Rong v. Arizona, State of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Yi Rong,
Plaintiff,
v.
State of Arizona, et al.,
Defendants.
No. CV-25-00351-TUC-JGZ (LCK)
REPORT AND
RECOMMENDATION
On June 30, 2025, a Complaint was filed by Plaintiff Yi Rong. (Doc. 1.) Rong also
filed a Motion to Proceed In Forma Pauperis, which the Court granted. (Docs. 2, 12.) The
Court dismissed the Complaint with leave to amend certain claims against only some of
the originally named Defendants. (Doc. 15.) Plaintiff then filed an Amended Complaint.
(Doc. 17.) The Court is required to dismiss a case filed in forma pauperis if the Court
determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B).1 Pursuant to the Rules of Practice of the
Court, 	this 	matter 	was 	referred 	to 	Magistrate 	Judge 	Kimmins 	for 	Report 	and
Recommendation. Therefore, the judge has reviewed the Amended Complaint pursuant to
1 Plaintiff sought in forma pauperis status in a related 2020 case in this Court. The
District Court screened that complaint under § 1915 and dismissed it with prejudice as
violating Federal Rule of Civil Procedure 8 and being wholly devoid of merit. Rong v.
Seymour, No. CV-20-00410-TUC-JCH, 2020 WL 7136565 (D. Ariz. Nov. 13, 2020).
Plaintiff’s appeal of that decision was dismissed as frivolous. Rong v. Seymour, No. 20-
17373, 2021 WL 2272420 (9th Cir. Mar. 9, 2021).
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§ 1915(e). The Magistrate Judge recommends the District Court, after its independent
review of the record, dismiss the Amended Complaint.
FACTUAL AND PROCEDURAL BACKGROUND
After filing the Amended Complaint, Plaintiff submitted a “Supplement” of
“evidence.” (Doc. 21.) Because the Court is reviewing the Amended Complaint solely on
its face, this ruling is not based on any facts not alleged in the pleading. However, for
purposes of contextual background, the Court includes some limited information from the
Supplement. Plaintiff was arrested in Florida on July 3, 2023, based on a May 3rd warrant
from Arizona. (Doc. 21 at 12, 17, 75.) She was charged in Pima County with a felony for
custodial interference. (Id. at 2, 14.) To resolve the case, she accepted a plea agreement,
pursuant to which she pled guilty to a misdemeanor of custodial interference. (Id. at 14,
46.) While Plaintiff was in jail, her daughter was placed in the custody of her ex-husband,
Cong Cao, and he moved the child to Hong Kong. (Id. at 112.)
The Amended Complaint names six Defendants who are (or were at the time of the
alleged events) employees of the Pima County Attorney's Office: Mark Hotchkiss, Fabian
Pacheco, Ryan Gant, Alexis Gallego, Alex Lambdin, and Victoria Otto.2 Plaintiff alleges
that Defendants Hotchkiss, Otto, and Lambdin wrongfully asserted Arizona jurisdiction
over a criminal case and falsified the criminal case and related arrest warrants. (Doc. 17 at
9 ¶ 5.) Plaintiff alleges these three attorneys falsified a May 3, 2023, warrant without due
process, hid the warrant from Plaintiff, incarcerated Plaintiff in jail, did not agree to dismiss
criminal charges against Plaintiff, insisted on extraditing Plaintiff from Florida, and aided
in the wrongful abduction of Plaintiff’s daughter to China. (Id. at 18 ¶ 23.) Plaintiff also
alleges these attorneys attended hearings in Plaintiff’s criminal case; talked to her child’s
best interest attorney; signed a plea agreement without foundation; and forced Plaintiff to
2 Plaintiff spent part of the Amended Complaint disagreeing with the Court’s prior
order dismissing the original Complaint. (Doc. 17 at 7-8 ¶¶ 2-3.) Plaintiff also included
significant allegations with no direct connection to Defendants. (Id. at 9-18 ¶¶ 6-22.) The
Court did not summarize those portions of the Amended Complaint.
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sign the plea agreement to avoid extended imprisonment, psychological treatment, and fatal
torture. (Id. at 18-19 ¶ 24.)
Plaintiff alleges Defendants Hotchkiss, Otto, Lambdin, and Gant presented false
information to the grand jury on July 19, 2023, about Plaintiff unlawfully removing her
daughter from Arizona to other states. (Id. at 20-21 ¶ 26.) Plaintiff further alleges that
Defendant Hotchkiss’s statements at her initial appearance were retaliatory. (Id. at 18-19
¶ 24.) Finally, Plaintiff alleges that Defendant Lambdin tried to coerce Plaintiff to pay her
ex-husband’s costs to abduct her daughter to China. (Id. at 22 ¶ 27.)
