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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Nirobia G. Bracy, 

Plaintiff, 

v. 

Phoenix, City of, et al., 

Defendants.

No. CV-15-02347-PHX-JAT

ORDER 

 Pending before the Court are two motions filed by Defendants City of Phoenix, 

Phoenix Police Department and Ryan Sinder1

 (“Defendants”): (1) Amended Motion to 

Dismiss (Doc. 10) and (2) Motion for Summary Disposition (Doc. 11). On January 11, 

2016, Defendants requested the Court to dismiss Plaintiff’s lawsuit. (Doc. 10). To this 

date, Plaintiff has not filed a response to Defendants’ Amended Motion to Dismiss. On 

March 8, 2016, Defendants requested the Court to grant Summary Disposition on their 

Amended Motion to Dismiss. (Doc. 11). The Court now rules on the motions. 

I. Background 

On October 16, 2015, Plaintiff filed a complaint against Defendants in the 

Superior Court of Arizona in Maricopa County alleging that his personal property was 

illegally seized and searched in violation of his “Fourth Amendment rights guarantee[d] 

 

1

 The Court notes that the docketing of this case refers to the arresting Phoenix Police Department Officer as “Ryan Sinder.” The captions of Defendants’ motions also 

refer to him as “Ryan Sinder,” see (Docs. 10, 11), but reference him in discussions as 

“Ryan Snider,” see e.g., (Doc. 10 at 2). The Court will refer to the Officer as Ryan Sinder. 

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by the United States Constitution.” (Doc. 1-1 at 2). Pursuant to 28 U.S.C. § 1441(a), 

Defendants removed the case to this Court on November 18, 2015. (Doc. 1 at 2). 

 Plaintiff claims that on October 18, 2013, Officer Ryan Sinder of the Phoenix 

Police Department approached him after he exited a Wireless Toyz store in Phoenix, 

Arizona and inquired what Plaintiff was doing inside the store. (Doc. 1-1 at 2). Plaintiff 

allegedly responded by stating he had dropped off his phones at the store for repair. (Id.) 

According to Plaintiff, Officer Sinder then “immediately told [Plaintiff] he was under 

arrest.” (Id.) Next, Plaintiff claims that he watched Officer Sinder enter Wireless Toyz for 

several minutes and return with “what appeared to be the phones [Plaintiff] had dropped 

of [sic] minutes before in his hand.” (Id. at 3). Plaintiff alleges that Officer Sinder then 

asked him if the items belonged to him, and Plaintiff affirmatively responded. (Id.) 

Plaintiff claims that Officer Sinder told him that the Wireless Toyz employees, “Jesus 

and Mary,” were not interested in Plaintiff’s business and that the employees forced 

Officer Sinder to take the phones. (Id.) Plaintiff finally claims that he called Wireless 

Toyz the following day and that the store employees informed him that Officer Sinder 

had demanded that they turn over Plaintiff’s phones and threatened them with 

prosecution if they did not comply. (Id.) 

 Importantly, Plaintiff filed a nearly identical lawsuit regarding the alleged October 

18, 2013 incident in Maricopa County Superior Court on July 23, 2014, which the 

defendants2

 removed to the U.S. District Court for the District of Arizona. See Notice of 

Removal, Bracy I (D. Ariz. Dec. 26, 2014), at ECF No. 1. In that lawsuit, Plaintiff 

claimed that “on 10-18-2013 Phoenix Police Department violatend [sic] my civil rights 

by obtaining two work phones . . . without a search warrant[.]” Complaint, Bracy I (D. 

Ariz. Dec. 26, 2014), at ECF No. 1-1 at 17. Several days later, the defendants filed a 

motion to dismiss Plaintiff’s lawsuit, see Motion to Dismiss, Bracy I (D. Ariz. Dec. 30, 

 

2

 The named defendants in Plaintiff’s former suit included each of the named 

Defendants in this case as well as several additional members of the City of Phoenix Police Department. See Civil Cover Sheet, Bracy v. City of Phoenix, CV-14-02780-PHXGMS (“Bracy I”) (D. Ariz. Dec. 26, 2014), at ECF No. 1-1 at 14; (Doc. 1-1 at 2).

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2014), at ECF No. 3, which U.S. District Court Judge G. Murray Snow granted in full, 

see Order, Bracy I (D. Ariz. Mar. 17, 2015), at ECF No. 10.3

 Having briefly summarized 

the relevant allegations in this case and procedural background of Bracy I, the Court now 

analyzes Defendants’ Amended Motion to Dismiss. 

