George Alan Kelly v. County of Santa Cruz, et al.

• Court: District Court, D. Arizona
• Decided: January 5, 2026
• Docket: 4:25-cv-00040
• Status: Unknown

Opinion

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

9 George Alan Kelly, No. CV-25-00040-TUC-RM

10 Plaintiff, ORDER

11 v.

12 County of Santa Cruz, et al.,

13 Defendants. 14 15 Pending before the Court are Motions to Dismiss under Federal Rule of Civil 16 Procedure 12(b)(6) filed by Defendants Santa Cruz County Sheriff David Hathaway, 17 Detective Jorge Ainza, Detective Mario Barba, Detective Joseph Bunting, Deputy 18 Cristobal Castaneda, Sergeant Alfonso Flores, Sergeant Omar Rodriguez, Sergeant Lluvia 19 Garcia, Commander John Marquez, and Deputy Rafael Lopez (“Officer Defendants”) 20 (Doc. 28); and Defendants Santa Cruz County and Santa Cruz County Attorney George 21 Silva (Doc. 30). Also pending is Plaintiff’s Motion to Amend Response to Motions to 22 Dismiss. (Doc. 40.) 23 I. Plaintiff’s Complaint 24 Plaintiff alleges the following in his Complaint. In approximately 2002, Plaintiff 25 and his wife purchased a ranch located in Santa Cruz County, approximately two miles 26 from the United States-Mexico border. (Doc. 1 at 7 ¶ 29.) They built a home on the 27 property and moved there in 2009. (Id.) The border wall south of Nogales, Arizona stops 28 at Plaintiff’s ranch, making the ranch a focal point for illegal immigrants and drug 1 traffickers. (Id. at 6-7 ¶ 24.) In recent years, an increasing number of drug mules have 2 crossed over Plaintiff’s ranch, traveling in large groups with guns. (Id. at 8 ¶ 32.) Plaintiff 3 began carrying a handgun and keeping a rifle in his home to protect himself and his wife. 4 (Id. at 8-9 ¶ 34.) 5 On January 30, 2023, Plaintiff and his wife were on their property when they saw a 6 group of men with large backpacks and guns. (Id. at 9 ¶¶ 36-37.) While they were inside 7 their home, Plaintiff heard a gunshot outside. (Id. at 9 ¶ 37.) Plaintiff told his wife to get 8 down and then took his rifle to the back patio and fired approximately eight shots into the 9 air to scare the group off his property. (Id. at 9 ¶¶ 37-38.) Plaintiff then called 911 and the 10 Border Patrol. (Id. at 9-10 ¶ 39.) A Border Patrol agent and four deputies from the Santa 11 Cruz County sheriff’s department arrived and walked the property, along with Plaintiff and 12 his dogs. (Id.) They did not see anyone on the property, and the officers left. (Id.) Several 13 hours later, Plaintiff’s dogs alerted to something on the property, and Plaintiff discovered 14 the deceased body of Mr. Buitimea. (Id. at 10 ¶¶ 40-41.) The body was located in an area 15 that Plaintiff and the officers had walked through earlier without seeing anything. (Id. at 16 9-10 ¶ 39.) Mr. Buitimea was dressed in camouflage and had a radio; an empty, unzipped 17 backpack that was pulled over his head; and an empty, unzipped fanny pack. (Id. at 10 ¶ 18 42.) Upon finding the body, Plaintiff called 911 and the Border Patrol. (Id. at 10 ¶ 43.) 19 Santa Cruz County attorneys and sheriff deputies arrived and began to question Plaintiff 20 and his wife. (Id. at 10-11 ¶¶ 43-46.) Plaintiff told the deputies what he had seen earlier 21 in the day and about firing shots from his rifle into the air from his back patio. (Id. at 10 ¶ 22 45.) Plaintiff’s wife told deputies the same version of events. (Id. at 11 ¶ 46.) Within 23 minutes, the deputies arrested Plaintiff for first-degree murder. (Id. at 11 ¶ 47.) He was 24 handcuffed, taken to the sheriff’s department, and booked. (Id. at 11 ¶¶ 47-48.) 25 Plaintiff was held in jail for 23 days, until he could pay a $1 million bond. (Id. at 26 14-15 ¶¶ 61-62.) In jail, he was placed in general population “despite the obvious dangers 27 and repeated threats to his life.” (Id. at 14-15 ¶ 61.) He was denied necessary medication 28 and, when given medication, was denied water with which to swallow the medication. (Id.) 1 Despite a severe back condition, he was denied a mattress and pillow. (Id.) When he 2 complained about the conditions of his confinement, detention officers ignored his 3 complaints and laughed at him. (Id.) Detention officers told him to put his complaints in 4 writing and, when he did so, tore up the written complaint in front of him. (Id.) When 5 Plaintiff was eventually released, he was released without his clothing in freezing 6 temperatures. (Id.) Commander John Marquez was the detention officer in charge of 7 Plaintiff’s treatment in jail. (Id.) 8 On February 2, 2023, Plaintiff was formally charged with first-degree murder. (Id. 9 at 12 ¶ 52.) The complaint was changed to second-degree murder on or about February 10 23, 2023. (Id.) Sheriff Hathaway publicly labeled Plaintiff as a racist, extremist vigilante. 