                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


        IKEMEFULA CHARLES IBEABUCHI, Plaintiff/Appellant,

                                        v.

                     DOUG DUCEY, Defendant/Appellee.

                             No. 1 CA-CV 18-0001
                               FILED 9-18-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV 2017-012339
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

Ikemefula Charles Ibeabuchi, Florence
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Connie T. Gould
Counsel for Defendant/Appellee



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.
                           IBEABUCHI v. DUCEY
                            Decision of the Court

B R O W N, Judge:

¶1           Ikemefula Charles Ibeabuchi appeals the superior court’s
order granting Governor Doug Ducey’s motion to dismiss. Because
Ibeabuchi’s complaint failed to state a claim upon which relief may be
granted, we affirm.

                              BACKGROUND

¶2             Ibeabuchi filed a complaint against Governor Ducey, alleging,
among other things, that “Defendants, in-concert or, otherwise . . . denied
[Ibeabuchi] his status check of $70,675,261.00” and “collectively” arrested
him in October 2016 for probation violations.1 The Governor filed a motion
to dismiss under Arizona Rule of Civil Procedure (“Rule”) 12 (b)(6) for
failure to state a claim and failure to file a notice of claim as required by
law. The Governor also asserted that any attempt Ibeabuchi made to
amend his complaint would be futile. Ibeabuchi did not respond to the
motion to dismiss; instead, he filed a “Notice of Claim Statute, At-Law” and
an “Acknowledgment.” The superior court granted the motion to dismiss
with prejudice, explaining that Ibeabuchi had not “substantively
addressed” the motion and there was “[g]ood cause . . . for the various
reasons cited by [Governor Ducey].”2 Ibeabuchi timely appealed.

                               DISCUSSION

¶3            A valid complaint must include “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Ariz. R. Civ. P. 8
(a)(2). This notice pleading standard is required to provide the opposing
party “fair notice of the nature and basis of the claim and [an indication]
generally [of] the type of litigation involved.” Cullen v. Auto-Owners Ins.
Co., 218 Ariz. 417, 419, ¶ 6 (2008) (quoting Mackey v. Spangler, 81 Ariz. 113,


1      The complaint also named former United States Attorney General,
Loretta Lynch, and Wells Fargo Chief Executive Officer John Stumpf, as
defendants, but neither of them are parties to this appeal.

2       After Governor Ducey filed a motion to dismiss, but before it was
granted, Ibeabuchi also filed an “Affidavit in Support of Complaint By
Plaintiff, At-Law.” The record does not reflect whether the court addressed
this affidavit. Although the affidavit’s timing suggests it was an attempt to
respond to the motion to dismiss, the affidavit does not substantively
address the motion and thus it has no bearing on the outcome of this appeal.



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                             IBEABUCHI v. DUCEY
                              Decision of the Court

115 (1956)). If an opposing party is served with a complaint that does not
comply with Rule 8, the party may properly move to dismiss the claim
under Rule 12(b)(6). Id. at ¶ 7. On appeal, we review the dismissal of a
claim under Rule 12(b)(6) de novo. Coleman v. City of Mesa, 230 Ariz. 352,
356, ¶ 7 (2012).

¶4             On review, we “look only to the pleading itself and consider
[its] well-pled factual allegations.” Cullen, 218 Ariz. at 419, ¶ 7 (citations
omitted). We also presume “the truth of the . . . factual allegations and
indulge all reasonable inferences.” Id. (citations omitted). However, we do
not accept the truth of “allegations consisting of conclusions of law,
inferences or deductions that are not necessarily implied by well-pleaded
facts, unreasonable inferences or unsupported conclusions from such facts,
or legal conclusions alleged as facts.” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386,
389, ¶ 4 (App. 2005) (citations omitted).

¶5            Ibeabuchi argues the superior court erred in dismissing his
claims with prejudice because his complaint “contained sufficient matter
accepted as true to state a claim . . . to relief . . . that is plausible on its face”;
“allow[s] the court to draw the reasonable inference that . . . [Governor
Ducey] is liable for the claims, alleged”; and “[i]t is a recognized element of
Constitutional Tort by a government official that [Governor Ducey] caused
[Ibeabuchi’s] injury.”

¶6             Neither the legal or factual allegations in the complaint
support Ibeabuchi’s broad assertions. The complaint lists several
constitutional amendments in the section titled “Applicable Law
Supporting Claims,” but Ibeabuchi does not assert any specific legal claim
against the Governor. Likewise, Ibeabuchi lists numerous facts, but none
of his facts form a basis for a claim against the Governor. A complaint that
relies merely on conclusory statements, like those asserted by Ibeabuchi, is
insufficient to state a claim upon which relief can be granted. See Cullen,
218 Ariz. at 419, ¶ 7 (citation omitted).

¶7             Ibeabuchi argues that even if his complaint was not well-pled
and failed to state a cognizable claim, he should have been given an
opportunity to amend his complaint. Ibeabuchi relies on Haines v. Kerner,
404 U.S. 519, 521 (1972) (per curiam), but Haines is inapposite because the
Supreme Court’s conclusion was specific to the factual case before it. 404
U.S. at 520–21 (“We cannot say with assurance that under the allegations of
the pro se complaint . . . it appears ‘beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle to him
relief.’” (quoting Conley v. Gibson, 355 U.S. 41, 45–46 (1957))).


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                           IBEABUCHI v. DUCEY
                            Decision of the Court

¶8             Under Arizona law, before a Rule 12(b)(6) motion is granted,
a “non-moving party should be given an opportunity to amend the
complaint.” Wigglesworth v. Mauldin, 195 Ariz. 432, 439, ¶ 26 (App. 1999)
(citation omitted). However, a court should only allow the amendment if
it will cure the complaint’s defects. See id.

¶9            Amending Ibeabuchi’s complaint would be futile because he
cannot properly assert a private right of action for a violation of
constitutional rights. Instead, assertion of a claim under 42 U.S.C. § 1983
would be required, Yanes v. Maricopa Cty., 231 Ariz. 281, 283, ¶ 11 (App.
2012), and although § 1983 generally applies to “every person” who violates
the constitutional rights of another, Governor Ducey is not such a person
when he is acting in his official capacity, Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989).

¶10           Moreover, to the extent Ibeabuchi is suing Governor Ducey in
his individual capacity, Ibeabuchi has not identified any specific factual
allegations he would add to his complaint to connect the Governor to the
claimed injuries. Ibeabuchi has not even suggested that the Governor had
any personal involvement in either Ibeabuchi’s arrest or subsequent
confinement, and the alleged denial of the status check occurred on April
27, 2015—almost a year and a half before Ibeabuchi was arrested in
Arizona. Accordingly, we affirm the superior court’s dismissal order
because even if Ibeabuchi amended the complaint, his complaint against
the Governor would fail to state a claim upon which relief can be granted.3




3       Ibeabuchi also suggests the court erred by allowing Governor Ducey
to file a motion to dismiss instead of an answer to the complaint, and that
he was unable to respond to the motion without a court order. The civil
rules, however, allow filing of a motion before an answer, Ariz. R. Civ. P.
12 (a) (explaining that a defendant “must file and serve an answer or other
responsive pleading” within 20 days of service), and Ibeabuchi did not need
a court order to respond to the Governor’s motion, see Ariz. R. Civ. P. 7
(listing allowed pleadings, including a “reply to an answer,“ if ordered by
the court).



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                       IBEABUCHI v. DUCEY
                        Decision of the Court

                            CONCLUSION

¶11          For the foregoing reasons, we affirm the superior court’s
order dismissing with prejudice Ibeabuchi’s complaint.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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