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

Kathleen L. Wieneke, Bar #011139

Christina Retts, Bar #023798

WIENEKE LAW GROUP, PLC

1095 West Rio Salado Parkway, Suite 209

Tempe, Arizona 85281

Telephone: (602) 715-1868

Fax: (602) 455-1109

Email: kwieneke@wienekelawgroup.com

Email: cretts@wienekelawgroup.com

Attorneys for Defendants City of Mesa, Brian 

Elmore, Christopher Doane, Bryan Cochran, 

and Richard Gomez

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Monique Portillo,

Plaintiff,

vs.

Philip Brailsford, an Officer of the Mesa, 

Arizona, Police Department, Individually; City 

of Mesa, Arizona, and Arizona municipal 

corporation, acting through John Meza, Chief 

of Police City of Mesa, in his Official 

Capacity; Charles J. Langley, an Officer of the

Mesa, Arizona, Police Department,

Individually; Brian Elmore, an Officer of the 

Mesa, Arizona, Police Department,

Individually; Christopher Doane, an Officer of 

the Mesa, Arizona, Police Department, 

Individually; Bryan Cochran, an Officer of the 

Mesa, Arizona, Police Department,

Individually; Richard Gomez, an Officer of the 

Mesa, Arizona, Police Department, 

Individually; John/Jane Does I-5, Officers of 

the Mesa, Arizona, Police Department whose

identities have been withheld from Plaintiff, 

Individually,

Defendants.

Case No.: 2:18-cv-00178-PHX-SRB

DEFENDANTS CITY OF MESA, 

BRIAN ELMORE, CHRISTOPHER 

DOANE, BRYAN COCHRAN AND 

RICHARD GOMEZ’S MOTION 

TO DISMISS PLAINTIFF’S 

SECOND AMENDED 

COMPLAINT

(Jury Trial Requested)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants City of Mesa, 

Brian Elmore, Christopher Doane, Bryan Cochran, and Richard Gomez (“City of Mesa 

Defendants”) move to dismiss Plaintiff’s Second Amended Complaint. Plaintiff’s Second

Amended Complaint must be dismissed because Plaintiff failed to timely assert her 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 1 of 14
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

2

amorphous claims against the City of Mesa Defendants within the two-year statute of 

limitations. In failing to do so, her claims against them do not relate back to her original, 

timely-filed Complaint, cannot be cured by any further amendment, and must be 

dismissed.

Moreover, Plaintiff fails to identify the officer responsible for her allegedly 

unlawful detention, for which the officer had reasonable suspicion, thus requiring

dismissal as a matter of law.

I. BACKGROUND. 

A. Relevant Facts

On January 18, 2016, Plaintiff was a guest at La Quinta Inn & Suites in Mesa.

(Dkt. 39, ¶¶ 16, 18.) That evening, another guest, Daniel Shaver, invited Plaintiff and her 

colleague, Luis Nuñez, to his room to socialize. (Id., ¶ 17.) While Plaintiff was in 

Shaver’s room, a hotel staff member called 911, reporting that someone had observed an 

individual pointing a gun out of a hotel window. (Id., ¶¶ 18, 132.) One of the front desk 

employees identified the room as Shaver’s. (Id., ¶¶ 19-20, 26.)

In response to the call, a team of Mesa Police Department officers, including 

Defendants Brailsford, Langley, Cochran, Doane, Elmore, and Gomez arrived at the hotel.

(Id., ¶ 25.) After receiving a call from police, Plaintiff and Shaver (Nuñez had left) exited 

the room and were instructed to lie on the ground. (Id., ¶¶ 49, 69-71, 135.) Plaintiff was 

taken into custody. (Id., ¶ 86.) Shaver was instructed to crawl toward police. (Id., ¶ 82.)

As he did so, his athletic shorts fell from his waist. (Id., ¶¶ 90, 93.) He moved and 

Defendant Brailsford shot him. (Id., ¶¶ 93-94.)

