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O:\CV Signed Orders\CJRA-06-0314-9,28,34,35 Case 2:06-cv-00314-MHM Document 188 Filed 03/27/07 Page 1 of 16 1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 David William Peabody, ) No. CV 06-0314-PHX-MHM 9 ) Plaintiff, ) ORDER 10 ) vs. ) 11 ) ) 12 United States of America, et al., ) ) 13 Defendants. ) ) 14 ) 15 Currently before the Court are: (1) City of Phoenix's Motion to Dismiss (Dkt.#9); (2) 16 Valley Big Brothers/Big Sister's Motion to Dismiss (Dkt.#28); (3) Defendants Ruth 17 McGregor, Rebecca White-Berch, Terry Goddard, Michael Prost and Janet Napolitano's 18 (collectively the "State Defendants") Motion to Dismiss (Dkt.#34); (4) Defendant John 19 Paulsen, Maricopa County, Maricopa County Attorneys' Office and James Minter's Motion 20 to Dismiss (collectively the "County Defendants") (Dkt.#37); Defendants United States of 21 America, Robert C. Broomfield, Roslyn O. Silver, Virginia Mathis, Ferdinand Fernandez, 22 A. Wallace Tashima, Susan P. Graber, Alex Kozonski, David Thompson, James A. Van der 23 Heydt, Pamela Rymer, Raymond C. Fisher, Andrew J. Kleinfeld, J. Clifford Wallace, M. 24 Margaret McKeown, and Alberto Gonzales' (collectively the "Federal Defendants") Motion 25 to Dismiss (Dkt.#79); Susan Porter's Motion to Dismiss (Dkt.#81); Defendants Olson Jantsch 26 & Bakker, P.A., Jeffrey King, Cristina Chait, Michael Barth and Thomas Bakker's 27 (collectively the "OJB Defendants") Motion to Dismiss (Dkt.#85); Mohr Hackett Pederson 28 Blakley & Randolph P.C., Daniel Beeks and Charles Kelhoffer's (collectively the "Mohr Case 2:06-cv-00314-MHM Document 188 Filed 03/27/07 Page 2 of 16 1 Hackett Defendants") Motion to Dismiss (Dkt.#92); Jones Skelton & Hoculi, David Lewis 2 and A. Melvin McDonald's (collectively the "Jones Skelton Defendants") Motion to Dismiss 3 (Dkt.#104); Mike Murphy's Motion to Dismiss (Dkt.#125); and Defendant Dale Roberts' 4 Motion to Dismiss. (Dkt.#170). In addition, pending before the Court are Plaintiff's Motions 5 for Sanctions against Attorney Georgia Staton (Dkt.#35); Plaintiff's Motion for Sanctions 6 against Attorney Michael Sullivan (Dkt.#76); Plaintiff's Motion for Sanctions against 7 Attorney Michelle Roddy (Dkt.#87); the OJB Defendants' Motion to Declare David William 8 Peabody a Vexatious Litigant (Dkt.#165-2); and Plaintiff's Motion for Reconsideration 9 (Dkt.#172). After reviewing the pleadings and deeming oral argument to be unnecessary the 10 Court issues the following order. 11 I. Motions to Dismiss 12 A. Background 13 On January 26, 2006, Plaintiff David William Peabody ("Plaintiff") filed his initial 14 complaint in this matter, which spanned 230 pages in length. (Dkt.#1). On March 20, 2006, 15 before any responsive pleading was on file, pursuant to Rule 15(a) of the Federal Rules of 16 Civil Procedure, Plaintiff filed his instant Amended Complaint ("Complaint") against the 17 forty-four named Defendants.1 (Dkt.#5). Plaintiff's Complaint spans 240 pages in length and 18 asserts claims of conspiracy, violation of his civil rights, fraud and racketeering in his eight 19 counts against the named Defendants. The crux of Plaintiff's Amended Complaint is that his 20 rights have been violated by various individuals, including multiple public officials and state 21 and federal judges; and multiple private and public entities. Plaintiff alleges that his rights 22 were originally violated with a 1984 arrest and indictment in Maricopa County Superior 23 Court arising out charges of child molestation of a child that Plaintiff was mentoring through 24 the Valley Big Brothers/Big Sisters Program. (Complaint, p.31, ¶¶ 75-82 I-M). Those 25 criminal charges were dismissed; however, Plaintiff's interaction with the judicial system 26 regarding this matter continued in the role of a civil plaintiff. It appears that at least five 27 28 1The Honorable William P. Copple, has been dismissed from this suit. (Dkt.#169). - 2 - Case 2:06-cv-00314-MHM Document 188 Filed 03/27/07 Page 3 of 16 1 related lawsuits have been filed by Plaintiff alleging claims ranging from fraud, conspiracy 2 and civil rights violations against many of the same Defendants that are named in this suit. 3 (See Complaint, p.80 - CV87-10047; (2) p. 185, CIV 91-1255-PHX-WPC; (3) p.191, CV95- 4 01447; (4) p.207, CIV 97-1359-PHX-RCB; and (5) p.223, CIV 01-1039-PHX-ROS). These 5 cases were all dismissed at the trial court level and addressed and affirmed at various 6 appellate levels as well. For instance, after Plaintiff's 1987 initial lawsuit in Maricopa 7 County Superior Court, CV87-10047, filed against Defendants City of Phoenix, Mike 8 Murphy, Dale Roberts, Susan Porter, Valley Big Brothers/Big Sisters, David Shank and Joan 9 Gale, was dismissed upon summary judgment, the Arizona Court of Appeals affirmed the 10 ruling, the Arizona Supreme Court denied Plaintiff's petition for review and the United States 11 Supreme Court denied certiorari. (Valley Big Brothers/Big Sisters Motion to Dismiss, 12 Dkt.