Case 2:10-cv-01493-RJB Document 55 Filed 03/08/11 Page 1 of 12

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6
7 UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
8
9 GEOFFREY JACOBS,
10 Case No. CV 10-01493 PHX RJB
Plaintiff,
11
v. ORDER ON MOTION FOR
12 JUDGMENT ON THE
STATE OF ARIZONA, a Governmental PLEADINGS AND TO DISMISS
13 Entity; ARIZONA DEPARTMENT OF
PUBLIC SAFETY, a Political Subdivision of
14 the State of Arizona; CITY OF GLENDALE,
a municipal corporation; GLENDALE
15 POLICE DEPARTMENT, a Public Entity,
ROBERT HALLIDAY, Individually and in
16 his Official Capacity as Director of DPS;
JANE DOE HALLIDAY, as Husband and
17 Wife; PENNIE GILLETTE-STROUD, in her
Official and Individual Capacity; JOHN DOE
18 STROUD, as Husband and Wife; LAURIE
GRIFFITH, in her Official and Individual
19 Capacity; JOHN DOE GRIFFITH, husband
and Wife; SAMANTHA ZARAGOZA, in her
20 Official and Individual Capacity; JOHN DOE
ZARAGOZA, Husband and Wife; AMI
21 HALLIDAY and JOHN DOE HALLIDAY,
as Husband and Wife; JOHN DOES I-X;
22 ABC PARTNERSHIPS I-X; and BLACK
CORPORATIONS I-X,
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Defendants.
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25
This matter comes before the Court on State Defendants’ Motion for Judgment on the Pleadings
26 (Dkt. 38) and the parties’ Stipulation for Extension of Pretrial Deadlines. Dkt. 53. The Court has
27 reviewed the pleadings filed in favor and opposition to the motions and the remainder of the record
28 herein.

ORDER
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1 I. FACTS AND PROCEDURAL HISTORY

2 A. FACTS
3 According to the Complaint, Plaintiff was terminated from his position as a police officer with the
4 Arizona Department of Public Safety (“DPS”) on September 9, 2009. Dkt. 1, at 13. Plaintiff appealed his
5 termination with the Law Enforcement System Council (“LEMSC”). Id., at 14. The LEMSC held a
6 hearing, and on November 17, 2009, upheld the decision to terminate Plaintiff’s employment with DPS.
7 Id. Plaintiff did not appeal the LEMSC’s decision to the Arizona state courts, but instead, filed suit in this
8 Court.
9 Plaintiff makes claims for violation of his equal protection, substantive and procedural due process
10 rights via 42 U.S.C. § 1983. Dkt. 1. Plaintiff also claims Defendants violated his right against
11 unreasonable searches and seizures through § 1983. Id. Plaintiff also makes state claims for false light
12 invasion of privacy, intentional infliction of emotional distress, defamation, and negligent supervision.
13 Id. Plaintiff seeks damages, attorneys’ fees and costs. Id.
14 B. PROCEDURAL HISTORY
15 Plaintiff filed his Complaint on July 15, 2010. Dkt. 1. The Complaint alleges that this Court has
16 federal question jurisdiction under 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction under 28
17 U.S.C. § 1367 .
18 On September 21, 2010, Defendants City of Glendale, Glendale Police Department, and Samantha
19 Zaragoza were dismissed. Dkt. 19. On November 5, 2010, pursuant to the oral stipulation of the parties,
20 Defendant DPS was dismissed. Dkt. 36. Further pleadings filed in this case should name only the
21 remaining Defendants.
22 C. PENDING MOTIONS
23 1. State Defendants’ Motion
24 Defendants State of Arizona, and DPS officials Pennie Gillette-Stroud and Laurie Griffith
25 (collectively the “State Defendants”), move the Court for a partial judgment on the pleadings. Dkt. 38.
26 They argue that: 1) Eleventh Amendment immunity bars Plaintiff’s claims against the State, and against
27 the DPS officials in their official capacities; 2) Defendant Gillette-Stroud is entitled to judgment on all
28 claims because there are no legal or factual allegations made against her; 3) much of the Complaint is