11 (Id. at 15 ¶ 63.) 12 At a probable cause hearing on February 24, 2023, County Attorney Kim Hunley 13 knowingly used fabricated evidence and perjured testimony from “a supposed eyewitness” 14 identified as D.R.R. (Id. at 18-19 ¶¶ 66-68.) D.R.R.’s testimony “was so ridiculous that it 15 was obviously false.” (Id. at 18 ¶ 66.) At Plaintiff’s trial, held from March 22, 2024, to 16 April 19, 2024, the prosecution again presented D.R.R.’s fabricated testimony. (Id. at 19 17 ¶ 73.) The jury was unable to reach a verdict, resulting in a mistrial. (Id.) Following the 18 mistrial, Defendants requested the case be dismissed without prejudice, but the court 19 dismissed it with prejudice in the interest of justice on July 9, 2024. (Id. at 20 ¶ 74.) 20 Plaintiff alleges that all named Defendants were involved in the decision to arrest 21 him, and that Defendants never had probable cause to arrest, detain, charge, or prosecute 22 him for first- or second-degree murder. (Id. at 11-14 ¶¶ 50, 52-59.) Plaintiff contends that 23 the prosecution was based on Defendants’ bias against ranchers who did not accept the 24 Sheriff’s view on immigration. (Id. at 14 ¶ 60.) Specifically, Santa Cruz County Sheriff 25 Hathaway denied that there was a border crisis and decried ranchers who claimed there 26 was. (Id. at 6 ¶ 22.) Defendants prosecuted Plaintiff to create an example for other ranchers 27 who were complaining about the illegal immigration and drug trafficking crisis they were 28 experiencing on their properties. (Id. at 14 ¶ 60.) 1 In Count One of his Complaint, Plaintiff asserts claims under 42 U.S.C. § 1983 2 against all Defendants for false arrest, unlawful seizure, and unlawful prosecution. (Id. at 3 21 ¶ 78-82.) In Count Two, Plaintiff asserts a claim against all Defendants under § 1983 4 for conspiracy to violate Plaintiff’s right to be free from false arrest, unlawful seizure, and 5 unlawful prosecution. (Id. at 22 ¶¶ 83-88.) In Count Three, Plaintiff asserts a claim for 6 violation of his due process right to be free from punishment as a pretrial detainee. (Id. at 7 23 ¶¶ 89-93.) In Count Four, Plaintiff asserts a municipal liability claim against Santa Cruz 8 County pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978). (Id. at 9 24 ¶¶ 94-97.) Plaintiff seeks compensatory and exemplary damages. (Id. at 25-26 ¶¶ 99- 10 101.) 11 II. Motion to Amend Response 12 After Defendants’ Motions to Dismiss were fully briefed, Plaintiff moved for leave 13 to amend his Response to the Motions to Dismiss, purportedly to correct “some factual 14 inaccuracies and some typographical errors.” (Doc. 40.) In the Motion to Amend, Plaintiff 15 states that he “reached out to Defendants to see if they oppose the motion” but that he did 16 not receive a response. (Id.) Even though this Court has specifically notified Plaintiff of 17 the correct procedures for filing proposed documents under Section II(H) of the District of 18 Arizona Case Management/Electronic Case Filing Administrative Policies and Procedures 19 Manual (“CM/ECF Manual”) (see Doc. 37), Plaintiff filed his Amended Response 20 concurrently with the Motion to Amend (Doc. 41), instead of lodging it as a proposed 21 document as required by Section II(H) of the CM/ECF Manual. Plaintiff did not file a 22 redlined copy of the Amended Response, nor does he identify the changes made. 23 Defendants filed Responses in opposition to Plaintiff’s Motion to Amend, averring 24 that they never received any communication about the Motion to Amend, and arguing that 25 the Amended Response is improper and goes far beyond fixing minor errors, instead 26 altering facts underlying the Rule 12(b)(6) briefing and adding new allegations. (Docs. 42, 27 43.) Plaintiff did not file a reply in support of the Motion to Amend, and the time for doing 28 so has expired. 