While officers secured the scene, they relocated Plaintiff to a bench outside the 

hotel. (Id., ¶ 124.) She alleges that she did not know the reason for her detention. (Id., ¶¶ 

125-126.) She was eventually released and assigned to a new hotel room. (Id., ¶¶ 128-

130.)

/ / /

/ / /

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 2 of 14
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

3

B. Procedural Background

Significant publicity and multiple lawsuits arose from this chain of events:

January 10, 2017 – Shaver Lawsuit: On January 10, 2017, Shaver’s parents filed a 

wrongful death lawsuit in Maricopa County Superior Court.

January 17, 2017 - Sweet Lawsuit: On January 17, 2017, Laney Sweet, the mother 

of Shaver’s children, filed suit in the District of Arizona against the City of Mesa, 

Defendant Brailsford, and the individual City of Mesa Defendants, Elmore, Doane, 

Cochran, and Gomez. See Sweet v. City of Mesa, et al., No. 2:17-cv-00152-BSB (D. Ariz. 

Jan. 17, 2017). On behalf of Shaver’s minor children and his estate, she alleged wrongful 

death claims, as well as federal civil rights claims, pursuant to 42 U.S.C. § 1983. Sweet’s 

lawsuit was ultimately consolidated with the Shaver lawsuit.

December 7, 2017 – Defendant Brailsford Acquitted: Defendant Brailsford was

charged with murder and criminally tried. On December 7, 2017, he was acquitted.

Plaintiff was a testifying witness at Brailsford’s trial. The officers she now names also 

testified.

January 17, 2018 – Plaintiff Files Suit: On January 17, 2018 – a year after Sweet 

first filed suit against the City of Mesa Defendants and others, and the day the statute of 

limitations expired on her claims – Plaintiff filed suit in this Court against Defendant 

Brailsford, and “John Does 1-7, Officers of the Mesa, Arizona, Police Department, 

Individually and in their Official Capacities. (Dkt. 1.) The inclusion of “John Doe” officer 

defendants was curious, given Sweet’s filing a year prior and Plaintiff’s actual contact 

with Ms. Sweet by text message and phone after the incident.

Pursuant to 28 U.S.C. § 1983, Plaintiff alleged a Fourth Amendment unlawful 

arrest and detention claim (Count I), and a claim for the unlawful deprivation of property, 

with respect to a purse and jacket belonging to Plaintiff. Plaintiff did not name the City of 

Mesa or any of the individual City of Mesa Defendants in her original Complaint.

April 19, 2018 – Plaintiff Amends Her Complaint: On April 19, 2018, Plaintiff 

filed a First Amended Complaint against the original defendants – Defendant Brailsford 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 3 of 14
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

4

and “John Does 1-7.” (Dkt. 12.) She still does not add the City of Mesa or the individual 

City of Mesa Defendants. Plaintiff’s claims remain the same. 

October 26, 2018 - Plaintiff’s Second Amended Complaint: On October 26, 2018

– nine months after the expiration of the statute of limitations in this case and a year and 

nine months after Sweet filed suit identifying the individual City of Mesa Defendants –

Plaintiff filed a Second Amended Complaint. For the first time, Plaintiff identified the 

City of Mesa and individual City of Mesa Defendant officers Elmore, Doane, Cochran, 

and Gomez as Defendants. (Dkt. 39.) She also continued to list “John/Jane Does 1-5, 

Officers of the Mesa, Arizona, Police Department.” (Dkt. 39.)

Pursuant to 28 U.S.C. § 1983, Plaintiff alleged that Defendant Brailsford and 

Defendants Elmore, Doane, and Gomez violated her Fourth and/or Fourteenth 

Amendment rights to be free from unreasonable arrest and detention (Count I).1 She also 

added a Monell claim against Defendant City of Mesa (Count II).

The untimely addition of the City of Mesa Defendants is inexcusable, particularly 

in light of the fact that Plaintiff was a witness at Brailsford’s trial nine months earlier,

where the identities of the officers present when Shaver was shot would have been 

discussed ad nauseum, and that Plaintiff was communicating with Ms. Sweet by phone.

