Kelly v. Santa Cruz, County of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
George Alan Kelly,
Plaintiff,
v.
County of Santa Cruz, et al.,
Defendants.
No. CV-25-00040-TUC-RM
ORDER
Pending before the Court are Motions to Dismiss under Federal Rule of Civil
Procedure 12(b)(6) filed by Defendants Santa Cruz County Sheriff David Hathaway,
Detective Jorge Ainza, Detective Mario Barba, Detective Joseph Bunting, Deputy
Cristobal Castaneda, Sergeant Alfonso Flores, Sergeant Omar Rodriguez, Sergeant Lluvia
Garcia, Commander John Marquez, and Deputy Rafael Lopez (“Officer Defendants”)
(Doc. 28); and Defendants Santa Cruz County and Santa Cruz County Attorney George
Silva (Doc. 30). Also pending is Plaintiff’s Motion to Amend Response to Motions to
Dismiss. (Doc. 40.)
I. Plaintiff’s Complaint
Plaintiff alleges the following in his Complaint. In approximately 2002, Plaintiff
and his wife purchased a ranch located in Santa Cruz County, approximately two miles
from the United States-Mexico border. (Doc. 1 at 7 ¶ 29.) They built a home on the
property and moved there in 2009. (Id.) The border wall south of Nogales, Arizona stops
at Plaintiff’s ranch, making the ranch a focal point for illegal immigrants and drug
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traffickers. (Id. at 6-7 ¶ 24.) In recent years, an increasing number of drug mules have
crossed over Plaintiff’s ranch, traveling in large groups with guns. (Id. at 8 ¶ 32.) Plaintiff
began carrying a handgun and keeping a rifle in his home to protect himself and his wife.
(Id. at 8-9 ¶ 34.)
On January 30, 2023, Plaintiff and his wife were on their property when they saw a
group of men with large backpacks and guns. (Id. at 9 ¶¶ 36-37.) While they were inside
their home, Plaintiff heard a gunshot outside. (Id. at 9 ¶ 37.) Plaintiff told his wife to get
down and then took his rifle to the back patio and fired approximately eight shots into the
air to scare the group off his property. (Id. at 9 ¶¶ 37-38.) Plaintiff then called 911 and the
Border Patrol. (Id. at 9-10 ¶ 39.) A Border Patrol agent and four deputies from the Santa
Cruz County sheriff’s department arrived and walked the property, along with Plaintiff and
his dogs. (Id.) They did not see anyone on the property, and the officers left. (Id.) Several
hours later, Plaintiff’s dogs alerted to something on the property, and Plaintiff discovered
the deceased body of Mr. Buitimea. (Id. at 10 ¶¶ 40-41.) The body was located in an area
that Plaintiff and the officers had walked through earlier without seeing anything. (Id. at
9-10 ¶ 39.) Mr. Buitimea was dressed in camouflage and had a radio; an empty, unzipped
backpack that was pulled over his head; and an empty, unzipped fanny pack. (Id. at 10 ¶
42.) Upon finding the body, Plaintiff called 911 and the Border Patrol. (Id. at 10 ¶ 43.)
Santa Cruz County attorneys and sheriff deputies arrived and began to question Plaintiff
and his wife. (Id. at 10-11 ¶¶ 43-46.) Plaintiff told the deputies what he had seen earlier
in the day and about firing shots from his rifle into the air from his back patio. (Id. at 10 ¶
45.) Plaintiff’s wife told deputies the same version of events. (Id. at 11 ¶ 46.) Within
minutes, the deputies arrested Plaintiff for first-degree murder. (Id. at 11 ¶ 47.) He was
handcuffed, taken to the sheriff’s department, and booked. (Id. at 11 ¶¶ 47-48.)
Plaintiff was held in jail for 23 days, until he could pay a $1 million bond. (Id. at
14-15 ¶¶ 61-62.) In jail, he was placed in general population “despite the obvious dangers
and repeated threats to his life.” (Id. at 14-15 ¶ 61.) He was denied necessary medication
and, when given medication, was denied water with which to swallow the medication. (Id.)
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Despite a severe back condition, he was denied a mattress and pillow. (Id.) When he
complained about the conditions of his confinement, detention officers ignored his
complaints and laughed at him. (Id.) Detention officers told him to put his complaints in
writing and, when he did so, tore up the written complaint in front of him. (Id.) When
Plaintiff was eventually released, he was released without his clothing in freezing
temperatures. (Id.) Commander John Marquez was the detention officer in charge of
Plaintiff’s treatment in jail. (Id.)