1 Plaintiff’s Amended Response includes numerous alterations to factual allegations 2 contained within Plaintiff’s Complaint and his original Response. For example, the 3 Amended Response adds a factual allegation that a member of the group that Plaintiff saw 4 on his property turned a rifle on Plaintiff before Plaintiff fired shots into the air. (Compare 5 Doc. 35 at 5, with Doc. 41 at 5.) The Complaint does not include this allegation. (See Doc. 6 1.) The Amended Response also adds an allegation that the group continued across 7 Plaintiff’s property toward a barn after Plaintiff fired shots into the air. (Compare Doc. 35 8 at 5, with Doc. 41 at 5.) Again, the Complaint does not include this allegation. (See Doc. 9 1.) The Amended Response deletes the allegation that Plaintiff told deputies about using 10 a rifle to fire into the air from his back patio; this allegation appears in Plaintiff’s Complaint 11 and the original Response. (Compare Doc. 1 at 10 ¶ 45, and Doc. 35 at 6, with Doc. 41 at 12 6.) The Amended Response adds an allegation that Detective Ainza made false statements 13 in Plaintiff’s booking form, even though the Complaint does not include this allegation. 14 (Compare Doc. 1, and Doc. 35 at 7, with Doc. 41 at 7.) Furthermore, the Amended 15 Response includes additional allegations regarding testimony at Plaintiff’s probable cause 16 hearing. (Compare Doc. 35 at 10, with Doc. 41 at 9-10.) 17 Plaintiff has not established why he should be allowed to amend his Response— 18 after Defendants’ Motions to Dismiss had already been fully briefed—to include factual 19 allegations different than those that appear in the Complaint. The Court will accordingly 20 deny Plaintiff’s Motion to Amend. Because Plaintiff’s Amended Response was filed 21 without leave of Court and in violation of Section II(H) of the CM/ECF Manual, the Court 22 will strike the Amended Response from the docket. See LRCiv 7.2(m)(1). 23 III. Motions to Dismiss 24 Defendants ask the Court to dismiss Plaintiff’s Complaint for failure to state a claim 25 under Federal Rule of Civil Procedure 12(b)(6). (Docs. 28, 30.) 26 A. Legal Standard 27 Dismissal of a complaint, or any claim within it, for failure to state a claim under 28 Rule 12(b)(6) may be based on either the “lack of a cognizable legal theory or the absence 1 of sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside 2 Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks 3 omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual 4 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 5 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 6 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that 7 allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.” Id. While a complaint need not include “detailed factual 9 allegations,” it must contain more than labels, conclusions, “and a formulaic recitation of 10 the elements of a cause of action.” Twombly, 550 U.S. at 555. 11 In evaluating a Rule 12(b)(6) motion to dismiss, the court must take as true all well- 12 pleaded factual allegations of the complaint and construe them in the light most favorable 13 to the nonmovant. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, 14 the court need not accept as true legal conclusions that are couched as factual allegations. 15 Iqbal, 556 U.S. at 678. 16 A court generally cannot consider evidence outside the pleadings in ruling on a Rule 17 12(b)(6) motion, but the Court may consider “certain materials—documents attached to 18 the complaint, documents incorporated by reference in the complaint, or matters of judicial 19 notice—without converting the motion to dismiss into a motion for summary judgment.” 20 United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003). 21 B. Discussion 22 The Officer Defendants argue that Plaintiff’s § 1983 claims for false arrest, unlawful 23 imprisonment, unlawful prosecution, and conspiracy are barred by the doctrine of collateral 24 estoppel because the issue of probable cause to charge and hold Plaintiff was litigated at 25 the February 24, 2023 probable cause hearing in state court. (Doc. 28 at 1-2. 10-14.) The 26 Officer Defendants further argue that, even if the state-court probable cause finding is not 27 given preclusive effect, there was probable cause for Plaintiff’s arrest and prosecution, and 28 the Officer Defendants are entitled to qualified immunity. (Id. at 2, 14-17.) Commander 1 Marquez argues that the conditions of confinement claim asserted against him must be 2 dismissed because Plaintiff does not allege that he personally participated in the challenged 3 conduct, acted with deliberate indifference, or disregarded a substantial risk of serious 4 harm. (Id. at 17.) 