II. Amended Motion to Dismiss 

 Defendants’ principal argument for dismissal under Federal Rule of Civil 

Procedure (“Rule”) 12(b)(6) is the affirmative defense of res judicata. (Doc. 10 at 2–3). 

Defendants also assert that: (1) Plaintiff’s complaint fails to state a claim under Ashcroft 

v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), 

(2) Plaintiff failed to establish liability against the City of Phoenix, and (3) the Phoenix 

Police Department is a non-jural entity that should be dismissed from the lawsuit. 

(Doc. 10 at 4–6). 

A. Legal Standard for Res Judicata

 Rule 12(b)(6) states that a party may move to dismiss a claim for “failure to state 

a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Generally, 

affirmative defenses like res judicata must be raised in a responsive pleading, but the 

Ninth Circuit has held that a party may raise a res judicata defense by motion rather than 

by answer where the merits of the defense can be determined on the face of the 

complaint. See Guam Inv. Co. v. Cent. Bldg., Inc., 288 F.2d 19, 24 (9th Cir. 1961) (“It 

appears to us that before an action may be summarily dismissed on the ground of res 

judicata the ends of justice require as a minimum that the defense of res judicata appear 

from the face of the complaint.”). 

 The doctrine of res judicata shields “litigants from the burden of relitigating an 

identical issue” and advances “judicial economy by preventing needless litigation.” 

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Res judicata bars a claim 

 

3

 In his Order, Judge Snow inadvertently noted the date of the alleged incident as October 24, 2013. Id. As stated in the former complaint, however, the actual date of the alleged incident was October 18, 2013. Complaint, Bracy I (D. Ariz. Dec. 26, 2014), at 

ECF No. 1-1 at 17. 

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where “there is (1) an identity of claims, (2) a final judgment on the merits, and 

(3) privity between parties.” Stratosphere Litig. L.L.C. v. Grand Casinos, Inc., 298 F.3d 

1137, 1142 n.3 (9th Cir. 2002) (internal quotations and citation omitted). Namely, an 

“[i]dentity of claims exists when two suits arise from the same transactional nucleus of 

facts.” Id. Privity, as it relates to the doctrine of res judicata, exists when a party is “so 

identified in interest with a party to former litigation that he represents precisely the same 

right in respect to the subject matter involved.” In re Schimmels, 127 F.3d 875, 881 (9th 

Cir. 1997) (internal quotations and citation omitted). 

B. Analysis 

 After comparing the claims found in Plaintiff’s Complaint with those he alleged in 

the complaint in Bracy I, the Court finds that Plaintiff’s lawsuit is barred by the doctrine 

of res judicata. First, because the action pending before this Court contains the same 

nucleus of facts as Bracy I, an identity of claims exists. As he did in Bracy I, Plaintiff 

alleges civil rights violations against the Phoenix Police Department for an illegal search 

and seizure of his personal property—two cellular phones—on October 18, 2013. 

Compare Complaint, Bracy I (D. Ariz. Dec. 26, 2014), at ECF No. 1-1 at 17 (“[O]n 10-

18-2013 Phoenix Police Department violatend [sic] my civil rights by obtaining two work 

phones . . . without a search warrant[.]”), with (Doc. 1-1 at 2) (“On October 18th 2013, . . . 

City of Phoenix and Phoenix [P]olice Officer Sinder . . illegally and unlawfully seiz[ed] 

the person [sic] property of Bracy and [s]earch[ed] thought [sic] the private contents it 

contain[ed] without a search warrant did [sic] in fact violated [sic] the [P]laintiff[’s] 

Fourth Amendment right’s [sic] . . . .”).4

 Thus, because the alleged arresting police 

 

4

 There are only diminutive differences between Plaintiff’s claims in his former 

suit and in this case. In Bracy I, Plaintiff did not name Officer Sinder as a defendant in 

the complaint, see Complaint, Bracy I (D. Ariz. Dec. 26, 2014), at ECF No. 1-1 at 17, 

although Officer Sinder was named as a defendant elsewhere on the record, see Civil 

Cover Sheet, Bracy I (D. Ariz. Dec. 26, 2014), at ECF No. 1-1 at 14. Also, Plaintiff 

alleged a Due Process violation in his former suit, see Bracy I (D. Ariz. Dec. 26, 2014), at 

ECF No. 1-1 at 17, whereas he specified a Fourth Amendment violation here, see

(Doc. 1-1 at 2). However, these slight differences are not sufficient to overcome an 

identity of claims because res judicata bars a party from relitigating “facts actually litigated” as well as “those points that might have been litigated.” Olson v. Morris, 188 

F.3d 1083, 1086 (9th Cir. 1999) (citation omitted). 

