Cota v. Penzone

• Court: District Court, D. Arizona
• Decided: August 13, 2019
• Docket: 2:18-cv-02535
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Emily Cota, No. CV-18-02535-PHX-RM

10 Plaintiff, ORDER

11 v.

12 Paul Penzone, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants’ Motion to Dismiss. (Doc. 25.) Defendants 16 Bratt and Fortner argue that Plaintiff’s First Amended Complaint (“FAC”) (Doc. 24) fails 17 to state a cognizable claim, that relief is barred by the doctrine of qualified immunity, and 18 that the allegations against Defendant Fortner lack the factual specificity required to state 19 a claim. 20 I. Factual Background 21 Plaintiff’s FAC alleges the following:1 22 Defendants are Maricopa County Sheriff Deputies Bratt and Fortner. (Doc. 24 ¶¶ 23 29, 38.) At about 10:50 p.m. on August 30, 2016, Defendants were on patrol and initiated 24 a stop of a Ford Mustang. (Id. ¶¶ 9, 12.) Defendants ordered two female passengers to exit 25 the vehicle and asked for their names and identification. (Id. ¶ 15.) Neither woman had 26 identification and both giggled while providing Defendants their names. (Id. ¶¶ 15-16.) 27 1 At the motion-to-dismiss stage, “[a]ll allegations of material fact are taken as true and 28 construed in the light most favorable to the nonmoving party.” Silvas v. E*Trade Mrtg. Corp., 514 F.3d 1001, 1003 (9th Cir. 2008). 1 One of the women falsely identified herself to Defendants as “Emily Cota.” (Id. at 2 ¶ 19.) Deputy Bratt ran that name through the Motor Vehicle Department database but 3 found that the photograph of Emily Cota on record did not match the individual who had 4 provided that name. (Id. at ¶ 20.) The other female passenger, now known to be Tania 5 Hernandez, then falsely stated that in fact she was “Emily Cota,” and that she had “switched 6 names” with the other woman. (Id. ¶¶ 18, 21.) Ms. Hernandez stands at least five feet and 7 six inches tall and weighs at least 160 pounds, while Emily Cota is five feet and three 8 inches tall and weighs 110 pounds. (Id. ¶ 56.) Deputy Bratt asked Ms. Hernandez, who 9 continued to maintain that she was in fact “Emily Cota,” for her address. (Id. ¶ 22.) Ms. 10 Hernandez provided the address 580 W. Galveston Road, Chandler, Arizona, which did 11 not match Emily Cota’s address on file. (Id. ¶¶ 22-23.) Ms. Hernandez told Deputy Bratt 12 that the address didn’t match because she had just moved in with the other occupants of 13 the Mustang, but none of the occupants’ addresses matched the one given by Ms. 14 Hernandez. (Id. ¶¶ 24-25.) Deputy Bratt then searched Ms. Hernandez’s purse, finding state 15 identification and Social Security cards bearing the name “Tania Hernandez.” (Id. ¶¶ 26, 16 65.) 17 Despite the above-described indicia of unreliability as to Ms. Hernandez’s claim to 18 be “Emily Cota,” Defendants conducted no further investigation into Ms. Hernandez’s 19 identity. (Id. ¶ 59.) Neither Defendant searched a police computer for the name Tania 20 Hernandez, which was found on her identification and Social Security card. (Id. ¶ 67.) 21 Neither Defendant asked Ms. Hernandez why, if she was in fact “Emily Cota,” she was 22 carrying identification for a Tania Hernandez. (Id. ¶ 68.) Instead, they took Ms. 23 Hernandez’s insistence that she was “Emily Cota” at face value and conducted no further 24 investigation. (Id. ¶ 59.) 25 Defendants found marijuana in Ms. Hernandez’s possession, and subsequently 26 completed an incident report swearing that the marijuana was found in the possession of 27 “Emily Cota.” (Id. ¶ 47.) The incident report, which was authored by Deputy Bratt, falsely 28 stated that Defendants had verified Emily Cota’s identity (Id. ¶ 72.) That incident report 1 triggered a felony criminal complaint against the real Emily Cota. (Id. ¶ 73.) The report 2 included the name, date of birth, and driver’s license number of the real Emily Cota, 3 information which Deputy Bratt retrieved from his police computer. (Id. ¶ ¶ 50-55.) He did 4 not say in the report that he got this information from his computer, nor that “Emily Cota” 5 did not provide any identification. (Id. ¶ 51.) Deputy Bratt’s incident report also did not 6 state that he found identification and a Social Security card with the name “Tania 7 Hernandez” on the person purporting to be Emily Cota. (Id. ¶¶ 69-70.) 