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 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gary Craig Solomon, 

Plaintiff, 

v. 

Town of Taylor, et al., 

Defendants.

No. CV-15-08164-PCT-GMS

ORDER 

 Pending before the Court are Defendants’ motion to dismiss Plaintiff’s complaint 

pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) (Doc. 14), Plaintiff’s motion to 

amend (Doc. 34), and Defendants’ motion to strike (Doc. 40). For the following reasons, 

the Court grants Defendants’ motions and denies Plaintiff’s motion. 

BACKGROUND1

 Plaintiff alleges that at some point prior to 2013, Defendant Town of Taylor 

(“Town”) contracted with Hatch Development Company, LLC and other parties to 

develop an industrial park in the Town. (Doc. 1 at 2, Ex. A.) Hatch did not possess the 

proper licensing and insurance to do the work, which included “hook[ing] up sewer lines 

. . . .” (Doc. 1 at 2.) Hatch began, yet may not have finished, the contract work, leaving 

“trenches that were open with no back fill to prevent harm to the public.” (Id.) The 

 

1

 The Court construes Plaintiff’s complaint liberally. See Hughes v. Rowe, 449 

U.S. 5, 9 (1980) (“It is settled law that the allegations of [a pro se plaintiff’s] complaint, ‘however inartfully pleaded’ are held ‘to less stringent standards than formal pleadings drafted by lawyers.’”) (citations omitted). 

Case 3:15-cv-08164-GMS Document 42 Filed 03/22/16 Page 1 of 6
- 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 

Town then hired Plaintiff to finish the project, but did not inform him that Hatch’s 

previous work was done without a proper license, insurance, or ADQ approval. (Id.) 

 In July 2008, individuals who owned property adjacent to the industrial park sued 

the Town, Hatch, Plaintiff, and other parties claiming that the parties negligently 

constructed the industrial park sewer system causing their property to flood. (See id.; 

Doc. 14 at 3.) Plaintiff alleges that the Town hired Plaintiff “as a scapegoat to cover the 

Hatch Development negligence.” (Doc. 1 at 2.) And when Plaintiff sought information 

to defend himself in the lawsuit, Eric Duphie, the Town’s manager, refused to disclose 

any information about the “Palmer Trust” or any other paperwork that would “make the 

Taylor Family responsible . . . .” (Id.) Accordingly, Plaintiff argues that the Town 

“clearly and visibility (sic) violated my constitutional rights not allowing me to get 

information to defend myself.” (Id.) Plaintiff allegedly did not know that Hatch 

performed the original construction work lacking the proper documentation until some 

point in 2013, long after the 2008 lawsuit settled. (Id.) 

 Plaintiff also alleges that the state court judge who presided over the 2008 lawsuit 

“showed extreme prejudice against me and my family because of the relationship 

between” the state court judge and another judge on the same court. (Id. at 3.) Plaintiff 

also complains of being deprived of the chance to “step one foot inside the courtroom.” 

(Id. at 2.) 

DISCUSSION 

I. Legal Standard 

 On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all 

allegations of material fact are assumed to be true and construed in the light most 

favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 

2009). Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal 

theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” 

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To avoid 

dismissal, a complaint need contain only “enough facts to state a claim for relief that is 

Case 3:15-cv-08164-GMS Document 42 Filed 03/22/16 Page 2 of 6
- 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 

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The 

principle that a court accepts as true all of the allegations in a complaint does not apply to 

legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 566 U.S. 662, 678 

(2009). “Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id. “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not 

akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a 

defendant has acted unlawfully.” Id. To show that the plaintiff is entitled to relief, the 

complaint must permit the court to infer more than a mere possibility of misconduct. Id.

II. Analysis 

Plaintiff argues that Defendants deprived him of his civil rights pursuant to 42 

U.S.C. §§ 1981, 1983,2

 1985, 1988, and 18 U.S.C. § 242. 

A. Section 1983 

To state a claim for relief in an action brought under § 1983, Plaintiff must allege 

“(1) a violation of rights protected by the Constitution or created by federal statute, (2) 

proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” 

Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). “Section 1983 ‘is not itself a 

source of substantive rights,’ but merely provides ‘a method for vindicating federal rights 

elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. 

McCollan, 443 U.S. 137, 144, n. 3 (1979)). Accordingly, “a section 1983 plaintiff must 

allege an independent substantive basis for relief.” Crumpton, 947 F.2d at 1420. 

 Plaintiff fails to aver any independent substantive basis for relief triggered by an 

articulated violation of some federally protected right.3

 Id. Rather, in count one, Plaintiff 

 

2

 Plaintiff’s complaint does not specifically raise § 1983. Nonetheless, the Court, assumes Plaintiff intended to raise § 1983 since he cited the statute in his original civil cover sheet. Defendants also drafted their motion under the same assumption. (Doc. 14 at 2.) 