Plaintiff alleges Defendant Pacheco obtained a May 3, 2023, warrant without due
process based on false information; falsified a second May 3, 2023, warrant; committed
perjury before a jury for a July 19, 2023, warrant; wrote an investigative report in March
2023 that included false information and was completed before he interviewed Cao; and
participated in international child abduction with her ex-husband. (Id. at 19-21 ¶¶ 25,
26(2).) Plaintiff alleges Defendant Gallego prepared the March 2023 report containing
false information. (Id. at 22 ¶ 28.)
Plaintiff asserts the following legal claims: Claim 1, wrongful abduction and
retention of a minor under 22 U.S.C. § 9001 (formerly 42 U.S.C. § 11601); Claim 2
(a) Fourteenth Amendment violation based on deprivation of Plaintiff’s liberty and false
imprisonment under 42 U.S.C. § 1983, and (b) violation of A.R.S. § 13-1303; Claim 3 -
intentional infliction of emotional distress; Claim 4, libel and slander; Claim 5, violation
of Arizona laws on retention of legal documents; and Claim 6, obstruction of justice and
forgery. (Id. at 8-9 ¶ 4.) Plaintiff seeks the following relief: return of her daughter to the
United States; compensatory and punitive damages; the purge of Plaintiff’s criminal
records, including arrests and orders of protection; criminal prosecution of Cao and others
involved in her family custody case; banning Cao from the United States; and ordering all
Defendants to report to the FBI for investigation and prosecution. (Doc. 17 at 4, 32-33.)
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DISCUSSION
The factual basis of Plaintiff’s claims has remained very similar to what she alleged
in her initial Complaint, although she has now tied specific conduct to individual
Defendants. However, the six legal claims asserted in the Amended Complaint are
completely different than the claims raised in Plaintiff’s initial pleading. Upon review, half
of Plaintiff’s claims cannot be alleged against this group of Defendants. The other half are
barred because success on them would invalidate Plaintiff’s state criminal conviction.
Therefore, as explained below, the Court finds the Amended Complaint should be
dismissed for failure to state a claim to relief.
Claim 1
Plaintiff alleged a violation of the International Child Abduction Remedies Act, 22
U.S.C. § 9001, et seq. (formerly found at 42 U.S.C. § 11601, et seq.). The statute provides
a mechanism for a parent to file a lawsuit to obtain the return of a child, or access to a child,
that was wrongfully removed from the country. 22 U.S.C. § 9003. Although Plaintiff
alleges that Defendants’ actions in prosecuting her facilitated the removal of her child to
China, Defendants are not alleged to have custody of her child and have no control over
her return to the United States. Therefore, Claim 1 must be dismissed with prejudice.
Claims 2(b) and 6
Claim 2(b) and Claim 6 allege state law criminal violations that may not be brought
as a private civil claim. First, in Claim 2(b), Plaintiff alleges false imprisonment under
A.R.S. § 13-1303. This is a criminal statute that does not create a private civil action for
damages. See McDonald v. City of Phoenix, No. CV-23-01275-PHX-DWL (DMF), 2023
WL 12140649, at *8 (D. Ariz. Nov. 21, 2023). Therefore, Claim 2(b) must be dismissed
with prejudice.
Second, in Claim 6, Plaintiff alleges obstruction of justice and forgery. Plaintiff did
not identify any facts particular to this claim. Forgery is a criminal charge under A.R.S.
§ 13-2002. And obstruction of justice is a criminal charge under A.R.S. § 13-2409. Arizona
has never recognized forgery or obstruction of justice as independent torts that can be
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brought by a private individual. Arellano v. Primerica Life Ins. Co., 332 P.3d 597, 604,
235 Ariz. 371, 378 (Ct. App. 2014) (addressing forgery); Liberti v. City of Scottsdale, No.
1 CA-CV 22-0599, 2023 WL 4078539, at *2 (Ariz. Ct. App. June 20, 2023) (addressing
obstruction of justice). Therefore, Claim 6 must be dismissed with prejudice.
Claim 5
Plaintiff alleges that Defendants violated Arizona laws on retention of legal
documents. However, what she alleges is that there is no record of one or more of the arrest
warrants issued by Arizona state court judges and that her criminal case records were
“removed.” The only Defendants remaining in this case work, or worked, for the Pima
County Attorney’s Office. These Defendants are not alleged to have failed to comply with
legal requirements for the retention of documents. The factual allegations connected to
Claim 5 are based on failures by Pima County Superior Court or Pima County Justice
Court. Neither the courts nor any of their employees remain as defendants in this case.