8 Based on the misstatements and omissions in the incident report, a Maricopa County 9 Judicial Officer found probable cause to issue a summons for the real “Emily Cota.” (Id. 10 ¶¶ 73-75.) The summons was directed to the address provided by Tania Hernandez, 580 11 W. Galveston Road, Chandler Arizona. (Id. ¶ 30.) The summons was returned to the 12 Maricopa County Attorney’s Office as non-deliverable, and a warrant was subsequently 13 issued for Emily Cota’s arrest. (Id. ¶¶ 31-32.) Ms. Cota was forced to employ counsel to 14 respond to the warrant and the pending criminal charges. (Id. ¶ 33.) The charges were 15 eventually dismissed without prejudice on February 7, 2018. (Id. ¶ 37.) 16 II. Procedural History 17 Plaintiff filed her Complaint on August 10, 2018. (Doc. 1.) Defendants filed a 18 Motion to Dismiss for Failure to State a Claim (Doc. 18) as well as an Answer (Doc. 17). 19 On February 01, 2019, the Court granted Defendants’ Motion to Dismiss and granted 20 Plaintiff leave to file an amended complaint. (Doc. 23.) Plaintiff filed the operative FAC 21 on February 12, 2019. (Doc. 24.) Plaintiff’s FAC alleges two causes of action under 42 22 U.S.C. § 1983. First, she alleges that Defendants, acting under color of law, violated her 23 due process rights. (Id. ¶¶ 41-84.) Second, she alleges a substantive due process violation. 24 (Id. ¶¶ 85-93.) Defendants filed the pending Motion to Dismiss on February 26, 2019. (Doc. 25 25.) Plaintiff filed a Response to Defendants’ Motion to Dismiss (Doc. 26) and Defendants 26 filed a Reply. (Doc. 27.) 27 . . . . 28 . . . . 1 III. Defendants’ Motion to Dismiss 2 Defendants move to dismiss the FAC pursuant to Federal Rule of Civil Procedure 3 12(b)(6) for failure to state a claim. (Doc. 25.) Defendants make several arguments. First, 4 they argue that Plaintiff’s claims are properly analyzed under the Fourth Amendment and 5 that Plaintiff fails to state a claim for a violation of her Fourth Amendment rights. Second, 6 they argue that Plaintiff fails to state a valid claim for a substantive due process violation. 7 Third, they argue that the allegations in the FAC mostly relate to Defendant Deputy Bratt, 8 and that the allegations against Defendant Fortner lack the requisite specificity to support 9 a claim of a constitutional violation. Finally, Defendants argue in the alternative that, even 10 if the Court finds that Plaintiff has stated a constitutional claim, that the complaint should 11 nonetheless be dismissed because Defendants are protected by qualified immunity. 12 A. Legal Standard for 12(b)(6) Motion to Dismiss 13 Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to 14 dismiss for failure “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 15 12(b)(6). A complaint may be dismissed as a matter of law either for lack of a cognizable 16 legal theory or for insufficient facts under a cognizable theory. Balistreri v. Pacifica Police 17 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To survive a Rule 12(b)(6) motion, the 18 complaint’s “[f]actual allegations must be enough to raise a right to relief above the 19 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007). 20 B. Plaintiff’s Claims are Properly Analyzed Under Fourth Amendment 21 Plaintiff alleges two counts against Defendants. (Doc. 24). First, Plaintiff alleges 22 that Defendants violated her “due process” rights under “the United States Constitution, 23 including, but not limited to, Amendments IV, V, and XIV” to be free from arrest without 24 probable cause. (Id. ¶ 79.) Second, Plaintiff alleges that Defendants violated her 25 “substantive due process” rights “to be free from arrest, the threat of arrest, or to answer 26 for criminal charges without a finding of probable cause.” (Id. ¶ 88.) Plaintiff charges that 27 Defendants’ actions were “malicious, punitive, and in reckless disregard of Plaintiff’s 28 rights” and that punitive damages should be awarded. (Id. ¶ 92-93.) 