On February 2, 2023, Plaintiff was formally charged with first-degree murder. (Id.
at 12 ¶ 52.) The complaint was changed to second-degree murder on or about February
23, 2023. (Id.) Sheriff Hathaway publicly labeled Plaintiff as a racist, extremist vigilante.
(Id. at 15 ¶ 63.)
At a probable cause hearing on February 24, 2023, County Attorney Kim Hunley
knowingly used fabricated evidence and perjured testimony from “a supposed eyewitness”
identified as D.R.R. (Id. at 18-19 ¶¶ 66-68.) D.R.R.’s testimony “was so ridiculous that it
was obviously false.” (Id. at 18 ¶ 66.) At Plaintiff’s trial, held from March 22, 2024, to
April 19, 2024, the prosecution again presented D.R.R.’s fabricated testimony. (Id. at 19
¶ 73.) The jury was unable to reach a verdict, resulting in a mistrial. (Id.) Following the
mistrial, Defendants requested the case be dismissed without prejudice, but the court
dismissed it with prejudice in the interest of justice on July 9, 2024. (Id. at 20 ¶ 74.)
Plaintiff alleges that all named Defendants were involved in the decision to arrest
him, and that Defendants never had probable cause to arrest, detain, charge, or prosecute
him for first- or second-degree murder. (Id. at 11-14 ¶¶ 50, 52-59.) Plaintiff contends that
the prosecution was based on Defendants’ bias against ranchers who did not accept the
Sheriff’s view on immigration. (Id. at 14 ¶ 60.) Specifically, Santa Cruz County Sheriff
Hathaway denied that there was a border crisis and decried ranchers who claimed there
was. (Id. at 6 ¶ 22.) Defendants prosecuted Plaintiff to create an example for other ranchers
who were complaining about the illegal immigration and drug trafficking crisis they were
experiencing on their properties. (Id. at 14 ¶ 60.)
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In Count One of his Complaint, Plaintiff asserts claims under 42 U.S.C. § 1983
against all Defendants for false arrest, unlawful seizure, and unlawful prosecution. (Id. at
21 ¶ 78-82.) In Count Two, Plaintiff asserts a claim against all Defendants under § 1983
for conspiracy to violate Plaintiff’s right to be free from false arrest, unlawful seizure, and
unlawful prosecution. (Id. at 22 ¶¶ 83-88.) In Count Three, Plaintiff asserts a claim for
violation of his due process right to be free from punishment as a pretrial detainee. (Id. at
23 ¶¶ 89-93.) In Count Four, Plaintiff asserts a municipal liability claim against Santa Cruz
County pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978). (Id. at
24 ¶¶ 94-97.) Plaintiff seeks compensatory and exemplary damages. (Id. at 25-26 ¶¶ 99-
101.)
II. Motion to Amend Response
After Defendants’ Motions to Dismiss were fully briefed, Plaintiff moved for leave
to amend his Response to the Motions to Dismiss, purportedly to correct “some factual
inaccuracies and some typographical errors.” (Doc. 40.) In the Motion to Amend, Plaintiff
states that he “reached out to Defendants to see if they oppose the motion” but that he did
not receive a response. (Id.) Even though this Court has specifically notified Plaintiff of
the correct procedures for filing proposed documents under Section II(H) of the District of
Arizona Case Management/Electronic Case Filing Administrative Policies and Procedures
Manual (“CM/ECF Manual”) (see Doc. 37), Plaintiff filed his Amended Response
concurrently with the Motion to Amend (Doc. 41), instead of lodging it as a proposed
document as required by Section II(H) of the CM/ECF Manual. Plaintiff did not file a
redlined copy of the Amended Response, nor does he identify the changes made.
Defendants filed Responses in opposition to Plaintiff’s Motion to Amend, averring
that they never received any communication about the Motion to Amend, and arguing that
the Amended Response is improper and goes far beyond fixing minor errors, instead
altering facts underlying the Rule 12(b)(6) briefing and adding new allegations. (Docs. 42,
43.) Plaintiff did not file a reply in support of the Motion to Amend, and the time for doing
so has expired.