II. PLAINTIFF’S CLAIMS ARE BARRED BY THE STATUTE OF 

LIMITATIONS.

A. Plaintiff’s Claims Against the City of Mesa Defendants are Barred by the 

Statute of Limitations

The “wrongful detention” alleged in Plaintiff’s Second Amended Complaint 

occurred on January 18, 2016. (Dkt. 39, ¶¶ 25, 31, 37, 40, 101.) Plaintiff filed her original 

Complaint against Defendant Brailsford and “John Doe” officers on January 17, 2018.

(Dkt. 1.) She did not name any of the individual City of Mesa Defendants, nor did she 

name the City of Mesa, in spite of the fact that their identities were (and had been) public 

 1 Defendant Cochran is not mentioned in Count I.

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 4 of 14
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

5

knowledge.

2 The City of Mesa Defendants were added nine months later, via Plaintiff’s 

Second Amended Complaint. (Dkt. 39.)

State law determines the statute of limitations for actions brought under 42 U.S.C. 

§ 1983. See Strung v. Anderson, 452 F.2d 632 (9th Cir. 1971). The statute of limitations 

for all Section 1983 claims is the forum state’s statute of limitations for personal injury 

torts. See Wilson v. Garcia, 471 U.S. 261, 279 (1985). In Arizona, this period is two years.

See A.R.S. § 12-542. Thus, the statute of limitations for Plaintiff’s Section 1983 claims 

against the City of Mesa Defendants expired two years from January 18, 2016 - on 

January 17, 2018 (the day Plaintiff originally filed suit). 3 Incomprehensibly and 

inexcusably, Plaintiff failed to file suit against the City of Mesa Defendants within the 

statute of limitations. Her claims against them therefore fail.

B. Plaintiff’s Claims Against the City of Mesa Defendants Do Not Relate 

Back to the Original Complaint

In federal court, fictitious-party pleading is disfavored and, in some circuits, 

forbidden. See Craig v. United States, 413 F.2d 854, 856 (9th Cir. 1969); see also

Tolefree v. Ritz, 382 F.2d 566, 567 (9th Cir. 1967) (holding that it was proper to dismiss 

action as to fictitious defendants); Sigurdson v. Del Guercio, 241 F.2d 480 (9th Cir. 1956)

(“These John Doe complaints are dangerous at any time. It is inviting disaster to allow 

them to be filed and to allow fictitious persons to remain defendants if the complaint is 

still of records”); Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (per curiam)

(in federal court, “fictitious pleading is not permitted”). Identifying Doe defendants 

“simply by a title held by numerous other individuals . . . fails to provide the specificity 

required to avoid the fictitious-party pleading rule.” Isles v. Doe, 2:18-cv-632, 2018 U.S. 

Dist. LEXIS 85234, at *2 (M.D. Fla. May 22, 2018). What’s more, “[a] fictitious name . . 

 2 When Plaintiff originally filed suit, she had already been a witness in Defendant 

Brailsford’s criminal trial and was in contact with the mother of Shaver’s children, Sweet, 

by phone. Sweet had filed suit a year earlier and knew the identities of the City of Mesa 

Defendants.

3 Plaintiff’s Complaint contained the wrong date for the incident. 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 5 of 14
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

6

., when the real defendant cannot be readily identified for service, is insufficient to sustain 

a cause of action.” Williams v. DeKalb Cnty. Jail, 638 F. App’x 976, 976-77 (11th Cir. 

2016).

“The only purpose the naming of fictitious defendants could possibly serve is to 

make it possible to substitute named defendants after the statute of limitations has run. But 

Rule 15(c), Federal Rules of Civil Procedure, provides the only way in which defendants

not accurately named in a pleading before the limitation period has run, may be accurately 

named afterwards.” Craig, 413 F.2d at 856 (emphasis added). And Rule 15(c) does not

account for fictitious defendants. Thus, “[i]t is wholly immaterial, insofar as the 

application of that rule is concerned, whether fictitious defendants were named prior to the 

running of the statute.” Id. In other words, the fact that Plaintiff previously identified 

fictitious City of Mesa Police officers is immaterial to the analysis of whether Plaintiff’s 

claims against the City of Mesa Defendants relate back to the timely-filed original 

Complaint.