1 Plaintiff thus identifies both counts as due process violations. The Due Process 2 Clause of the Fourteenth Amendment can support “three kinds of § 1983 claims.” 3 Zinermon v. Burch, 494 U.S. 113, 125 (1990). “First, the Clause incorporates many of the 4 specific protections defined in the Bill of Rights.” Id. Among those protections are the 5 Fourth Amendment’s prohibition against unreasonable searches and seizures absent 6 probable cause. See Gerstein v. Pugh, 420 U.S. 103, 111-16, 124-25 (1975). “Second, the 7 Due Process Clause contains a substantive component that bars certain arbitrary, wrongful 8 government actions ‘regardless of the fairness of the procedures used to implement them.’” 9 Zinermon, 494 U.S. at 125 (citation omitted). Third, “procedural due process claims” 10 challenge not the “deprivation by state action of a constitutionally protected interest in ‘life, 11 liberty, or property,’” but rather the “deprivation of such an interest without due process of 12 law.” Id. (citation omitted). 13 Plaintiff’s “substantive due process” claim (“Count Two”) cannot survive as such. 14 “The protections of substantive due process have for the most part been accorded to matters 15 relating to marriage, family, procreation, and the right to bodily integrity.” Albright v. 16 Oliver, 510 U.S. 266, 272 (1994). A right “to be free from criminal prosecution except 17 upon probable cause,” in contrast, cannot support a “substantive due process” claim. Id. 18 “Where a particular Amendment ‘provides an explicit textual source of constitutional 19 protection’ against a particular source of government behavior, ‘that Amendment, not the 20 more generalized notion of ‘substantive due process,’ must be the guide for analyzing these 21 claims.’” Id. at 273 (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). 22 By virtue of its incorporation into the Fourteenth Amendment, the Fourth 23 Amendment requires the States to provide a fair and reliable determination of probable 24 cause as a condition for any significant pretrial restraint of liberty. Gerstein, 420 U.S. at 25 111-16, 124-25. A claim that a state actor deprived an individual of liberty “is cognizable 26 under § 1983 as a violation of the Fourth Amendment” when done “without probable cause 27 or other justification.” Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001). 28 Therefore, the Fourth Amendment’s guarantee of probable cause “provides an explicit 1 textual source of constitutional protection,” against the conduct alleged here, and the Court 2 will therefore analyze Plaintiff’s “substantive due process” claim under the Fourth 3 Amendment. Albright, 510 U.S. at 273. 4 Plaintiff’s other count (“Count One”) is styled as “Due Process: No Probable 5 Cause.” Plaintiff challenges Defendants’ alleged misconduct and lack of diligence in 6 investigating and reporting on the crime that led to a warrant to be issued for Plaintiff’s 7 arrest. Notwithstanding Plaintiff’s reference to “the United States Constitution, including, 8 but not limited to, Amendments IV, V, and XIV,” Plaintiff does not state a “procedural due 9 process” claim because she does not directly challenge the “constitutional adequacy” of 10 the “process” used by Maricopa County in issuing warrants. Zinermon, 494 at 125. Nor 11 does she challenge the County’s post-deprivation “process[es].” Id. Rather, she challenges 12 the alleged actions and omissions of Defendants in a particular instance, which she alleges 13 caused a warrant to be issued without probable cause. As such deprivations of liberty 14 without probable cause are readily “cognizable under § 1983 as a violation of the Fourth 15 Amendment,” the Court will analyze Plaintiff’s first count under the Fourth Amendment. 16 Dubner, 266 F.3d at 964. 