.

Several of plaintiff’s state-law claims are barred by her failure to comply with 

the notice-of-claim statute. Plaintiff’s Notice only identifies her state and federal 

discrimination and excessive-force claims. The Notice provides no facts or details 

identifying what the Amended Complaint now describes as Muhaymin’s wrongfuldeath/survival actions for battery, intentional infliction of emotional distress, 

negligent infliction of emotional distress, state-law negligent hiring, supervision, 

retention and training, and state-law civil conspiracy. Plaintiff’s failure to articulate 

the facts and surrounding circumstances justifying these causes of action bars 

them. Counts VIII, IX, X, XIV, and the state-law components of Count XV should 

be dismissed without leave to amend.

7. Phoenix Police did not engage in civil conspiracy because they had a 

valid basis to arrest Muhaymin.

Civil conspiracy requires a plaintiff allege the existence of: 1) a conspiracy; 

2) to deprive a person of equal protection under the law; 3) by an overt act, and 4) 

either a personal injury or the depravation of a Constitutional right.76 The key is the 

 

74 Deer Valley, 214 Ariz. at 295-96, ¶ 9, 152 P.3d at 492-93. See also Martineau v. Maricopa 

Cty., 207 Ariz. 332, 335-36, ¶ 19, 86 P.3d 912, 915-16 (Ariz. App. 2004).

75 Id.

76 Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).
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plaintiff must show by clear and convincing evidence the defendants agreed to 

accomplish an unlawful purpose with a tort, which caused damages.77 Importantly, 

in an allegation of unlawful arrest, probable cause to arrest the individual is an 

absolute defense to a civil-conspiracy claim because the existence of a valid 

reason to arrest the individual means the individual was not deprived of a 

constitutional right.

78

While Phoenix officers investigated Muhaymin’s alleged assault of Tarango 

they requested Muhaymin’s name. When officers ran Muhaymin’s name they 

discovered he had a valid, outstanding warrant from the City of Mesa for failure to 

appear. The warrant gave officers probable cause to arrest Muhaymin. In short, 

because of Muhaymin’s outstanding warrant, his arrest was valid, and he was not 

deprived of any constitutional right. Count XV fails as a matter of law.

Conclusion

For these reasons, the City Defendants respectfully request the Court dismiss 

plaintiff’s First Amended Complaint with prejudice and without leave to amend.

DATED: April 6, 2018.

O’CONNOR & CAMPBELL, P.C.

By: /s/ Justin D. Holm

Daniel J. O’Connor, Jr.

Justin D. Holm

Attorneys for Defendants

 

77 Hearn v. R.J. Reynolds Tobacco Co., 279 F.Supp.2d 1096, 1117 (D. Ariz. 2003). See also In 

Re Ariz. Theranos, Inc. Litigation, 256 F.Supp.3d 1009, 1037 (D. Ariz. 2017).

78 Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007) (“a false arrest claim cannot lie 

when the challenged arrest was supported by probable cause”).
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CERTIFICATE OF SERVICE

I hereby certify that on April 6, 2018 I electronically filed the foregoing with 

the Clerk of the Court for the U.S. District Court, District of Arizona, using the 

CM/ECF System. A Notice of Electronic Filing will be served to the following 

registered participants:

David A. Chami

PRICE LAW GROUP, APC 

1204 E Baseline Rd., Ste. 102 

Tempe, AZ 85283

Attorney for plaintiff 

Haytham Faraj

LAW OFFICES OF HAYTHAM FARAJ 

1935 W Belmont Ave. 

Chicago, IL 60657

Attorney for plaintiff

A copy will be mailed this same date to:

HONORABLE STEVEN P. LOGAN

United States District Court

Sandra Day O’Connor U.S. Courthouse, Suite 521

401 West Washington Street, SPC 82

Phoenix, AZ 85003

By: /s/ Amanda Bennett