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Plaintiff’s Amended Response includes numerous alterations to factual allegations
contained within Plaintiff’s Complaint and his original Response. For example, the
Amended Response adds a factual allegation that a member of the group that Plaintiff saw
on his property turned a rifle on Plaintiff before Plaintiff fired shots into the air. (Compare
Doc. 35 at 5, with Doc. 41 at 5.) The Complaint does not include this allegation. (See Doc.
1.) The Amended Response also adds an allegation that the group continued across
Plaintiff’s property toward a barn after Plaintiff fired shots into the air. (Compare Doc. 35
at 5, with Doc. 41 at 5.) Again, the Complaint does not include this allegation. (See Doc.
1.) The Amended Response deletes the allegation that Plaintiff told deputies about using
a rifle to fire into the air from his back patio; this allegation appears in Plaintiff’s Complaint
and the original Response. (Compare Doc. 1 at 10 ¶ 45, and Doc. 35 at 6, with Doc. 41 at
6.) The Amended Response adds an allegation that Detective Ainza made false statements
in Plaintiff’s booking form, even though the Complaint does not include this allegation.
(Compare Doc. 1, and Doc. 35 at 7, with Doc. 41 at 7.) Furthermore, the Amended
Response includes additional allegations regarding testimony at Plaintiff’s probable cause
hearing. (Compare Doc. 35 at 10, with Doc. 41 at 9-10.)
Plaintiff has not established why he should be allowed to amend his Response—
after Defendants’ Motions to Dismiss had already been fully briefed—to include factual
allegations different than those that appear in the Complaint. The Court will accordingly
deny Plaintiff’s Motion to Amend. Because Plaintiff’s Amended Response was filed
without leave of Court and in violation of Section II(H) of the CM/ECF Manual, the Court
will strike the Amended Response from the docket. See LRCiv 7.2(m)(1).
III. Motions to Dismiss
Defendants ask the Court to dismiss Plaintiff’s Complaint for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). (Docs. 28, 30.)
A. Legal Standard
Dismissal of a complaint, or any claim within it, for failure to state a claim under
Rule 12(b)(6) may be based on either the “lack of a cognizable legal theory or the absence
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of sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks
omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. While a complaint need not include “detailed factual
allegations,” it must contain more than labels, conclusions, “and a formulaic recitation of
the elements of a cause of action.” Twombly, 550 U.S. at 555.
In evaluating a Rule 12(b)(6) motion to dismiss, the court must take as true all well-
pleaded factual allegations of the complaint and construe them in the light most favorable
to the nonmovant. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However,
the court need not accept as true legal conclusions that are couched as factual allegations.
Iqbal, 556 U.S. at 678.
A court generally cannot consider evidence outside the pleadings in ruling on a Rule
12(b)(6) motion, but the Court may consider “certain materials—documents attached to
the complaint, documents incorporated by reference in the complaint, or matters of judicial
notice—without converting the motion to dismiss into a motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).
B. Discussion
The Officer Defendants argue that Plaintiff’s § 1983 claims for false arrest, unlawful
imprisonment, unlawful prosecution, and conspiracy are barred by the doctrine of collateral
estoppel because the issue of probable cause to charge and hold Plaintiff was litigated at
the February 24, 2023 probable cause hearing in state court. (Doc. 28 at 1-2. 10-14.) The
Officer Defendants further argue that, even if the state-court probable cause finding is not
given preclusive effect, there was probable cause for Plaintiff’s arrest and prosecution, and
the Officer Defendants are entitled to qualified immunity. (Id. at 2, 14-17.) Commander
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Marquez argues that the conditions of confinement claim asserted against him must be
dismissed because Plaintiff does not allege that he personally participated in the challenged
conduct, acted with deliberate indifference, or disregarded a substantial risk of serious
harm. (Id. at 17.)
County Attorney Silva argues that the claims against him must be dismissed because
Plaintiff’s Complaint does not allege that he personally participated in the purported
constitutional violations, and because he is entitled to absolute prosecutorial immunity.