#28, Exhibits A-D). Like the instant suit, Plaintiff's lawsuit in 1987, asserted violations 13 of his civil rights as well as claims of fraud and conspiracy. (Id. Exhibit A). 14 In addition, Plaintiff's 1995 lawsuit in Maricopa County Superior Court, CV 95- 15 01447, against Defendants City of Phoenix, Jones Skelton & Hoculi, A. Melvin McDonald, 16 Mike Murphy, Susan Porter, Dale Roberts, Olson Bakker & Barth, Valley Big Brothers/Big 17 Sisters, David Shank and Joan Gale was dismissed with prejudice by the trial court on 18 grounds of standing, res judicata, statute of limitations and immunity. (Id., Exhibit E). With 19 respect to res judicata and statute of limitations grounds, the trial court, regarding Plaintiff's 20 complaint, observed in pertinent part: 21 Plaintiff's Complaint basically alleges that there was a conspiracy syndicate, which Plaintiff claims was created with the purpose of damaging Plaintiff by 22 preventing him from prevailing in his 1987 lawsuit. According to Plaintiff, the membership of the criminal syndicate included not only the Defendants in this 23 lawsuit, but also the trial and appellate judges assigned to the 1987 litigation." (Id. Exhibit E, pp.1-2). 24 The court's ruling dismissing the suit on limitations grounds and the award of 25 attorneys' fees was affirmed by the Arizona Court of Appeals. (Id., Exhibit F). 26 Several of Plaintiff's actions regarding the denial of his civil rights arising from his 27 1984 arrest and subsequent litigations have also been filed in this District, but have been 28 - 3 - Case 2:06-cv-00314-MHM Document 188 Filed 03/27/07 Page 4 of 16 1 dismissed as well. For example, Plaintiff filed suit in this District in 1991, CIV 91-1255- 2 PHX-WPC, against the State of Arizona claiming a deprivation of his rights based upon a 3 denial of his access to the courts and violation of his civil rights arising out his previously 4 unsuccessful litigation in Arizona state courts. The district court dismissed the suit for lack 5 of subject matter jurisdiction and the result was affirmed by the Ninth Circuit Court of 6 Appeals, which found that Plaintiff was improperly challenging the state court decision in 7 federal court. Peabody v. State of Arizona, 1992 WL 207882 (9th Cir. 1992) (unpublished 8 opinion). 9 In 1997, Plaintiff again filed a similar civil rights suit in this District, CIV 97-1359- 10 PHX-RCB, before the Honorable Robert C. Broomfield, naming many of the same 11 Defendants in this suit. Plaintiff's action was dismissed upon screening with Plaintiff's in 12 forma pauperis request, pursuant to 28 U.S.C. § 1915(e). The Ninth Circuit affirmed the 13 decision on September 17, 1999 finding again that the district court lacked subject matter 14 jurisdiction because plaintiff was requesting the District court to review the final 15 determinations of the state court judicial proceedings and Plaintiff's claims amounted to 16 nothing more than "an impermissible collateral attack against the state court for its adverse 17 rulings in the prior action." Peabody v. Zlaket, et al., 1999 WL 731360 (9th Cir. 1999) 18 (unpublished opinion). 19 In 2001, Plaintiff again filed a civil rights action in this District before the Honorable 20 Roslyn O. Silver, CIV 01-1039-PHX-ROS, asserting allegations deriving from his 1984 21 arrest and subsequent denial of his rights before both the Arizona and federal courts. 22 Plaintiff's complaint again named many of the same Defendants that are named in this suit. 23 The case was terminated upon denial of Plaintiff's request to proceed in forma pauperis by 24 Judge Silver. The Ninth Circuit summarily affirmed a previous decision to dismiss Plaintiff's 25 compliant for failure to state a claim. (CIV 01-1039, Dkt.#34).2 26 27 2Judge Silver later commented in her January 22, 2004, order that the Ninth Circuit's 28 jurisdiction in making this ruling was questionable because of apparent procedural confusion - 4 - Case 2:06-cv-00314-MHM Document 188 Filed 03/27/07 Page 5 of 16 1 Plaintiff challenges the results of these prior litigations addressed by both the Arizona 2 and federal courts and asserts an overall conspiracy between the named Defendants to 3 deprive him of his right to a fair and full opportunity to address the damage done to his 4 reputation and property. For instance, Plaintiff alleges in pertinent part: 5 [T]he Federal and State Governments have a long history of using a wide variety of unlawful tactics to violate the rights of disfavored citizens, this 6 FIRST AMENDED COMPLAINT is directed to unlawful tactics, unwritten "laws," and/or methods, customs, policies, and/or practices used in the decision 7 making process during prior litigation, to unjustly deprive Plaintiff Peabody of his Federal right to full, fair, adequate, effective, meaningful, and equal 8 access to the courts, to deprive Peabody of his property or his reputation and cause of action and recovery therefrom for public use without just 9 compensation nor Due Process; and to inflict continuing cruel and unusual punishment for crimes that Peabody did NOT commit.
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