Rule 15(c)(1)(C) governs whether a pleading relates back. See Krupski v. Costa 

Crociere S.p.A., 560 U.S. 538, 541 (2010) (“Rule 15(c) of the Federal Rules of Civil 

Procedure governs when an amended pleading ‘relates back’ to the date of a timely filed 

original pleading and is thus itself timely even though it was filed outside an 

applicable statute of limitations.”). In order for an amended complaint to relate back 

under Rule 15(c)(1)(C), the following conditions must be met: “(1) the basic claim must 

have arisen out of the conduct set forth in the original pleading; (2) the party to be brought 

in must have received such notice that it will not be prejudiced in maintaining its defense; 

(3) that party must or should have known that, but for a mistake concerning identity, the 

action would have been brought against it.” Butler v. Nat’l Cmty. Renaissance of Cal., 766 

F.3d 1191, 1202 (9th Cir. 2014) (citing Schiavone v. Fortune, 477 U.S. 21, 29 (1986)). 

Additionally, the second and third requirements must have been fulfilled within 90 days 

after the original complaint is filed, as prescribed by Federal Rule of Civil Procedure 

4(m). See Butler, 766 F.3d at 1202 (citing Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 6 of 14
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

7

2013) (indicating that the fourth requirement is met when “‘the second and third criteria 

are fulfilled within 120 days of the filing of the original complaint, and . . . the original 

complaint [was] filed within the limitations period.’”)).

Here, the only factor that Plaintiff’s Second Amended Complaint meets as to the 

City of Mesa Defendants is the first factor. See Fed. R. Civ. P. 15(c)(1)(B). The claims 

asserted in the Second Amended Complaint arose out of the same events set forth in 

Plaintiff’s original Complaint (although her original Complaint does put the wrong date 

on the incident and also misidentifies in places the name of Brailsford). That being said, 

given that the City of Mesa Defendants were identified in the Sweet lawsuit one year prior 

to this lawsuit’s filing and that Plaintiff was a witness in Defendant Brailsford’s trial the 

year before, the City of Mesa Defendants could have had no idea that Plaintiff intended to 

sue them. The information she needed to do so was publicly available.

4 Plaintiff’s failure 

to identify the City of Mesa officers was not a “mistake,” Plaintiff simply chose not to do 

her due diligence.

Moreover, the City of Mesa Defendants did not receive notice or knowledge that 

this action could have been brought against them within the Rule 4(m) time period (from 

filing of the original Complaint). In fact, two days after the expiration of that time frame, 

on April 19, 2018, Plaintiff further amended her Complaint. She still did not identify the 

City of Mesa Defendants. In light of that amendment, there can be no question that the 

City of Mesa Defendants could not have expected that, at that late date and after all of the 

media coverage associated with Shaver’s death, Plaintiff intended to sue them.

Plaintiff’s failure to timely identify the City of Mesa Defendants by name is no 

mistake. Perhaps Plaintiff was careless. Perhaps she was lazy. Regardless, Rule 15(c) does 

not account for either. Simply put, Plaintiff’s amendment does not satisfy the conditions 

 4 Moreover, the officers who did not have any contact with Plaintiff could not have 

reasonably anticipated that they would be subject to liability for alleged violations of her 

constitutional rights.

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 7 of 14
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

8

of Rule 15(c) and thus her claims against the City of Mesa Defendants are untimely and 

must be dismissed.

III. PLAINTIFF’S FOURTH AMENDMENT UNREASONABLE SEIZURE

CLAIM FAILS.

A. Plaintiff’s Failure to Identify the Officer Responsible for the Alleged 

Deprivation of Her Constitutional Rights is Fatal to Her Claim

Plaintiff alleges that, pursuant to 42 U.S.C. § 1983, the City of Mesa Defendants, 

including the City itself, violated her constitutional right to be free from seizure and 

detention. This claim is problematic for two reasons. First, Plaintiff fails to identify the 

officer allegedly responsible for her brief detention. Throughout her Second Amended 

Complaint, she refers to the “Defendants,” or the City of Mesa Defendants collectively, 

rather than identifying with any specificity the officer(s) who detained her. This is 

insufficient to state a claim against the individual City of Mesa Defendants. (Dkt. 39, ¶¶ 

155-159, 161.)