17 Both counts therefore allege the same Fourth Amendment violation and effectively 18 merge. Therefore, Plaintiff’s “due process” claim in “Count One” will be construed as a 19 violation of the probable cause requirement of the Fourth Amendment and her “substantive 20 due process” claim in “Count Two” will be dismissed with prejudice. 21 C. Probable Cause for Issuance of a Warrant 22 1. Legal Standard 23 In general, a claim that an individual was wrongfully arrested pursuant to a facially 24 valid warrant cannot support a § 1983 action for a Fourth Amendment violation. See Baker 25 v. McCollan, 443 U.S. 137, 144 (1979) (holding there is no cognizable constitutional claim 26 for wrongful detention pursuant to a valid warrant). An important exception to this general 27 principle exists when a facially valid warrant is issued because an officer inserts false 28 statements, made “knowingly and intentionally, or with reckless disregard for the truth,” 1 into the warrant application or affidavit. Franks v. Delaware, 438 U.S. 154, 155 (1978). In 2 such an instance, even though a facially valid warrant is issued, a cognizable constitutional 3 claim exists against the officer who “obtain[ed the warrant] through an affidavit containing 4 false and misleading information.” Hervey v. Estes, 65 F.3d 784, 787 (1995). And just as 5 the deliberate or reckless insertion of false information into a warrant application or 6 affidavit may give rise to such a claim, so might the deliberate or reckless omission of 7 material facts. United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985), amended by 769 8 F.2d 1410 (9th Cir. 1985) (explaining that by “reporting less than the total story, an affiant 9 can manipulate the inferences a magistrate will draw. To allow a magistrate to be misled 10 in such a manner could denude the probable cause requirement of all real meaning.”) 11 To prove a § 1983 claim for a Fourth Amendment violation stemming from false or 12 omitted information in a warrant affidavit or application, a plaintiff must show not only 13 that the officer acted deliberately or with reckless disregard, but also that the false or 14 omitted statements were material to a magistrate’s finding of probable cause. KRL v. 15 Moore, 384 F.3d 1105, 1117 (9th Cir. 2004). The false statements or omissions are 16 “material” if they were “necessary to the finding of probable cause.” Franks, 438 U.S. at 17 156. Thus, to determine materiality, the plaintiff must demonstrate that “the magistrate 18 would not have issued the warrant with false information redacted, or omitted information 19 restored.” Lombardi v. City of El Cajon, 117 F.3d 1117, 1126 (9th Cir. 1997). Intent to 20 mislead the issuing court is not required. Id. at 1124. Whether the false or omitted 21 information was material to the finding of probable cause is a question reserved to the 22 court. KRL, 384 F.3d at 1117 (9th Cir. 2004) (citing Butler v. Elle, 281 F.3d 1014, 1024 23 (9th Cir. 2002)). 24 2. Discussion 25 The Court must therefore determine if probable cause could still have been found 26 with the allegedly “false information redacted,” and the allegedly “omitted information 27 restored.” Lombardi, 117 F.3d at 1126. “Probable cause exists when there is a fair 28 probability or substantial chance of criminal activity.” United States v. Patayan Soriano, 1 361 F.3d 494, 505 (9th Cir. 2004) (quoting United States v. Bishop, 264 F.3d 919, 924 (9th 2 Cir. 2001)) (internal quotation marks omitted). “It is well-settled that ‘the determination of 3 probable cause is based upon the totality of the circumstances known to officers at the time 4 of the search.’” Id. (quoting Bishop, 264 F.3d at 924). 