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officer, type of personal property seized, location of incident, and date of incident alleged 

in Plaintiff’s former and current complaints are all the same, the two lawsuits “arise from 

the same transactional nucleus of facts” and an identity of claims exists. See

Stratosphere, 298 F.3d at 1142 n.3. 

 Second, Judge Snow made a final judgment on the merits and dismissed Plaintiff’s 

former suit. See Order, Bracy I (D. Ariz. Mar. 17, 2015), at ECF No. 10 (“Defendant’s 

Motion to Dismiss . . . is granted.”); Clerk’s Judgment, Bracy I (D. Ariz. Mar. 17, 2015), 

at ECF No. 11 (“Plaintiff to take nothing, and the complaint and action are dismissed.”). 

Rule 41(b) states that “[u]nless the court in its order for dismissal otherwise specifies, a 

dismissal . . . other than a dismissal for lack of jurisdiction, for improper venue, or for 

failure to join a party under Rule 19, operates as an adjudication upon the merits.” Fed. R. 

Civ. P. 41(b). The Supreme Court of the United States has confirmed that where 

“allegations in the complaint do not state a ground for relief,” then dismissal of the case 

is a judgment “on the merits” to which res judicata applies. Bell v. Hood, 327 U.S. 678, 

682 (1946). Judge Snow granted the defendants’ motion to dismiss in Plaintiff’s former 

suit pursuant to 28 U.S.C. § 1915. See Order, Bracy I (D. Ariz. Mar. 17, 2015), at ECF 

No. 10. Thus, Plaintiff’s claim in Bracy I was dismissed because it “‘fail[ed] to state a 

claim on which relief may be granted . . . .’” Motion to Dismiss, Bracy I (D. Ariz. Dec. 

30, 2014), at ECF No. 3 (quoting 28 U.S.C. § 1915(e)(2)(ii)). For these reasons, there 

was a “final judgment on the merits” in Plaintiff’s former suit. See Stratosphere, 298 F.3d 

at 1142 n.3. 

 Third, it is indisputable that privity exists between the parties in Bracy I and this 

case. As in Bracy I, the current suit represents the same rights of the named parties with 

respect to the subject matter involved. Compare Complaint, Bracy I (D. Ariz. Dec. 26, 

2014), at ECF No. 1-1, with (Doc. 1-1 at 1). 

C. Conclusion 

For these reasons, the Court concludes that Plaintiff’s current lawsuit is barred by 

the doctrine of res judicata. See Stratosphere, 298 F.3d at 1142 n.3. Because the Court 

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finds that res judicata resolves this matter in its entirety, the Court does not evaluate 

Defendants’ other grounds for dismissal. 

III. Motion for Summary Disposition 

Defendants also moved for summary disposition of their motion to dismiss 

pursuant to Rule 41(b) and Local Rule of Civil Procedure for the District of 

Arizona 7.2(i), see (Doc. 11 at 1), both of which require a party to file a response to an 

opposing party’s motion, see Fed. R. Civ. P. 41(b); LRCiv 7.2(i). Here, it is undisputed 

that Plaintiff did not respond to Defendants’ Amended Motion to Dismiss. However, 

because the Court has already found that Plaintiff’s lawsuit is precluded on res judicata 

grounds, the Court will deny Defendants’ Motion for Summary Disposition as moot.5

IV. Conclusion 

 For the foregoing reasons, 

 IT IS ORDERED that Defendants’ Amended Motion to Dismiss (Doc. 10) is 

GRANTED. The Clerk of Court shall enter judgment accordingly and dismiss this case 

with prejudice. 

IT IS FURTHER ORDERED that Defendants’ Motion for Summary Disposition 

(Doc. 11) is DENIED AS MOOT. 

 Dated this 6th day of April, 2016. 

 

5

 Even if the Court were to resolve the Motion for Summary Disposition on its merits, Defendants failed to properly support the motion. The Ninth Circuit requires a district court to apply a five-factor balancing test before dismissing a complaint due to a party’s failure to follow the court’s local rules. See Henderson v. Duncan, 779 F.2d 1421, 

1423 (9th Cir. 1986) (holding that a district court must weigh five factors in determining whether to dismiss a case for failure to abide by a district court’s local rules under Fed. R. 

Civ. P. 41(b)). Here, Defendants failed to address the Henderson five factors in their 

Motion for Summary Disposition. See (Doc. 11). 

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