A defendant may be liable to a plaintiff in a Section 1983 action if the defendant 

“subject[ed], or caus[ed] to be subjected,” the plaintiff to the deprivation of her

constitutional rights. 42 U.S.C. § 1983; see also Harper v. City of Los Angeles, 533 F.3d 

1010, 1026 (9th Cir. 2008) (“In a § 1983 action, the plaintiff . . . must demonstrate that the 

defendant’s conduct was the actionable cause of the claimed injury.”) (citations omitted).

“A person ‘subjects’ another to the deprivation of a constitutional right, within the 

meaning of section 1983, if he does an affirmative act, participates in another’s 

affirmative acts, or omits to perform an act which he is legally required to do that causes 

the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743-44 (9th

Cir. 1978).

Being “a mere bystander” to a constitutional violation, however, is insufficient to 

support Section 1983 liability. Chuman v. Wright, 76 F.3d 292, 294-95 (9th Cir. 1996) 

(rejecting “the ‘team effort’ standard [that] allows the jury to lump all the defendants 

together, rather than require an instruction that would invite a jury to find all of the 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 8 of 14
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

9

officers liable for an alleged constitutional violation merely for being present at the scene 

of an alleged unlawful act.”); see also Blankenhorn v. City of Orange, 485 F.3d 463, 481 

n.12 (9th Cir 2007) (explaining that integral participation requires “some fundamental 

involvement in the conduct that allegedly caused the violation” and affirming summary 

judgment in favor of officer who arrived on the scene after the allegedly unconstitutional 

arrest and officer who provided only crow control).

Where the constitutional violation alleged is false arrest, the deprivation takes place 

when the detainee is seized and a reasonable person would not have believed she was free 

to leave. Therefore, in order to have “caused” or “participated” in the arrest, the individual 

in question “must have undertaken some action prior to, or perhaps at the time of” the 

arrest. Jenkins v. Keating, 147 F.3d 577, 583-84 (7th Cir. 1998). Simply taking action 

after a seizure has been made is not sufficient to imbue an officer with false arrest 

liability. Id. at 584.

Here, Plaintiff broadly alleges, simply, that “[t]he actions taken by Defendants 

City, Brailsford, Langley, Elmore, Doane, and Gomez, and John/Janes Does 1-5 during 

their prolonged, unjustified, and unreasonable arrest and detention of Plaintiff were such 

that, as a reasonable person, Plaintiff did not believe she was free to leave” (Dkt. 39, ¶ 

155); she alleges “[t]he actions of Defendants Brailsford, Langley, Elmore, Doane, and 

Gomez constituted false, unlawful, and/or unreasonable arrest in violation of her Fourth 

Amendment and/or Fourteenth Amendment rights.” (Dkt. 39, ¶ 158.) She does not even 

mention Defendant Cochran, and it is unclear when she claims the alleged unreasonable 

detention began, when it ended, or who actually detained her.

Plaintiff’s vague claims are insufficient to state a Fourth Amendment claim against 

any of the City of Mesa Defendants for false arrest/unreasonable seizure. This claim must 

be dismissed.

/ / /

/ / /

/ / /

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 9 of 14
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

10

B. The City of Mesa Defendants had Reasonable Suspicion to Detain 

Plaintiff

Second, Plaintiff’s unreasonable search and seizure claim fails because, regardless 

of who the detaining officer was, the officers had reasonable suspicion to conduct an 

investigatory stop and detain her, and reasonable suspicion is a defense to Plaintiff’s 

unreasonable search and seizure claim.

An investigatory (Terry) stop is reasonable under the Fourth Amendment if “the 

officer’s action was justified at its inception” and the investigation “was reasonably 

related in scope to the circumstances which justified the interference in the first place.”