(Doc. 30 at 8-10.) Silva and Santa Cruz County argue that Plaintiff’s Complaint fails to
state a claim for malicious prosecution because Plaintiff cannot show a lack of probable
cause and he does not plead facts showing malice or a purpose to deprive him of a federal
constitutional right. (Id. at 10-14.) Silva and Santa Cruz County further argue that
Plaintiff’s conspiracy claim fails for lack of an underlying § 1983 violation, for lack of
class-based discriminatory animus, and due to the intracorporate conspiracy doctrine. (Id.
at 14-15.) Finally, Santa Cruz County argues that Plaintiff fails to state a Monell claim
because the Complaint includes only conclusory assertions of a custom or policy. (Id. at
15-16.)
1. Probable Cause
To state a claim on which relief can be granted under § 1983, Plaintiff must plausibly
allege that Defendants committed the challenged conduct while acting under color of state
law, and that the conduct deprived Plaintiff of a constitutional right. Balistreri v. Pacifica
Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To state a constitutional claim for false
arrest, Plaintiff’s factual allegations must plausibly show that Defendants were personally
involved in the arrest or decision to arrest Plaintiff, and the arrest was without probable
cause. Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998); see also
Lacey v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012). To state a constitutional claim
for malicious prosecution, Plaintiff’s factual allegations must plausibly establish the state
common law elements of malicious prosecution: (1) “a criminal prosecution,” (2) “that
terminates in favor of [the] plaintiff,” (3) “with defendants as prosecutors,” (4) “actuated
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by malice,” (5) without probable cause[,]” and (6) “causing damages.” Cullison v. City of
Peoria, 584 P.2d 1156, 1160 (Ariz. 1978); see also Mills v. City of Covina, 921 F.3d 1161,
1169 (9th Cir. 2019) (“Federal courts rely on state common law for elements of malicious
prosecution.”). Furthermore, Plaintiff must plausibly allege that Defendants prosecuted
him “for the purpose of denying [him] equal protection or another specific constitutional
right.” Lacey, 693 F.3d at 919.
The existence of probable cause is an absolute defense to false arrest, false
imprisonment, and malicious prosecution claims. Yousefian v. City of Glendale, 779 F.3d
1010, 1014 (9th Cir. 2015) (false arrest and malicious prosecution); Cota v. Penzone, No.
CV-18-02535-PHX-RM, 2019 WL 415703, at *5 (D. Ariz. Feb. 1, 2019) (false arrest and
false imprisonment). Absent an underlying constitutional violation, a plaintiff cannot
plausibly allege a conspiracy claim under § 1983 or a claim for municipal liability under
Monell. See Lacey, 693 F.3d at 935 (“Conspiracy is not itself a constitutional tort under §
1983,” and it “does not enlarge the nature of the claims asserted by the plaintiff, as there
must always be an underlying constitutional violation”); City of Los Angeles v. Heller, 475
U.S. 796, 799 (1986) (no Monell liability absent an underlying constitutional injury); Hart
v. Parks, 450 F.3d 1059, 1069, 1071 (9th Cir. 2006) (§ 1983 conspiracy claims and Monell
claims fail absent underlying constitutional violation). Accordingly, the existence of
probable cause for Plaintiff’s arrest and prosecution is fatal to Counts One, Two, and Four
of the Complaint.
a. Issue Preclusion
The state court twice found probable cause for Plaintiff’s criminal prosecution, first
during Plaintiff’s February 24, 2023 preliminary hearing (Doc. 28-2; Doc. 30-2 at 2-219),
and then again during a May 17, 2023 review of the preliminary hearing probable cause
finding (Doc. 30-2 at 220 (non-electronically filed video recording).) The state court found
probable cause for Plaintiff’s arrest during an August 11, 2023 hearing on a suppression
motion. (Doc. 30-2 at 221 (non-electronically filed video recording).)1 Defendants argue
1 The Court takes judicial notice of the existence of the state court’s rulings. See Fed. R.
Evid. 201; Freeman v. Ethicon, Inc., 619 F. Supp. 3d 998, 1002 (C.D. Cal. 2022) (court
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that the state-court probable cause findings are entitled to preclusive effect in this action.
(Doc. 28 at 13-14; Doc. 30 at 12-13.) Plaintiff contends that the state-court findings are
“prima facie evidence of probable cause” but “not conclusive,” and that they do not
preclude Plaintiff’s claims because they were “based upon known fabricated evidence and
perjury,” namely purportedly false testimony by eyewitness D.R.R. (Doc. 35 at 13-15.)
Plaintiff further argues that issue preclusion does not apply because “there was additional
evidence at the preliminary hearing from when the arrest was made.” (Id. at 15.)