5 Plaintiff alleges that Defendants included the “false statement” that they “verified” 6 the identity of Plaintiff on the scene. (Doc. 24 at ¶ 72.) Plaintiff also alleges that 7 Defendants’ report did not disclose that the individual claiming to be Emily Cota claimed 8 to not have identification, but that identification and a social security card bearing the name 9 “Tania Hernandez” was found in her purse. (Id. at ¶¶ 51, 69-70.) Plaintiff also alleges that 10 Defendants included Plaintiff’s name, date of birth, and drivers’ license number in 11 Defendants’ report, and that Defendants did not note that they had not verified this 12 information on the scene but had instead obtained it from their police computer. (Id. at ¶ 13 53.) Finally, Plaintiff alleges that Defendant failed to note that Emily Cota is five feet and 14 three inches tall and weighs 110 pounds, whereas the person on the scene claiming to be 15 Emily Cota is five feet and five inches tall and weighs over 160 pounds. (Id. at ¶ 56.) 16 Based on Plaintiff’s allegations, a “corrected” report would therefore state that the 17 person at the crime scene did not have identification for Emily Cota, that she admitted to 18 lying about her identity before claiming to be “Emily Cota,” that she did not match Ms. 19 Cota’s physical description, that she offered a different address than the one on file for Ms. 20 Cota, and that she was inexplicably carrying state ID and a social security card belonging 21 to another individual. The Court is convinced that no neutral magistrate would find 22 probable cause for the arrest of Plaintiff Emily Cota on this basis. The Court concludes 23 that, taking Plaintiff’s factual allegations as true and construing them “in the light most 24 favorable to the nonmoving party,” probable cause for a warrant for the arrest of Plaintiff 25 Emily Cota did not exist absent the allegedly false and omitted information. Keates v. 26 Koile, 883 F.3d 1228, 1234 (9th Cir. 2018) (quoting Silvas v. E*Trade Mortg. Corp., 514 27 F.3d 1001, 1003 (9th Cir. 2008)). 28 Defendants cite to Slade v. City of Phoenix for the proposition that probable cause 1 is not vitiated merely because further investigation would reveal that an arrestee has not 2 committed a crime. 541. P. 2d 550, 552 (Ariz. 1975). In Slade, the court found that officers 3 had probable cause to arrest the plaintiff based on a citizen’s complaint even though the 4 officer failed to first conduct an independent investigation of the complaint. Id. The court 5 in Slade reasoned that “[p]olice depend upon the information furnished by citizens, and, 6 unless the contrary appears, they should be able to depend upon the presumption that men 7 speak the truth.” Id. The court noted that in that case “there was an absence of 8 circumstances to cast doubt on the information given by the [complainant].” Id. Here, 9 unlike in Slade, the FAC alleges circumstances which substantially “cast doubt on the 10 information” provided to defendants. Id. According to the FAC, Deputies Bratt and Fortner 11 had multiple reasons to doubt Ms. Hernandez’s claim. Defendants therefore had ample 12 reason to question the presumption that Ms. Hernandez was “speak[ing] the truth” in 13 identifying herself as Emily Cota, and Slade is therefore inapposite. Id. 14 Defendants also rely heavily on Baker v. McCollan, 433 U.S. 137, 144 (1979), 15 arguing that it is controlling authority “almost directly on point with Plaintiff’s claim here.” 16 (Doc. 27 at 5.) But unlike the present case, which challenges defendants’ probable cause 17 to issue a warrant, the Baker court assumed that the plaintiff there was arrested “pursuant 18 to a warrant conforming . . . to the requirements of the Fourth Amendment.” Id. at 144. 19 And the Baker court had every reason to assume that the arrest warrant was supported by 20 probable cause, as the Sheriffs “understandably concluded that they had their man” based 21 on the quality of an imposter’s fake identification. Id. at 141. In contrast, the question here 22 is precisely whether Defendants acted objectively reasonably in concluding and reporting 23 that they confirmed the identity of Emily Cota. Baker’s holding and reasoning therefore 24 shed little light on the issues presently before the Court. 25 The Court concludes that Plaintiff has pled sufficient factual information that, taken 26 as true, states a cognizable claim for violation of her Fourth Amendment rights stemming 27 from false or omitted information in a warrant affidavit or application. 