United States v. Sharpe, 470 U.S. 675, 682 (1985) (quoting Terry v. Ohio, 392 U.S. 1, 20

(1968)). An officers’ action is justified at its inception if the officer had “reasonable 

suspicion” of criminal activity before initiating an investigatory stop. United States v. 

Sokolow, 490 U.S. 1, 7 (1989). Reasonable suspicion means the officer can identify 

“specific and articulable facts which, taken together with rational inferences from those 

facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21; see also United States v. 

Cortez, 449 U.S. 411, 417 (1981) (holding that “the totality of the circumstances – the 

whole picture – must be taken into account” when determining if an officer had 

reasonable suspicion to perform an investigatory stop). “Reasonable suspicion is a less 

demanding standard than probably cause not only in the sense that reasonable suspicion 

can be established with information that is different in quantity or content than that 

required to establish probable cause, but also in the sense that reasonable suspicion can 

arise from information that is less reliable than that required to show probable cause.

Alabama v. White, 496 U.S. 325, 330 (1990). Further, the use of handcuffs does not, in

and of itself, elevate a detention to an arrest. United States v. Reyes-Vencomo, 866 F.

Supp. 2d 1304, 1330 (D.N.M. 2012).

Here, the police officer who detained Plaintiff – whoever it was – undoubtedly had 

reasonable suspicion to conduct an investigatory stop. Plaintiff had been in a hotel room 

where hotel guests had reported someone waving a gun. “[U]nder appropriate 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 10 of 14
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

11

circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to 

provide reasonable suspicion to make [an] investigatory stop.’” Navarette v. California, 

134 S.Ct 1683, 1688 (2014) (citation omitted) (rejecting argument that reasonable cause 

for an investigatory stop can only be based on the officer’s personal observation, rather 

than information supplied by another person). She was then a witness to the police

shooting. The circumstances officers were presented with following the shooting 

undoubtedly justified an investigatory stop. As such, her detention could not be 

unconstitutional and her Fourth Amendment claim must be dismissed.

IV. PLAINTIFF FAILS TO STATE A MONELL CLAIM.

“The Ninth Circuit has made clear that claims of Monell liability must now comply 

with the basic principles set forth in Twombly and Iqbal: (1) the complaint “may not 

simply recite the elements a cause of action, but must contain sufficient allegations of 

underlying facts to give fair notice and to enable the opposing party to defend itself

effectives;” and (2) the “factual allegations that are taken as true must plausibly suggest an 

entitlement to relief, such that it is not unfair to require the opposing party to be subjected 

to the expense of discovery and continued litigation.” AE v. County of Tulare, 666 F.3d 

631, 636-37 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)).

Here, Plaintiff’s Monell claim meets neither of those requirements. Her allegations 

are boilerplate and lack any clarity, precision, or attention to detail. They are confusing 

and, clearly, the result of a poor cut-and-paste job:

• In Paragraph 173, for example, Plaintiff refers to “Transit Security

Officers.” The City of Mesa has no idea who “Transit Security” is. Obviously, Plaintiff 

pasted these allegations from another Complaint.

• In Paragraph 169, Plaintiff – undecided as to what her claim actually is –

alleges, “Defendant City of Mesa either maintains an official policy of a) permitting its 

police officers to use create [sic] circumstances in which force may appear to be justified 

absent the need for such force and/or b) permitting its officers to use excessive and 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 11 of 14
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

12

unlawful force against citizens and/or c) permitting its police officers to illegally arrest 

and detain people unlawfully or, in the alternative, maintains a de facto policy of ignoring 

such actions by the officers employed by MPD[.]” (emphasis added.) 

This paragraph (and Paragraphs 173, 174, 180, and every paragraph in between) is

problematic for a number of reasons and a prime example of throwing claims at the wall 

in hopes that one will stick. In addition to expecting the City of Mesa to determine which 

alternative may apply to them, this allegation is based on excessive force in a case where 

there is no excessive force allegation. Plaintiff alleges a Fourth Amendment false 

arrest/unreasonable search and seizure claim, not excessive force. Thus, these allegations, 

in addition to being incomprehensible, lack the requisite underlying constitutional 

violation necessary to prevail. 