The doctrine of “[i]ssue preclusion, also known as collateral estoppel, bars the
relitigation of issues actually adjudicated in previous litigation.” Janjua v. Neufeld, 933
F.3d 1061, 1065 (9th Cir. 2019) (internal quotation marks omitted). State law governs “the
application of collateral estoppel to a state court judgment in a federal civil rights action.”
Mills, 921 F.3d at 1169; see also Allen v. McCurry, 449 U.S. 90, 96, 105 (1980) (federal
courts “give preclusive effect to state-court judgments whenever the courts of the State
from which the judgments emerged would do so” (citing 28 U.S.C. § 1738)). In Arizona,
issue preclusion applies when (1) an issue or fact “was actually litigated in a previous suit,”
(2) “a final judgment was entered,” (3) “the party against whom the doctrine is to be
invoked had a full opportunity to litigate the matter and actually did litigate it,” and (4) the
issue or fact “was essential to the prior judgment.” Crosby-Garbotz v. Fell in re Pima
Cnty., 434 P.3d 143, 146 (Ariz. 2019).2 The parties do not cite, and this Court has not
located, any Arizona Supreme Court or Arizona Court of Appeals decision addressing
whether a probable cause finding made at a criminal preliminary hearing is entitled to
preclusive effect in a later civil action.
may take judicial notice of public records from other proceedings in determining the
applicability of issue preclusion).
2 In their Reply, Santa Cruz County and Silva rely on Martinez v. United States, 997 F.3d
867 (9th Cir. 2021), for the contention that “[a] finding of probable cause at a preliminary
hearing is only reviewable in a subsequent civil proceeding when the plaintiff argues that
the officers engaged in judicial deception.” (Doc. 38 at 3.) Defendants did not raise this
specific contention or cite to Martinez in their Motions to Dismiss, and the argument
accordingly has not been fully or adequately briefed. New issues generally cannot be raised
for the first time in a reply brief. Coos Cnty. Bd. of Cnty. Comm’rs v. Kempthorne, 531
F.3d 792, 812 n.16 (9th Cir. 2008). Furthermore, Martinez did not specifically analyze or
address Arizona law on issue preclusion.
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Plaintiff relies on Wige v. City of Los Angeles to argue that issue preclusion is
inapplicable if additional evidence not known at the time of arrest was presented during
the preliminary hearing, or if the preliminary hearing probable cause finding was based on
fabricated evidence. (Doc. 35 at 15.) In Wige, the Ninth Circuit found that the identity-of-
issues requirement of issue preclusion under California law is generally satisfied when a
court is “asked to give preclusive effect to preliminary hearing probable cause findings in
subsequent civil actions for false arrest and malicious prosecution.” 713 F.3d 1183, 1185
(9th Cir. 2013). However, the issue of probable cause litigated during a preliminary
hearing is not identical to the issue of probable cause for purposes of a false arrest claim if
additional evidence unknown to officers at the time of the arrest was presented during the
preliminary hearing. Id. at 1186. Furthermore, the identity-of-issues requirement is not
met if fabricated evidence was presented at the preliminary hearing. Id.
Although Wige applied California law on issue preclusion, the limitations expressed
in Wige are likely consistent with Arizona law. Cf. Reams v. City of Tucson, 701 P.2d 598,
601-02 (Ariz. App. 1985) (finding evidence of an indictment irrelevant to issue of whether
probable cause existed for the plaintiff’s arrest, because a false arrest claim hinges upon
“the facts as they existed at the time of the arrest,” whereas an indictment may be predicated
upon evidence developed later); see also Restatement (2d) of Torts § 663(2) & cmt. to §
663(2) (the commitment of an accused to stand trial by a magistrate upon a preliminary
hearing “is evidence that the person initiating the proceedings had probable cause,” but the
court should consider whether false testimony was presented to or material evidence
withheld from the magistrate); Webster v. Culbertson, 761 P.2d 1063, 1066 (Ariz. 1988)
(“In the absence of law to the contrary, Arizona follows the Restatement.”). But even if
the issue of probable cause for Plaintiff’s arrest and prosecution was not actually litigated
during Plaintiff’s preliminary hearing for purposes of issue preclusion, due to the
presentation of allegedly false testimony by D.R.R. and the presentation of additional
evidence not known at the time of the arrest, Plaintiff fails to address the additional
probable cause findings made during his state-court criminal proceedings. Specifically, in
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reviewing the preliminary hearing probable cause finding, the state trial court found
probable cause for Plaintiff’s prosecution even when disregarding D.R.R.’s testimony.