ORDER
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1 barred by res judicata; 4) the Rooker-Feldman doctrine bars Plaintiff’s Complaint; and 5) the state claims
2 are likely barred by the Notice Claim Statute. Dkts. 38 and 47. Defendants move for a more definite
3 statement regarding plaintiff false light, intentional infliction of emotional distress, and defamation claims
4 to specify the dates he became aware of those claims. Id. The State Defendants move for an award of
5 attorneys’ fees and costs under 42 U.S.C. § 1988. Id.
6 Plaintiff responds, arguing that: 1) he does not contest that Arizona and the DPS officials in their
7 official capacity are immune from suit pursuant to the Eleventh Amendment, but argues that Defendants
8 Griffith and Gillette-Stroud, in their individual capacities, are not entitled to immunity, 2) the claims
9 against Gillette-Stroud should not be dismissed because she was the final decision maker for the State and
10 made the decision to terminate Plaintiff (Plaintiff seeks leave to amend his Complaint to make more
11 specific allegations against her); 3) res judicata does not apply; 4) the Rooker-Feldman doctrine does not
12 apply; 5) the Notice Claim Statute does not bar his state claims, and is willing to file a more definite
13 statement as to the dates he became aware of his false light, intentional infliction of emotional distress,
14 and defamation claims. Dkt. 44.
15 2. Motion for Extension of Pretrial Deadlines
16 On February 25, 2011, parties filed a Stipulation for Extension of Pretrial Deadlines. Dkt. 53.
17 Parties argue that a 90 day extension is warranted because there are motions pending that narrow the
18 scope of discovery or dispose of many of the claims all together. Dkt. 53.
19 D. ORGANIZATION OF OPINION
20 This opinion will consider the issues in the following order: 1) whether the Eleventh Amendment
21 bars suit against the State of Arizona, and the against the DPS officials in their official capacities; 2)
22 whether Plaintiff’s claims are barred by res judicata, 3) application of the Rooker-Feldman doctrine, 4)
23 whether the claims asserted against Defendant Gillette-Stroud should be dismissed, 5) whether the state
24 law claims are barred by the Notice of Claims statute, 6) whether Plaintiff should be permitted to amend
25 his complaint, and 7) whether the parties should receive a 90 day extension of time for discovery and
26 dispositive motions.
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ORDER
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1 II. DISCUSSION
2 A. MOTION TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS
STANDARD
3
Federal Rule of Civil Procedure 8(a)(2) provides that a pleading must contain a “short and plain
4
statement of the claim showing that the pleader is entitled to relief.” Under Fed. R. Civ. P. 12 (c), “after
5
the pleadings are closed- but early enough not to delay trial- a party may move for a judgment on the
6
pleadings.” Fed. R. Civ. P. 12 (b)(6) provides that a complaint may be dismissed for “failure to state a
7
claim upon which relief can be granted.” Dismissal of a complaint may be based on either the lack of a
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cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.
9
Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). While a complaint attacked
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by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to
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provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
12
recitation of the elements of a cause of action will not do. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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555 (2007) (internal citations omitted).
14
Accordingly, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,
15
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937,
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1949 (2009)(citing Twombly, at 570). A claim has “facial plausibility” when the party seeking relief
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“pleads factual content that allows the court to draw the reasonable inference that the defendant is liable
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for the misconduct alleged.” Id. First, “a court considering a motion to dismiss can choose to begin by
19
identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption
20
of truth.” Id., at 1950. Secondly, “[w]hen there are well-pleaded factual allegations, a court should
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assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.
22
“In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and
23
reasonable inferences from that content, must be plausibly suggestive of a claim entitling the pleader to
24
relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
25
If a claim is based on a proper legal theory but fails to allege sufficient facts, the plaintiff should
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be afforded the opportunity to amend the complaint before dismissal. Keniston v. Roberts, 717 F.2d 1295,
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1300 (9th Cir. 1983). If the claim is not based on a proper legal theory, the claim should be dismissed. Id
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ORDER
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1 Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint
2 could not be saved by any amendment.” Moss v. U.S. Secret Service, 572 F.3d 962, 972 (9th Cir. 2009).
3 B. ELEVENTH AMENDMENT IMMUNITY
4 The State Defendants motion for a judgment on the pleadings should be granted as to Plaintiff’s
5 claims against the State of Arizona and against the DPS officials in their official capacities. The State
6 Defendants have not made a showing that the DPS officials, Griffith and Gillette-Stroud, in their
7 individual capacities, are entitled to immunity.
8 C. RES JUDICATA
9 Res judicata bars litigation in a subsequent action of any claims that were raised or could have
10 been raised in the prior action. Western Radio Servs. Co. v. Glickman, 123 F3d. 1189, 1192 (9th Cir.
11 1997) (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)). “Claim preclusion is a
12 broad doctrine that bars bringing claims that were previously litigated as well as some claims that were
13 never before adjudicated.” Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007)(internal citations
14 omitted). Claims under 42 U.S.C. § 1983, like the ones asserted here, are “subject to claim preclusion
15 even if the litigants did not actually litigate the federal claim in state court.” Holcombe, at 1097.
16 Accordingly,
17 When a state agency acts in a judicial capacity to resolve disputed issues of fact and law
properly before it, and when the parties have had an adequate opportunity to litigate those
18 issues, federal courts must give the state agency's fact-finding and legal determinations the
same preclusive effect to which it would be entitled in that state's courts.
19
Olson v. Morris, 188 F.3d 1083, 1086 (9th Cir. 1999)(quoting University of Tennessee v. Elliott, 478 U.S.
20
788, 798-99(1986); Guild Wineries and Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir.1988)).
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First, however, the federal district court must independently assess the adequacy of the state's
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administrative forum. Id.
23
1. Adequacy of Arizona’s Administrative Forum - the LEMSC
24
In assessing the adequacy of Arizona’s LEMSC,
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The threshold inquiry ... is whether the state administrative proceeding was conducted with
26 sufficient safeguards to be equated with a state court judgment. This requires careful
review of the administrative record to ensure that, at a minimum, it meets the state's own
27 criteria necessary to require a court of that state to give preclusive effect to the state
agency's decisions ... [A]lthough a federal court should ordinarily give preclusive effect
28 when the state court would do so, there may be occasions where a state court would give

