All Claims by JP Vicente Against Mayor Kuykendall and Devendorf Tossed By Judge

PRESCOTT, AZ (April 27, 2012) -- In U.S. District Court Judge David Campbell yesterday issued an order granting in part the City's Motion to Dismiss in plaintiff John Paul Vicente's claims against the City of Prescott and various defendants. 

According to City Attorney Gary Kidd, the Court order dismissed four of seven counts in their entirety, and dismissed all counts against Mayor Marlin Kuykendall and Battalion Chief Don Devendorf.  Additionally, the court dismissed several other counts against former Deputy City Manager Laurie Hadley, Human Resources Director Mary Jacobsen, and Fire Chief Bruce Martinez.

“It’s important to keep in mind that at this stage that the plaintiff’s claims are allegations,” explains Kidd.  “No evidence or proof has been presented at this point in the proceedings. For purposes of a court considering a motion to dismiss, the legal standard is based on the initial pleadings.  The court is compelled to view any allegations of the complaint as true for purposes of ruling on a motion of this nature.”

Summary of District Court Order

 The City Attorney’s Office has summarized the U.S. District Court Order as follows:

Count I - Alleged violation of Freedom of Speech/a First Amendment claim for allegedly forcing the plaintiff, under duress, to enroll into a retirement program because of allegedly expressing his views on union activities.

• This count was dismissed  as to the City, Mayor Kuykendall, and Battalion Chief Devendorf. 
• This count remains as to Hadley, Jacobsen and Chief Martinez

Count II - Alleged Violation of the Right of Association for Vicente’s union activities

•  This count is dismissed as to all defendants.

Count III - Alleged section 1983/Civil Rights violation

This count was not dismissed in its entirety, but does not rely on an independent constitutional violation other than Counts I and II, and for that reason the City considers it duplicative as to Counts I and II (both section 1983 claims)

• This count, however, was dismissed as to the City, Mayor Kuykendall, and Battalion Chief Devendorf. 
• This count remains as to Hadley, Jacobsen and Chief Martinez, although it is duplicative of Count I.

Count IV-  Defamation regarding alleged accusations of criminal activity in Vicente's shift swapping activities

• This count was dismissed as to Mayor Kuykendall, Battalion Chief Devendorf, Hadley, Jacobsen and Chief Martinez. 
• This count remains against the City and Norwood

Count V and VI - Aiding and Abetting a Civil Conspiracy

• These counts were dismissed as to all defendants

Count VII - Violation of Arizona Constitutional Rights under Article 2, Sect 5, freedom to speak, write and publish freely

The court dismissed this claim because no private cause of action exists for these claims.

Count VII also alleged a violation of an Arizona Statute, ARS 23-1411, that protects very specific employee rights described in the statute; because Vicente did not allege that any of those same specific rights mentioned in the statute were violated this count was dismissed.

Count VII was dismissed in its entirety as to all defendants.

Count VIII - Injurious Falsehood or making allegedly defamatory statements

The City did not specifically request dismissal in its original motion and it was not therefore dismissed and remains against pending against the defendants, with the exception of Mayor Kuykendall and Battalion Chief Devendorf, against whom all allegations have been dismissed by the court.

• Dismissed as to Mayor Kuykendall and Chief Battalion Devendorf
• Remains agaist all other defendants

According to Kidd, the City anticipates that the remaining issues will be discussed and presented to the court at a future date through a scheduling conference which will set timeframes for discovery and other matters in the case.

Read the Court Order here.