Therefore, Claim 5 should be dismissed with prejudice.
Claims 2(a), 3, and 4
Plaintiff alleges: a Fourteenth Amendment violation based on deprivation of liberty
and false imprisonment (Claim 2(a)); intentional infliction of emotional distress (Claim 3);
and libel and slander (Claim 4). Plaintiff states that Claim 2’s constitutional claim is
premised on her being detained on falsified arrest warrants and prosecuted in a falsified
criminal case. Plaintiff states that Claim 3, similarly, is based on her wrongful arrest and
incarceration. And Plaintiff states that Claim 4’s defamation is premised on the existence
of false Florida and Arizona records of her arrest and criminal conviction.
Success on any one of these claims necessarily would imply the invalidity of
Plaintiff’s conviction. See Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (finding
that “wrongful arrest, malicious prosecution, and a conspiracy among Los Angeles officials
to bring false charges against Guerrero could not have occurred unless he were innocent of
the crimes.”). In fact, Petitioner seeks the voiding of all criminal records as one form of
relief on these claims. Monetary damages (with respect to the state court prosecution) and
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the voiding of Plaintiff’s criminal record, would require proving that Plaintiff’s conviction
is invalid.
A claim for damages cannot be brought under 42 U.S.C. § 1983 if "a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,"
unless the plaintiff demonstrates that the conviction or sentence previously has been
reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). A state criminal conviction may be challenged only within a 28 U.S.C. § 2254
habeas proceeding. Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973); Appolon v. The,
No. CV 17-00205-TUC-JGZ, 2018 WL 10323368, at *4 (D. Ariz. Feb. 12, 2018). Plaintiff
has not alleged that her state court conviction already has been invalidated; rather, her
request for its reversal signals the opposite. Therefore, her § 1983 claim for false
imprisonment and a deprivation of liberty without due process, which is based on her
allegations of false warrants and false criminal charges, must be dismissed. See Smithart v.
Towery, 79 F.3d 951, 952 (9th Cir. 1996) (finding Heck barred claim that the arrest lacked
probable cause, and the defendants had brought unfounded charges against him); Cabrera
v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (holding that to find no
probable cause for arrest would “necessarily imply” that his conviction was invalid),
disapproved on other grounds by Shalabi v. City of Fontana, 489 P.3d 714, 11 Cal. 5th 842
(2021); Ogunsalu v. San Diego Unified Sch. Dist., 759 F. App'x 642, 644 (9th Cir. 2019)
(finding Heck barred Fourth Amendment claims related to an arrest and prosecution
because neither the arrest warrant or conviction had been invalidated); Reyna v. City of
Santa Cruz, No. 23-CV-03121-WHA, 2024 WL 3747376, at *6-7 (N.D. Cal. Aug. 9, 2024)
(finding that an attack on an arrest warrant would undermine the validity of the plaintiff’s
no contest plea and the legality of her detention and was, therefore, barred by Heck).
Similarly, Arizona state courts hold that civil claims under state law, that imply the
invalidity of a criminal conviction that has not been invalidated, are barred in the same
manner that Heck prohibits § 1983 claims. Hill v. McCowan, No. 1 CA-CV 19-0676, 2020
WL 5423090, at *2 (Ariz. Ct. App. Sept. 10, 2020) (rejecting claims of malpractice, breach
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of fiduciary duty, and due process because they relied on “principles dependent on
favorable termination of the underlying criminal proceedings”); Edgar v. State, No. 1 CA-
CV 18-0695, 2019 WL 6608753, at *2 (Ariz. Ct. App. Dec. 5, 2019) (barring a damages
claim for breach of a plea agreement) (citing Heck, 512 U.S. at 484-87); Glaze v. Larsen,
83 P.3d 26, 32-33, 207 Ariz. 26, 32-33 (2004); Templar v. Moody, No. 1 CA-CV-12-0001,
2012 WL 5333582, at *2 (Ariz. Ct. App. Oct. 30, 2012) (finding all claims collaterally
attacking convictions were properly dismissed) (citing Heck, 512 U.S. at 484-86). This
Court has dismissed Arizona state law claims on this ground. See Sullivan v. City of
Phoenix, No. CV 11-01427-PHX-DGC, 2012 WL 2285425, at *2 (D. Ariz. June 18, 2012)
(finding that Arizona would apply a Heck bar to state law claims); Dominguez v. Shaw,
No. CV 10-01173-PHX-FJM, 2011 WL 6297971, at *4 (D. Ariz. Dec. 16, 2011) (noting
that allowing state law claims that attack the validity of a state conviction would be
nonsensical when barring federal claims for the same conduct).
