Peltz et al v. Metcalf et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Vernon Peltz, et al.,
Plaintiffs,
v.
D Douglas Metcalf, et al.,
Defendants.
No. CV-25-00165-TUC-SHR
ORDER
On April 10, 2025, pro se Plaintiffs Vernon Peltz, Mark Brown, and Roy Tripoloni
filed a Complaint and Request for Injunctive Relief pursuant to 42 U.S.C. § 1983 (Doc. 1).
On June 16, 2025, Defendants filed a Motion to Dismiss (Doc. 6). Plaintiffs filed a
Response and Motion to Strike (Doc. 7) and Defendants replied (Doc. 8). For the following
reasons, the Court will grant the Motion to Dismiss (Doc. 6), deny Plaintiffs’ Motion to
Strike (Doc. 7) as moot, and dismiss Plaintiffs’ Complaint with prejudice (Doc. 1).
I. Background
Plaintiffs—who “frequently use their cell phones to record” for publication “the
actions of Court personnel in the performance of their duties”—allege Defendants violated
their First Amendment and due process rights. (Doc. 1.) They allege Defendants
“conspired to prohibit Plaintiffs from using their cellphones to record in public places
within Pima County Justice Court Complex and Pima County Superior Court.” (Id. at 2.)1
1Plaintiffs solely bring First Amendment and Due Process claims (Counts One and
Two) but seek relief in the form of punitive damages and injunctive relief (erroneously
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Plaintiffs name the following Defendants in their individual and official capacities: Pima
County Superior Court Judge Douglas Metcalf; Director of Court Security at the Pima
County Superior Court Richard Tracy; Community Relations Officer at the Pima County
Superior Court Alanna Meadows; Pima County Superior Court Security Manager
Maryjane Abril; and Pima County Justice Court security guards Kevin Luckenbill,
Francisco Vasquez, and Richard Lopez. (Id. at 3.)
Specifically, Plaintiffs allege Plaintiff Brown began interviewing Plaintiff Peltz in
the lobby of the Pima County Justice Court when “three Court security officers jumped on
Plaintiff Brown and attempted to take his recording devices away.” (Id. at 6.) They further
allege Defendant Luckenbill “put his person between Plaintiff Peltz and [the] three
officers” to prevent Peltz from recording their actions, ordered Peltz to stop recording, and
threatened to arrest Peltz. (Id.) Defendant Vasquez ordered Peltz to leave the lobby “or
be arrested” and “physically began to handcuff” Peltz before Peltz managed to “escape out
the door.” (Id.)
Plaintiffs further allege on a separate occasion they attempted to audio record
“proceedings involving Lane Myers in Pima County Superior Court” but Judge Metcalf
had issued an order “broadly prohibiting all recording except through the court’s YouTube
Livestream, without holding hearings to assess individual requests.” (Id.) They allege on
March 28, 2025, Defendant Tracy barred Plaintiff Brown “from entering the courthouse
with his cell phone or any recording devices” and “Defendant Meadows informed Plaintiff
Tripoloni in an email that the prohibition extended to him as well.” (Id.)
II. Legal Standard
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), allegations
of material fact are assumed to be true and construed in the light most favorable to the
nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal
under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence
of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police
labeled Counts Three and Four).
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Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, a complaint need contain
only “enough facts to state a claim [for] relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “[C]onclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to dismiss.” Ove v. Gwinn, 264 F.3d 817,
821 (9th Cir. 2001). If the Court finds a plaintiff does not allege enough facts to support a
cognizable legal theory, the Court may dismiss the claim. SmileCare Dental Grp. v. Delta
Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996). “Dismissal without leave to
amend is improper unless it is clear, upon de novo review, that the complaint could not be
saved by any amendment.” Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir.
1991).
III. Discussion
A government official in a § 1983 action is entitled to qualified immunity from
damages for civil liability if his “conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Once a qualified-immunity defense is raised, the
plaintiff bears the burden of showing the rights allegedly violated were clearly established.
LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). An officer is not entitled to
qualified immunity if the plaintiff shows (1) the officer’s conduct violated a constitutional
right and (2) the right was clearly established at the relevant time. Sorrels v. McKee, 290
F.3d 965, 969 (9th Cir. 2002); Romero v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir. 1991).