ORDER
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1 preclusive effect to an administrative decision that failed to meet the minimum criteria set
down in Utah Construction.
2
Olson, at 1086 (citing Miller v. County of Santa Cruz, 39 F.3d 1030 (9th Cir. 1994); United States v. Utah
3
Construction & Mining Co., 384 U.S. 394, 422 (1966)). “The fairness requirements of Utah Construction
4
are: (1) that the administrative agency act in a judicial capacity, (2) that the agency resolve disputed
5
issues of fact properly before it, and (3) that the parties have an adequate opportunity to litigate.” Miller
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at 1033 (citing 384 U.S. at 422).
7
The LEMSC’s decision here meets the minimum criteria set down in Utah Construction. The
8
LEMSC operated in a judicial capacity when it made the decision to uphold Plaintiff’s termination.
9
Miller at 1033. The LEMSC held a hearing, admitted evidence, and considered briefs of the parties. Dkt.
10
38-4, at 2. The LEMSC issued a “Findings of Fact and Conclusions of Law, and Decision & Order.” Dkt.
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38-4, at 2-4. There is no showing that the LEMSC did not resolve disputed issues of fact properly before
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it. Miller at 1033. Lastly, the parties had an adequate opportunity to litigate. Miller at 1033. Plaintiff
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was represented by counsel (Dkt. 38-4, at 2), conducted discovery (38-2, at 2-4), filed multiple pleadings
14
(Dkts. 38-1, at 2-56; 38-2, at 2-4; 38-3, at 2-23), and presented evidence at the hearing (38-2, at 2-4) .
15
Plaintiff does not dispute that he had the opportunity to appeal the LEMSC’s decision to Arizona’s
16
superior court in accord with Arizona law, but did not do so. The LEMSC’s proceeding “was conducted
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with sufficient safeguards to be equated with a state court judgment” and meets the fairness requirements
18
of Utah Construction. Olson, at 1086. The next issue to be decided, then, is whether under Arizona law,
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Plaintiff’s claims are precluded.
20
2. Res Judicata under Arizona Law
21
In Arizona,
22
Under the doctrine of res judicata, a judgment on the merits in a prior suit involving the
23 same parties or their privies bars a second suit based on the same cause of action. This
doctrine binds the same party standing in the same capacity in subsequent litigation on the
24 same cause of action, not only upon facts actually litigated but also upon those points
which might have been litigated.
25
Hawkins v. State, Dept. of Economic Sec., 183 Ariz. 100, 103-04 (1995).
26
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ORDER
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1 a. Same Claims
2 The federal claims asserted here and some of the state law claims are the same claims raised in the
3 administrative action or are claims that could have been raised there. In this case, Plaintiff makes claims
4 for violation of his equal protection, search and seizure, substantive and procedural due process rights via
5 42 U.S.C. § 1983. Dkt. 1. In the LEMSC appeal, Plaintiff asserted, in part, that: 1) his termination lacked
6 just cause because it was disproportionately severe, 2) searches and seizures by DPS of his personal
7 property were subject to the Fourth Amendment and violated his Fourth Amendment rights , 3) his
8 termination lacked just cause because the evidence used against him was the product of an illegal arrest
9 and lack of Miranda Warnings, 4) his termination lacked just cause because DPS held him to the wrong
10 standard and violated his constitutionally guaranteed right to privacy, 5) his termination lacked just cause
11 because DPS violated its own policies and procedures, thus denying him due process, and 6) his
12 termination was severely flawed and biased, thus denying him due process. Dkts. 38-1 and 38-3. He
13 argued in his “Memorandum to LEMSC Regarding Certain Legal Issues,” that evidence seized as a result
14 of an unreasonable search is to be excluded. Dkt. 38-3, at 12-16. Plaintiff further argued to the LEMSC
15 that evidence from an illegal search may not be used to discover other evidence under the “fruit of the
16 poison tree” doctrine. Id. He argued that the evidence used against him was inadmissible against him
17 under the exclusionary rule and fruit of the poisonous tree doctrine. Id. Plaintiff also made allegations
18 that Defendant Griffith deceitfully acquired his permission to access his webpage by posing as someone
19 else. Dkt. 38-1, at 47.
20 Plaintiff’s constitutional claims and some of the state law claims are the same claims raised in the
21 LEMSC appeal, or are claims that could have been raised there. Hawkins, at 103-04. This requirement is
22 met.
23 b. Same Parties/Privies
24 The State Defendants here are the same Defendants or are privies with the Defendant in the
25 administrative proceeding. The Defendant in the administrative proceeding was DPS, and moving parties
26 here are the State of Arizona (which is immune from suit under the Eleventh Amendment), and DPS
27 employees, Pennie Gillette-Stroud, and Laurie Griffith. Dkt. 38. The requirement that the parties be the
28 same, or in privity, is met. Hawkins, at 103-04.