28 . . . . 1 D. Qualified Immunity 2 Having determined that Plaintiff has adequately alleged a violation of the Fourth 3 Amendment, the Court now considers whether Plaintiff’s claim must nonetheless be 4 dismissed because relief is barred by the doctrine of qualified immunity. “The doctrine of 5 qualified immunity protects government officials ‘from liability for civil damages insofar 6 as their conduct does not violate clearly established statutory or constitutional rights of 7 which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 8 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[W]hether an official 9 protected by qualified immunity may be held personally liable for an allegedly unlawful 10 official action generally turns on the ‘objective legal reasonableness’ of the action, assessed 11 in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson 12 v. Creighton, 483 U.S. 635, 639 (1987) (citation omitted). 13 In addressing a motion to dismiss based on qualified immunity, the Court must 14 balance the competing principles that a claim must merely be “plausible on its face” to 15 survive a motion to dismiss, but that at the same time qualified immunity is a “low bar” 16 fashioned to protect even some government officials who wrongfully violate individuals’ 17 constitutional rights. Keates v. Koile, 883 F.3d 1228, 1235-38 (9th Cir. 2018). In 18 determining whether to dismiss a claim on grounds of qualified immunity, just as on any 19 other grounds, the court takes Plaintiff’s allegations in her operative complaint as true. 20 See Buckley v. Fitzsimmons, 509 U.S. 259, 261 (1993). 21 It has long been held that it is objectively unreasonable for a law enforcement officer 22 to deliberately or recklessly provide false information in a warrant application. See, e.g, 23 Franks v. Delaware, 438 U.S. 154 (1978). The Ninth Circuit has held that “[i]t is clearly 24 established that judicial deception may not be employed to obtain a search warrant.” KRL, 25 384 F.3d at 1117. A § 1983 action for judicial deception does not require the subjective 26 intent to deceive, Lombardi, 117 F.3d at 1123, but it requires a plaintiff to “show that the 27 defendant deliberately or recklessly made false statements or omissions that were material 28 to the finding of probable cause.” KRL, 384 F.3d at 1117. Moreover, it is also clear that 1 officers “have an ongoing duty to make appropriate inquiries regarding the facts received 2 or to further investigate if insufficient details are relayed.” Motley, 432 F.3d 1072, 1081 3 (9th Cir. 2005), overruled on other grounds by United States v. King, 687 F.3d 1189 (9th 4 Cir. 2012). 5 In determining that Plaintiff’s Complaint states a cognizable claim, supra, the Court 6 has already decided that the allegedly false and omitted information was in fact material to 7 the finding of probable cause. The Court must now consider whether the materiality of the 8 false and omitted information was so apparent that no reasonable officer could conclude 9 otherwise. Id. 10 The Court concludes that, in the particular circumstances of this case, any 11 reasonable officer would have known that the information allegedly misstated and omitted 12 would be material to a finding of probable cause. The Court is particularly struck by 13 Plaintiff’s allegation that Defendant found identification naming “Tania Hernandez” in the 14 purse of the individual claiming to be “Emily Cota.” (Doc. 24 at ¶¶ 26, 65.) Together with 15 the other omitted and misstated information, the Court concludes that not including such 16 information in the report is exactly the sort of “objectively unreasonable” conduct which 17 qualified immunity does not protect. See Malley v. Briggs, 475 U.S. 335, 343 (1986). No 18 reasonable officer could conclude that they had probable cause to arrest “Emily Cota” when 19 the person identifying herself as such did not fit the real Emily Cota’s physical description, 20 did not have identification, offered an address that didn’t match, admitted to lying 21 previously about her identity, and had unexplained state identification and social security 22 cards of another individual on her person. 