(Doc. 30-2 at 220 (non-electronically filed video recording).) Furthermore, in ruling on
Plaintiff’s suppression motion, the state trial court found probable cause for Plaintiff’s
arrest based solely on the information known to officers at the time of the arrest. (Doc. 30-
2 at 221 (non-electronically filed video recording).) Plaintiff was represented by counsel
during the state criminal proceedings, and he had a full and fair opportunity to litigate the
issue of probable cause for his arrest and prosecution.
Accordingly, it appears that at least some of the requirements for the application of
issue preclusion under Arizona law are satisfied. However, Defendants do not adequately
address all of the Arizona law requirements for issue preclusion. Specifically, Defendants
do not adequately address whether Plaintiff’s criminal proceedings—which terminated
upon motion of the prosecutor—resulted in a final judgment for purposes of issue
preclusion under Arizona law, nor do Defendants adequately address whether the probable
cause findings were essential to the criminal judgment. In State v. Greenberg, the Arizona
Court of Appeals held that “[a]n interlocutory suppression order is not final for purposes
of collateral estoppel.” 343 P.3d 462, 469 (Ariz. App. 2015); see also State v. Young, 552
P.3d 527, 534 (Ariz. App. 2024) (same). The court further found that a criminal case that
was dismissed without prejudice on motion of the prosecution did not result in a judgment
to which collateral estoppel could attach, because a judgment under Arizona law is defined
as a court’s adjudication, based on a jury verdict, court verdict, or plea, that a defendant is
guilty or not guilty. Greenberg, 343 P.3d at 465, 469-70; see also Young, 552 P.3d at 532,
534 (same); Ariz. R. Crim. P. 26.1(b) (“‘Judgment’ means the court’s adjudication that the
defendant is guilty or not guilty based on the jury’s or the court’s verdict, or the defendant’s
plea”). Although Plaintiff’s criminal case was dismissed with prejudice rather than without
prejudice, it was similarly dismissed on the prosecution’s motion, and the dismissal was
not based on an adjudication that Plaintiff was guilty or not guilty.
Because Defendants have not conclusively shown that all requirements of issue
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preclusion under Arizona law are satisfied, the Court declines to dismiss Plaintiff’s claims
on the grounds that the state court’s probable cause findings are entitled to preclusive
effect.3
b. Sufficiency of Allegations Regarding Lack of Probable Cause
Even if the state-court findings of probable cause are not entitled to preclusive
effect, Plaintiff’s Complaint does not plausibly allege a lack of probable cause for his arrest
and prosecution. Probable cause “is a fluid concept” that “deals with probabilities and
depends on the totality of the circumstances.” District of Columbia v. Wesby, 583 U.S. 48,
57 (2018) (internal quotation marks omitted). It “is not a high bar,” and “requires only a
probability or substantial chance of criminal activity[.]” Id. (internal quotation marks
omitted).
“Probable cause to arrest exists when officers have knowledge or reasonably
trustworthy information sufficient to lead a person of reasonable caution to believe that an
offense has been or is being committed by the person being arrested.” United States v.
Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). The arresting officer’s “subjective reason for
making the arrest need not be the criminal offense as to which the known facts provide
probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Id. at 153. “Because
probable cause is an objective standard, an arrest is lawful if the officer had probable cause
to arrest for any offense, not just the offense cited at the time of arrest or booking.” Wesby,
583 U.S. at 54 n.2.
Plaintiff contends that Defendants needed to “have facts and circumstances within
their knowledge on all of” the elements of first-degree murder, including premeditation, in
order for his arrest to be supported by probable cause. (Doc. 35 at 14.) But Defendants
merely needed to have probable cause to arrest Plaintiff for any offense. See Wesby, 583
U.S. at 54 n.2. Plaintiff’s Complaint alleges that, at the time of his arrest, a dead body had
been discovered on his property, and he had told officers that, earlier in the day, he had
fired multiple shots from his rifle in order to scare a group of individuals he had observed
3 This holding does not preclude Defendants from re-asserting issue preclusion as a basis
for dismissing claims asserted in any amended complaint.