“[A] municipality can be found liable under § 1983 only where the municipality

itself causes the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378,

385 (1989) (citing Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658

(1978)). “Where a plaintiff claims that the municipality has not directly inflicted an injury,

but nonetheless has caused an employee to do so, rigorous standards of culpability and

causation must be applied to ensure that the municipality is not held liable solely for the

actions of its employee.” See Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997).

Plaintiff must prove that the alleged constitutional violations were committed pursuant to 

a formal governmental policy, or a longstanding practice or custom which is the City’s 

standard operating procedure. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

Such a practice or custom must be “so permanent and well settled as to constitute a 

‘custom or usage’ with the force of law.” Ericson v. City of Phoenix, CV-14-01942-PHXJAT, 2016 WL 6522805, at *21 (D. Ariz. Nov. 3, 2016) (citing Gillette v. Delmore, 979 

F.2d 1342, 1349 (9th Cir. 1992)); see City of Canton, 489 U.S. at 388; see also Trevino, 

99 F.3d at 918 (liability may not be predicated on isolated or sporadic incidents).

Plaintiff does not allege that any City policy was the moving force behind an 

alleged constitutional injury or was even deficient. Instead, her Monell claim is based on 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 12 of 14
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

13

the alleged unconstitutional conduct of specific officers (who, as described above, she 

improperly ascribes, collectively, unconstitutional conduct). Plaintiff’s Monell claim is, 

thus, nothing but an attempt to impose respondeat superior liability upon the City of 

Mesa, which is improper under Section 1983.

Here, Plaintiff claims that the “obviousness of the facts” giving rise to her claims

are enough to impose independent liability upon the City. (Dkt. 39, ¶ 171.) The alleged

facts supporting Plaintiff’s attempt at a Monell claim are, however, anything but obvious 

to the City of Mesa – the party that must defend itself. Plaintiff’s Monell claim against the 

City of Mesa must be dismissed.

V. CONCLUSION.

Plaintiff’s claims against the City of Mesa Defendants are all time barred and must 

be dismissed. Even if they were not, however, Plaintiff fails to state her Fourth 

Amendment allegations against the City of Mesa Defendants with requisite particularity

and fails to state a Monell claim against the City. Her claims thus fail as a matter of law.

DATED this 4th day of January, 2019. 

WIENEKE LAW GROUP, PLC

By: /s/ Christina Retts

Kathleen L. Wieneke

Christina Retts

1095 West Rio Salado Parkway, Suite 209

Tempe, Arizona 85281

Attorneys for Defendants City of Mesa, Brian 

Elmore, Christopher Doane, Bryan Cochran, 

and Richard Gomez

CERTIFICATE OF PERSONAL CONSULTATION

Pursuant to LRCiv 12.1, the City of Mesa Defendants make this certification that 

on January 4, 2019, and prior to filing this Motion to Dismiss, the attorney for the City of 

Mesa Defendants attempted to confer with Plaintiff’s counsel regarding the facts that the 

primary issue with Plaintiff’s Second Amended Complaint cannot be cured by 

amendment. 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 13 of 14
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

14

CERTIFICATE OF SERVICE

I hereby certify that on January 4, 2019, 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:

Gene N. Chávez

CHAVEZ LAW OFFICES, PA

1220 5th Street

Albuquerque, NM 87102

gene@chavezlawoffices.com

Attorney for Plaintiff

Daniel J. O’Connor, Jr.

Justin D. Holm

O’CONNOR & CAMPBELL, P.C.

7955 South Priest Drive

Tempe, AZ 85284

Attorneys for Defendant Philip Mitchell Brailsford, Jr.

James J. Belanger

J. BELANGER LAW PLLC

PO Box 447

Tempe, AZ 85280

Attorney for Defendant Charles Langley

By: /s/ Kim Penny 

Case 2:18-cv-00178-SRB Document 51 Filed 01/04/19 Page 14 of 14