23 E. Allegations Against Defendant Fortner 24 Finally, the Court considers Defendants’ argument that “the allegations against 25 Deputy Fortner lack the requisite specificity to support a claim.” (Doc. 25) To properly 26 plead a constitutional violation under § 1983, Plaintiff must demonstrate that each named 27 defendant personally participated in the deprivation of her rights. Iqbal, 566 U.S. at 676- 28 77. Plaintiff’s FAC provides few factual allegations regarding the role of Defendant Fortner 1 in the events that gave rise to this action. Those factual allegations that do exist lump 2 Defendants Fortner and Bratt together. In particular, Plaintiff pleads that “Deputies and/or 3 Fortner searched the Mustang,” (Doc. ¶¶ 26, 27), that “Deputy Bratt and Deputy Fortner 4 submitted felony charges against Emily Cota” (id. ¶ 28), that “Deputies Bratt and/or Fortner 5 entered information into their police computer” (id. ¶ 44), that the “information supplied 6 by Deputies Bratt and/or Fortner was used to trigger a direct complaint” (id. ¶ 72), that the 7 complaint was based on “the sworn testimony of Deputies Bratt and/or Fortner” (id. ¶ 73), 8 that a Maricopa Judicial officer based a determination of probable cause based on “sworn 9 information provided by Deputies Bratt and/or Fortner” (id. ¶ 74), and that “Deputies Bratt 10 and/or Fortner swore that they had probable cause that Emily Cota committed the offenses” 11 (id. ¶ 75.) 12 Notwithstanding Plaintiff’s allegations that Defendant Fortner was involved in the 13 above conduct, Plaintiff also alleges that Deputy Bratt alone prepared and submitted the 14 Incident Report and searched the purse of Tania Hernandez, finding her identification. 15 (Doc. 24 ¶¶ 45-65.) Moreover, the Court takes judicial notice2 of the incident report, public 16 record IR16-023703, which makes it clear that the direct complaint was based upon the 17 sworn testimony of Deputy Bratt and not Defendant Fortner. As Plaintiff has failed to 18 provide “nonconclusory factual content, and reasonable inferences from that content” that 19 “plausibly suggest[] a claim entitling the plaintiff to relief” as to Deputy Fortner, the Court 20 will order that Deputy Fortner be dismissed from this action with prejudice. Moss, 572 F.3d 21 at 969. 22 . . . . 23 . . . . 24 . . . .

25 2 The Court may take judicial notice of the Incident Report without converting the motion to dismiss into a motion for summary judgment. There are “two exceptions to the 26 requirement that consideration of extrinsic evidence converts at 12(b)(6) motion to a summary judgment motion. First, a court may consider ‘material which is properly 27 submitted as part of the complaint’… Second, under Fed. R. Evid. 201, a court may take judicial notice of ‘matters of public record.’” Lee v. City of Los Angeles, 250 F.3d 668, 699 28 (9th Cir. 2001) (quoting Mack v. S. Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986)). Both exceptions apply to the Incident Report at issue here. 1 Accordingly, 2 IT IS ORDERED that Defendants’ Motion to Dismiss Defendants Bratt and Fortner for Failure to State a Claim (Doc. 25) is granted in part and denied in part, as follows: 5 1. Count Two of Plaintiff’s First Amended Complaint (Doc. 24) is dismissed with 6 prejudice. 7 2. Defendant Fortner is dismissed with prejudice from this action. 8 3. The remaining claim in the action is Count One against Defendant Bratt. 9 IT IS FURTHER ORDERED that Defendant Bratt must file an Answer to Count 10] One of Plaintiff's First Amended Complaint (Doc. 24) within fourteen days of the filing 11 || of this order. 12 Dated this 13th day of August, 2019. 13 14 ff 15 lifes □□ 16 WGUECAL Honorable Rostwiary Mafquez 17 United States District □□□□□ 18 19 20 21 22 23 24 25 26 27 28

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