3

 The Court raises this dispositive issue sua sponte since it involves its subject matter jurisdiction. Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“[A] 

Case 3:15-cv-08164-GMS Document 42 Filed 03/22/16 Page 3 of 6
- 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 

conclusively asserts that Defendants violated his civil rights when they allegedly refused 

to disclose information about the “Palmer Trust” and other subjects Plaintiff contends he 

could have used to defend himself in the 2008 civil lawsuit. And in count two, Plaintiff 

alleges that the state court judge who presided over the 2008 lawsuit showed him 

“extreme prejudice” because of the relationship between the judge and another judge 

allegedly related to Hatch. 

 Even if the Court assumed “all allegations of material fact . . . to be true and 

construed [them] in the light most favorable” to Plaintiff, nothing in the complaint allows 

the Court to draw a reasonable inference that the Defendants are plausibly liable, under 

count one or count two, for some violation of the Constitution or federal statute. See id. 

In other words, Plaintiff fails to raise any colorable federal claim. Consequently, 

Plaintiff’s § 1983 claim is dismissed. 

B. Section 1981 

§ 1981 “provides an action for discrimination based on race.” Jones v. Bechtel, 

788 F.2d 571, 574 (9th Cir. 1986). Plaintiff’s complaint never mentions race or any 

discrimination whatsoever. His § 1981 claim is therefore dismissed. 

C. Section 1985 

 “When two or more persons conspire to deny any person equal protection, the 

injured party may have an action for damages under . . . § 1985(3). The statute has been 

construed to require a racially or otherwise ‘invidiously discriminatory animus’ behind 

the conspirator’s action.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) 

(quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Plaintiff’s complaint raises 

no, racial or otherwise invidious, claim for discrimination; therefore, the cause of action 

is dismissed. 

/// 

/// 

 court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action . . . .”). 

Case 3:15-cv-08164-GMS Document 42 Filed 03/22/16 Page 4 of 6
- 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 

D. Section 1988 

At its center, § 1988 governs the ability of a district court to award a prevailing 

party its attorney’s fees in a lawsuit asserting certain federal causes of action. The statute 

does not confer on Plaintiff a separate cognizable claim. Plaintiff’s § 1988 cause of 

action is thus dismissed. 

E. Section 242 

18 U.S.C. § 242 is a criminal statute that “provide[s] no basis for civil liability.” 

Aldabe, 616 F.2d at 1092. Accordingly, the claim is dismissed. 

F. Untimeliness and Failure to respond 

On October 20, 2015, the Court ordered Plaintiff to respond to Defendants’ motion 

to dismiss by November 3, 2015; otherwise, the Court may consider Plaintiff’s failure to 

respond as consent to the granting of Defendants’ motion. (Doc. 33.) Plaintiff filed a 

“motion not to dismiss” on November 4, 2015. (Doc. 34.) The motion failed to respond 

to Defendants’ motion to dismiss. In fact, the motion consisted entirely of an amended 

complaint raising only Arizona state law claims over which this Court has no jurisdiction. 

Therefore, in accordance with the Court’s October 20, 2015 order, Plaintiff’s failure to 

respond to Defendants’ motion to dismiss serves as consent to granting the motion. 

CONCLUSION 

For the foregoing reasons, the Court grants Defendants’ motion to dismiss.4

 

4

 Plaintiff filed a third amended complaint on February 2, 2016. (Doc. 39.) Plaintiff filed his initial complaint on August 25, 2015, and Defendants’ filed their 

motion to dismiss on September 21, 2015. Accordingly, Federal Rule of Civil Procedure Rule 15(a)(1) prevents Plaintiff from filing an amended complaint without leave of the 

Court or the Defendants. Fed. R. Civ. P. 15(a)(2); LRCiv. 15.1. Plaintiff did not receive 

consent nor did he file a motion for leave to amend; therefore, Plaintiff’s amended 

complaint is dismissed. 

The Court does not rule on the merits of Plaintiff’s third amended complaint. That said, the complaint couches Plaintiff’s six “counts” as violations of § 1983; however, 

none of the six causes of action seem to assert a violation of any recognized substantive federal right. As noted above, “[§] 1983 is not itself a source of substantive rights[.]” Albright, 510 U.S. at 271 (internal quotation marks and citations omitted). “[A] section 

1983 plaintiff must[, therefore,] allege an independent substantive basis for relief.” Crumpton, 947 F.2d at 1420. 

Case 3:15-cv-08164-GMS Document 42 Filed 03/22/16 Page 5 of 6
- 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 

 IT IS THEREFORE ORDERED: 

1. The Court GRANTS Defendants’ motion to dismiss (Doc. 14). 

 2. The Court DENIES Plaintiff’s motion to amend complaint (Doc. 34). 

 3. The Court GRANTS Defendants’ motion to strike Plaintiff’s amended 

complaint (Doc. 40). 

 4. The Clerk of Court is directed to enter judgment accordingly. 

 Dated this 22nd day of March, 2016. 

Honorable G. Murray Snow

United States District Judge

Case 3:15-cv-08164-GMS Document 42 Filed 03/22/16 Page 6 of 6