“The relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
Among other arguments,2 Defendants raise a qualified immunity defense in their
Motion to Dismiss. (Doc. 6 at 7–10.) Specifically, they assert they are entitled to qualified
immunity because “[n]o clearly established law provides a constitutional right to record
judicial proceedings or court hearings” and “[c]ontrary to Plaintiffs’ assertions, neither the
2Because the Court finds Defendants are entitled to qualified immunity, the Court
need not address the additional arguments raised in the Motion to Dismiss.
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First Amendment nor the Fourteenth Amendment grants them an unfettered Constitutional
right to audio or video record inside courthouses or a right to a hearing.” (Id. at 9.) In
response, Plaintiffs assert they “stand united in their conviction that the Constitution
affords them the right to hold their government accountable through the act of recording,”
and Defendants’ immunity arguments are “premature, procedurally improper, and not
appropriate at the Rule 12(b) stage.” (Doc. 7.) They additionally move to strike exhibits
attached to Defendants’ Motion to Dismiss. (Id.)
Plaintiffs’ assertion qualified immunity may not be raised in a Rule 12(b)(6) motion
to dismiss is incorrect. See, e.g., Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867,
893 (9th Cir. 2022) (granting qualified immunity on motion to dismiss because
“[p]ostponing our qualified immunity decision until the summary judgment stage would
only consume additional time, expense, and judicial resources, without any realistic
possibility that the outcome would change”); Act Up!/Portland v. Bagley, 988 F.2d 868,
872 (9th Cir. 1993) (stating immunity issues should be decided long before trial).
Moreover, Plaintiffs have not met their burden of proving the violation of a
constitutional right and that the right was clearly established. Plaintiffs broadly allege they
have a “[f]undamental First Amendment right [to] use their phones to video record in
courthouses and to publish those videos,” but provide no law establishing a right to record
in courthouses without restrictions. (See Doc. 1 at 4.) As Defendants assert in their Motion,
courthouses are non-public fora, and courts may accordingly impose speech limitations so
long as they are viewpoint neutral and reasonable in light of the purpose served by the
forum. See Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002),
abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22
(2008); Chandler v. Florida, 449 U.S. 560, 582–83 (1981) (permitting states to
“experiment” in allowing or disallowing cameras during trials); see also Cornelius v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 808 (1985). Plaintiffs have failed
to show any established federal law or constitutional right underlying their claims, and
accordingly, the Court will dismiss Plaintiffs’ claims against Defendants as barred by
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qualified immunity. See Act Up!/Portland, 988 F.2d at 872 (stating the doctrine of
qualified immunity is an immunity from suit rather than a mere defense to liability).
Plaintiffs have also failed to state a claim for injunctive relief. Plaintiffs have not
specifically identified how any laws enforced by Defendants violate the First Amendment
or Due Process Clause. As stated above, Plaintiffs’ argument they have an unfettered “right
[to] use their phones to video record in courthouses” under the First Amendment is without
merit. The only assertion Plaintiffs make regarding due process is “Arizona Supreme Court
Rule 122(h) requires a judge to conduct a hearing before denying an individual’s right to
record” and Defendants in this case failed to provide such a hearing. (Doc. 1 at 8.) Rule
122(h), however, imposes no such requirement, see Ariz. S. Ct. R. 122(h), and Plaintiffs
fail to allege how each defendant violated due process, see Twombly, 550 U.S. at 555. They
have not stated a plausible claim entitling them to relief. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)
Upon de novo review, the Court finds amendment in this case would be futile given
the deficiencies outlined above. Accordingly, the Court will dismiss the Complaint with
prejudice. See Herring Networks, Inc. v. Maddow, 8 F.4th 1148, 1161 (9th Cir. 2021). The
Court will also deny Plaintiffs’ Motion to Strike (Doc. 7) as moot. Although the Court
could properly consider the documents attached to Defendants’ Motion to Dismiss because
they are judicially noticeable and their authenticity is not in question, see United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003), the Court did not need to consider the attached
documents in finding Plaintiffs did not meet their burden of proving an established
constitutional right.
IV. Conclusion
IT IS ORDERED Plaintiffs’ Complaint (Doc. 1) is DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED Plaintiffs’ Motion to Strike (Doc. 7) is DENIED
AS MOOT.
…
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IT IS FURTHER ORDERED the Clerk of Court shall close this case.
Dated this 20th day of March, 2026.
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