The Court is reviewing two state law tort claims. First, intentional infliction of
emotional distress requires extreme and outrageous conduct, Citizen Publ’g Co. v. Miller,
210 Ariz. 513, 517, 115 P.3d 107, 111 (2005), and the conduct identified by Plaintiff is the
wrongful arrest and prosecution of her. To meet this standard for this type of claim, which
requires acts “‘so outrageous in character and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a
civilized community,’” Mintz v. Bell Atl. Sys. Leasing Intern., Inc., 905 P.2d 559, 563, 183
Ariz. 550, 554 (Ct. App. 1995) (quoting Cluff v. Farmers Ins. Exch., 460 P.2d 666, 668, 10
Ariz. App. 560, 562 (1969)), Plaintiff necessarily would have to prove that the prosecution
of her was entirely unfounded, and her conviction was invalid. Second, the defamation
claim would require Plaintiff to prove that her arrest and conviction records, and the facts
upon which they were based, are false and invalid. See Godbehere v. Phoenix Newspapers,
Inc., 783 P.2d 781, 787, 162 Ariz. 335, 341 (1989); Read v. Phoenix Newspapers, Inc., 819
P.2d 939, 941, 169 Ariz. 353, 355 (1991) (“Substantial truth is an absolute defense to a
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defamation action in Arizona.”). Therefore, Plaintiff’s state law tort claims must be
dismissed.
To the extent Plaintiff seeks the voiding of her criminal conviction and records, that
request also is barred by the "Rooker-Feldman" doctrine, which prohibits a federal district
court from exercising subject matter jurisdiction over a suit that is a de facto appeal from
a state court judgment.3 Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139-40 (9th Cir. 2004)
(quoting Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)); Bianchi v. Rylaarsdam, 334
F.3d 895, 901 (9th Cir. 2003).
CONCLUSION AND RECOMMENDATION
When a court dismisses a complaint for failure to state a claim, it "should grant leave
to amend even if no request to amend the pleading was made, unless it determines that the
pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss &
Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990). As found above,
Plaintiff cannot cure the defects as to Claims 1, 2(b), 5, and 6. Therefore, the Court finds
these claims should be dismissed with prejudice and amendment denied.
The Court now reviews amendment as to Claims 2(a), 3, and 4. One basis to deny
amendment is when the plaintiff has repeatedly failed “to cure deficiencies by amendments
previously allowed.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir.
2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Here, Plaintiff has amended
only one time, not multiple times. However, “where the plaintiff has previously been
granted leave to amend . . . ‘[t]he district court's discretion to deny leave to amend is
particularly broad.’” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir.
2009), as amended (Feb. 10, 2009) (quoting In re Read-Rite Corp., 335 F.3d 843, 845 (9th
3 As addressed in the Court’s prior Report and Recommendation (Doc. 13), claims
against the state court prosecutors are, for the most part, also barred by prosecutorial
immunity. Imbler v. Pachtman, 424 U.S. 409, 420, 430 (1976) (holding prosecutors are
absolutely immune from damages suits under § 1983 when their "activities were intimately
associated with the judicial phase of the criminal process."); Kalina v. Fletcher, 522 U.S.
118, 131 (1997). Because the Court finds all Plaintiff’s claims are subject to dismissal on
other grounds, the Court did not analyze the application of prosecutorial immunity to the
allegations in the Amended Complaint.
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Cir. 2003)). As to the remaining Defendants, Plaintiff included the same general factual
allegations in the original Complaint and the Amended Complaint. Although she added a
bit more specificity regarding the actions of each individual Defendant, all the allegations
in both complaints were tied to Plaintiff’s criminal prosecution. In both pleadings, Plaintiff
failed to state a claim for relief because the allegations did not involve these Defendants,
the claims were not cognizable in a private civil action, or the claims were barred by Heck.
Plaintiff already has been given an opportunity to amend, after the Court provided notice
of the deficiencies, and has been unable to state a claim against these Defendants. Based
on Plaintiff’s factual allegations, the Court is unable to identify any viable legal claim.
Therefore, the Court finds that further amendment is not warranted. See Allen v. City of
Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990). Claims 2(a), 3, and 4 also should be
dismissed with prejudice.
Based on the foregoing, the Magistrate Judge recommends that the District Court
enter an order dismissing the Amended Complaint with prejudice for failure to state a
claim. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file
written objections within fourteen days of being served with a copy of the Report and
Recommendation. A party may respond to the other party's objections within fourteen days.
No reply brief shall be filed on objections unless leave is granted by the District Court. If
objections are not timely filed, they may be deemed waived.
Dated this 29th day of January, 2026.
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