ORDER
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1 c. Judgment on the Merits

2 As to the last element, judgment on the merits, relevant here is Arizona’s rule that “a party’s
3 failure to appeal a final administrative decision makes that decision final and res judicata.” Olson, at
4 1086. “If no timely appeal is taken, the decision of the board is conclusively presumed to be just,
5 reasonable and lawful.” Olson, at 1086. Arizona applies this principle “even to alleged constitutional
6 errors that might have been corrected on proper application to the court which has jurisdiction of the
7 appeal.” Id.
8 In Olson, a “licensed psychologist, performed an exorcism on a child believed to have been the
9 victim of Satanic ritual abuse.” Id., at 1084. The social workers who referred the child to Olson reported
10 this event to the Arizona Board of Psychologist Examiners. Id. The Arizona Board of Psychologist
11 Examiners conducted several hearings. Id., at 1085. They found Olson had engaged in unprofessional
12 conduct and revoked his license. Id. Olson did not file an appeal of the board’s actions to the Arizona
13 Superior Court as allowed by state law. Id. He instead filed a federal lawsuit against the Board and its
14 members alleging that “the Board's revocation of his license: (1) violated the Religious Freedom
15 Restoration Act, (2) violated 42 U.S.C. § 1983 by infringing on his First Amendment right to religious
16 freedom, and (3) violated 42 U.S.C. § 1985 by depriving him of his right to equal protection and due
17 process.” Id. at 1085. Olson “sought a declaratory judgment that the defendants had violated his First
18 and Fourteenth Amendment rights and preliminary and permanent injunctions requiring the Board to
19 reinstate his license to practice psychology and prohibiting the Board from revoking his license in the
20 future for his use of prayer therapy. He also requested compensatory and punitive damages.” Id. The
21 Ninth Circuit found that in Olson’s federal case, he asserted “constitutional defenses to the license
22 revocation-defenses that were raised, or could have been raised, at the Board hearing.” Id., at 1084. The
23 Ninth Circuit found the parties were the same or in privity with each other. Id. It found that Olson’s
24 failure to appeal the Board’s decision to the Arizona superior court made the Board’s decision final. Id.
25 It held that the doctrine of res judicata prevented Olson “from relitigating in federal court legal and
26 factual issues that were, or could have been, litigated before the Board.” Id.
27 As was the case in Olson, it is undisputed that the Plaintiff here could have appealed the LEMSC’s
28 decision to the Arizona Superior Court. It is undisputed that Plaintiff did not file such an appeal, but,