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on his property. (Doc. 1 at 10-11 ¶¶ 40-41, 43-47.) Based on these circumstances, officers
had probable cause to arrest Plaintiff for second-degree murder, or at least for manslaughter
or negligent homicide. See A.R.S. § 13-1104(A) (second-degree murder); § 13-1103(A)
(manslaughter); § 13-1102(A) (negligent homicide).
“In the context of malicious prosecution, probable cause is defined as a reasonable
ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent
man in believing the accused is guilty of the offense.” Gonzales v. City of Phoenix, 52
P.3d 184, 187 (Ariz. 2002) (internal quotation marks omitted). “[T]he mere fact a
prosecution was unsuccessful does not mean it was not supported by probable cause.”
Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). According to the
allegations of Plaintiff’s Complaint, an eyewitness claimed to have seen Plaintiff shoot the
decedent in the chest while the decedent was resting on a dirt road. (Doc. 1 at 18 ¶ 67.)
Furthermore, Plaintiff gave inconsistent statements to police officers when questioned
about what had occurred. (Id. at 19 ¶ 71.) These circumstances are sufficient to warrant
an ordinarily prudent individual in believing Plaintiff guilty of first- or second-degree
murder. See A.R.S. § 13-1105(A) (first-degree murder); § 13-1104(A) (second-degree
murder). Plaintiff argues that eyewitness D.R.R.’s testimony was inconsistent with
physical evidence found at the scene (Doc. 35 at 10, 15), but while these arguments could
create reasonable doubt in the minds of one or more jurors at trial, “probable cause can
well exist (and often does) even though ultimately, a jury is not persuaded that there is
proof beyond a reasonable doubt.” Yousefian, 779 F.3d at 1014.
Given the existence of probable cause for Plaintiff’s arrest and prosecution, the
Court will grant Defendants’ Motions to Dismiss with respect to Counts One, Two, and
Four of the Complaint.4
2. Conditions of Pretrial Confinement
Count Three asserts a due process claim under the Fourteenth Amendment alleging
that Plaintiff was subjected to punishment as a pretrial detainee. (Doc. 1 at 23 ¶¶ 89-93.)
4 Because the existence of probable cause is fatal to these counts, the Court declines to
address the other arguments raised by Defendants concerning these counts.
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Defendants argue that Plaintiff fails to plausibly state a claim because he does not allege
facts showing that Commander Marquez “personally participated in the alleged conduct,
acted with deliberate indifference, or disregarded a substantial risk of serious harm.” (Doc.
28 at 17.) Plaintiff does not address these arguments in his Response to Defendants’
Motions to Dismiss. (See Doc. 35.)
Plaintiffs’ Complaint challenges actions taken by unnamed detention officers at the
Santa Cruz County jail and alleges that “Commander John Marquez” was “in charge of the
treatment” that Plaintiff received while in the jail. (Doc. 1 at 14-15, 23 ¶¶ 61, 90-92.)
However, Plaintiff does not allege any specific actions taken by Commander Marquez.
“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676. Because Plaintiff does not attribute any
allegedly unconstitutional actions to any named defendants with respect to Count Three,
the Court will grant Defendants’ Motions to Dismiss with respect to that count.
3. Leave to Amend
“If a complaint is dismissed for failure to state a claim, leave to amend should be
granted unless the court determines that the allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency.” DeSoto v. Yellow Freight
Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (internal quotation marks omitted). Given the
liberal standards governing leave to amend, the Court will dismiss Plaintiff’s Complaint
without prejudice and with leave to amend.
IT IS ORDERED that Plaintiff’s Motion to Amend Response (Doc. 40) is denied.
Plaintiff’s Amended Response (Doc. 41), which was filed without leave of Court and in
violation of CM/ECF Manual § II(H), is stricken from the docket.
. . . .
. . . .
. . . .
. . . .
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IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss (Docs. 28, 30)
are granted. Plaintiff’s Complaint (Doc. 1) is dismissed with leave to amend. Plaintiff
may file an amended complaint within fourteen (14) days of the day this Order is filed. If
Plaintiff fails to file an amended complaint within fourteen days, then the Clerk of Court
shall dismiss this action with prejudice and enter judgment accordingly.
Dated this 5th day of January, 2026.
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