ORDER
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1 instead, like the plaintiff in Olson, filed a federal lawsuit alleging violations of his constitutional rights.
2 Plaintiff’s failure to seek judicial review of the LEMSC’s administrative order “precludes collateral attack
3 of the order in a separate complaint.” Olson, at 1086. Based on Arizona’s rule regarding the failure to
4 appeal an administrative decision, the decision of the LEMSC is a final judgment on the merits.
5 Plaintiff argues that the LEMSC did not have the statutory authority to decide the constitutional
6 questions he raised. Dkt. 44. He argues that it did not have the authority to award remedies against the
7 individual Defendants or award Plaintiff any emotional, physical reputational, or punitive damages. Id.
8 Plaintiff fails to address the Ninth Circuit’s holding in Olson, and its’ rejection of many of these
9 arguments. Instead, Plaintiff points two cases, the first of which carved out an exception to Arizona’s
10 general rule that “the failure to seek judicial review of an administrative order precludes attacking the
11 order by means of a separate complaint. Where a party does not appeal a final administrative decision
12 that decision becomes final.” Dkt. 44 (citing Hawkins v. State, Dept. of Economic Sec., 183 Ariz. 100,
13 104(Ariz. Ct. App. 1995)). The Hawkins Court held that in cases where a plaintiff alleges discrimination
14 claims, personnel board proceedings and determinations are not to be accorded res judicata or collateral
15 estoppel. Id. That Court found that the state’s anti-discrimination statute, “like Title VII, is remedial
16 legislation designed to eliminate discrimination and to protect employees. It must therefore be liberally
17 construed to protect employees.” Id. Plaintiff makes no claims of discrimination based upon his
18 membership in a protected class, nor does he show that the Hawkins exception applies. The Court is
19 unwilling to extend that ruling here. Plaintiff’s citation to Ferris v. Hawkins, 135 Ariz. 329 (1983), is
20 equally unpersuasive. In Ferris, the plaintiff tried to use a decision from an appeal of the unemployment
21 compensation board that his discharge was unfair in an appeal of a personnel board hearing. Id. The
22 Arizona court declined to apply res judicata, holding that the two proceedings involved distinct legal
23 rights and remedies, and that to apply res judicata under such circumstances would have defeated the
24 intent of legislature and purposes of the statutes. Id. Plaintiff makes no such showing that res judicata
25 should not be applied here.
26 The requirement that the judgment be on the merits, is met. Hawkins, at 103-04.
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ORDER
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1 3. Conclusion on Res Judicata

2 The doctrine of res judicata now prevents Plaintiff “from relitigating in federal court legal and
3 factual issues that were, or could have been, litigated” before the LEMSC. Olson, at 1085. Accordingly,
4 Plaintiff’s constitutional claims, made pursuant to § 1983, are barred as to the State Defendants. The
5 factual predicates for Plaintiff’s state law claims of false light invasion of privacy, intentional infliction of
6 emotional distress, defamation, and negligent supervision are not wholly clear. To the extent that they are
7 based on claims that were or could have been litigated in the appeal with the LEMSC, they are barred.
8 The State Defendants concede that some of the state law claims, defamation and intentional infliction of
9 emotional distress, predicated on alleged statements about child pornography on Plaintiff’s computer and
10 statements in a letter to DES, are not barred by res judicata. Dkt. 38, at 12. As will be addressed below,
11 Plaintiff seeks leave to amend his Complaint to clarify which events apply to which claims. Plaintiff
12 should be mindful, though, that any “legal and factual issues that were, or could have been, litigated”
13 before the LEMSC are bared by res judicata.
14 D. ROOKER-FELDMAN
15 Because the Court has concluded that legal and factual issues that were or could have been
16 litigated before the LEMSC are barred, the State Defendants concede that the Court need not reach its
17 Rooker-Feldman doctrine arguments. Dkt. 47, at 6.
18 E. CLAIMS AGAINST DEFENDANT GILLETTE-STROUD, THE NOTICE OF
CLAIM STATUTE, AND MOTION TO AMEND
19
The State Defendants collectively move to dismiss claims against Defendant Gillette-Stroud,
20
asserting that there are not facts alleged involving her that would entitle Plaintiff to relief. Dkts. 38, at 8
21
and 47. The State Defendants argue that Plaintiff’s state law claims of false light invasion of privacy,
22
intentional infliction of emotional distress, defamation, and negligent supervision are likely barred by
23
Arizona’s Notice of Claim statute, A.R.S. § 12-821.01 (A), which requires the claims against a public
24
entity must be filed with that public entity within 180 days “after the cause of action accrues.” Dkts. 38
25
and 47. Plaintiff responds to these arguments, and moves for leave to amend his Complaint. Dkt. 44.
26
Fed. R. Civ. P. 15(a)(2) provides that “a party may amend its pleading only with the opposing
27
party's written consent or the court's leave. The court should freely give leave when justice so requires.”
28

ORDER
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1 Plaintiff should be given leave to file an amended complaint, if he so chooses. Plaintiff should be
2 mindful, though, that all claims that were or could have been litigated during the LEMSC appeal,
3 including state law claims, are bared by res judicata. If Plaintiff chooses to file an amended complaint, it
4 should be filed no later than March 31, 2011. The State Defendants’ motion to dismiss claims against
5 Defendant Gillette-Stroud, and the motion to dismiss the state law claims as barred by the Notice of
6 Claim statute, should be denied without prejudice.
7 F. STATE DEFENDANT’S MOTION FOR ATTORNEYS’ FEES UNDER § 1988
8 In the Ninth Circuit, a defendant may “recover fees and costs from a plaintiff in a civil rights case
9 only in exceptional circumstances in which the plaintiff's claims are ‘frivolous, unreasonable or without
10 foundation.’” Harris v. Maricopa County Superior Court, --- F.3d ----, 2011 WL 167040 (9th Cir. 2011)
11 (citing Barry v. Fowler, 902 F.2d 770, 773 (9th Cir.1990) and Christiansburg Garment Co. v. EEOC, 434
12 U.S. 412, 422 (1978)). “[O]nly fees attributable exclusively to plaintiff's frivolous claims, are recoverable
13 by a defendant.” Id.
14 The State Defendants’ motion for attorneys’ fees and costs should be denied. A claim is frivolous
15 when it has no arguable basis in law or fact. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
16 Although eventually concluding that Plaintiff’s constitutional claims are barred by res judicata, this Court
17 can not say that the claims had no arguable basis in law or fact. The motion for attorneys’s fees and costs
18 should be denied.
19 G. STIPULATED MOTION FOR EXTENSION OF TIME
20 Parties filed a stipulated motion for a 90 extension of time on discovery and dispositive motions
21 deadlines. Dkt. 53. The closest deadline, set for April 19, 2011, is for the completion of written
22 discovery. Dkt. 53. The dispositive motions deadline is set for December 9, 2011.
23 Except for the written discovery deadline, parties should not be given an extension of time to
24 complete discovery or to file their dispositive motions. This case was filed in July of 2010 after the
25 parties participated in extensive administrative hearings. Parties have failed to show that an extension of
26 time is warranted except the deadline for the completion of written discovery. The deadline for the
27 completion of written discovery should be reset for May 3, 2011.
28

ORDER
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1 III. ORDER
2 Therefore, it is hereby, ORDERED that:
3 • State Defendants’ Motion for Judgment on the Pleadings (Dkt. 38) is
4 • GRANTED as to Plaintiff’s claims against the State, and against the DPS officials
5 Gillette-Stroud and Griffith in their official capacities;
6 • GRANTED as to Plaintiff’s constitutional claims asserted pursuant 42 U.S.C. § 1983
7 because they are barred by res judicata;
8 • GRANTED as to state law claims to the extent that they include any legal and factual
9 issues that were, or could have been, litigated before the LEMSC because they are barred
10 by res judicata;
11 • DENIED WITHOUT PREJUDICE as to the claims asserted against Defendant Gillette-
12 Stroud;
13 • DENIED WITHOUT PREJUDICE as to whether the state law claims as barred by
14 Arizona’s Notice of Claim statute; and
15 • DENIED to the extent the State Defendants seek attorneys fees and costs pursuant to §
16 1988.
17 • Plaintiff’s motion for leave to file an amended complaint (Dkt. 44) is GRANTED;
18 • Plaintiff’s amended complaint, if any, SHALL BE FILED on or before March 31, 2011.
19 • The parties’ Stipulation for Extension of Pretrial Deadlines (Dkt. 53) is DENIED, except
20 that the deadline for all written discovery is reset to May 3, 2011.
21 The Clerk of the Court is directed to send uncertified copies of this Order to all counsel of record
22 and to any party appearing pro se at said party’s last known address.
23 DATED this 7th day of March, 2011.
24
25
A
Robert J Bryan
26 United States District Judge

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ORDER
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