5 County Attorney Silva argues that the claims against him must be dismissed because 6 Plaintiff’s Complaint does not allege that he personally participated in the purported 7 constitutional violations, and because he is entitled to absolute prosecutorial immunity. 8 (Doc. 30 at 8-10.) Silva and Santa Cruz County argue that Plaintiff’s Complaint fails to 9 state a claim for malicious prosecution because Plaintiff cannot show a lack of probable 10 cause and he does not plead facts showing malice or a purpose to deprive him of a federal 11 constitutional right. (Id. at 10-14.) Silva and Santa Cruz County further argue that 12 Plaintiff’s conspiracy claim fails for lack of an underlying § 1983 violation, for lack of 13 class-based discriminatory animus, and due to the intracorporate conspiracy doctrine. (Id. 14 at 14-15.) Finally, Santa Cruz County argues that Plaintiff fails to state a Monell claim 15 because the Complaint includes only conclusory assertions of a custom or policy. (Id. at 16 15-16.) 17 1. Probable Cause 18 To state a claim on which relief can be granted under § 1983, Plaintiff must plausibly 19 allege that Defendants committed the challenged conduct while acting under color of state 20 law, and that the conduct deprived Plaintiff of a constitutional right. Balistreri v. Pacifica 21 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To state a constitutional claim for false 22 arrest, Plaintiff’s factual allegations must plausibly show that Defendants were personally 23 involved in the arrest or decision to arrest Plaintiff, and the arrest was without probable 24 cause. Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998); see also 25 Lacey v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012). To state a constitutional claim 26 for malicious prosecution, Plaintiff’s factual allegations must plausibly establish the state 27 common law elements of malicious prosecution: (1) “a criminal prosecution,” (2) “that 28 terminates in favor of [the] plaintiff,” (3) “with defendants as prosecutors,” (4) “actuated 1 by malice,” (5) without probable cause[,]” and (6) “causing damages.” Cullison v. City of 2 Peoria, 584 P.2d 1156, 1160 (Ariz. 1978); see also Mills v. City of Covina, 921 F.3d 1161, 3 1169 (9th Cir. 2019) (“Federal courts rely on state common law for elements of malicious 4 prosecution.”). Furthermore, Plaintiff must plausibly allege that Defendants prosecuted 5 him “for the purpose of denying [him] equal protection or another specific constitutional 6 right.” Lacey, 693 F.3d at 919. 7 The existence of probable cause is an absolute defense to false arrest, false 8 imprisonment, and malicious prosecution claims. Yousefian v. City of Glendale, 779 F.3d 9 1010, 1014 (9th Cir. 2015) (false arrest and malicious prosecution); Cota v. Penzone, No. 10 CV-18-02535-PHX-RM, 2019 WL 415703, at *5 (D. Ariz. Feb. 1, 2019) (false arrest and 11 false imprisonment). Absent an underlying constitutional violation, a plaintiff cannot 12 plausibly allege a conspiracy claim under § 1983 or a claim for municipal liability under 13 Monell. See Lacey, 693 F.3d at 935 (“Conspiracy is not itself a constitutional tort under § 14 1983,” and it “does not enlarge the nature of the claims asserted by the plaintiff, as there 15 must always be an underlying constitutional violation”); City of Los Angeles v. Heller, 475 16 U.S. 796, 799 (1986) (no Monell liability absent an underlying constitutional injury); Hart 17 v. Parks, 450 F.3d 1059, 1069, 1071 (9th Cir. 2006) (§ 1983 conspiracy claims and Monell 18 claims fail absent underlying constitutional violation). Accordingly, the existence of 19 probable cause for Plaintiff’s arrest and prosecution is fatal to Counts One, Two, and Four 20 of the Complaint. 21 a. Issue Preclusion 22 The state court twice found probable cause for Plaintiff’s criminal prosecution, first 23 during Plaintiff’s February 24, 2023 preliminary hearing (Doc. 28-2; Doc. 30-2 at 2-219), 24 and then again during a May 17, 2023 review of the preliminary hearing probable cause 25 finding (Doc. 30-2 at 220 (non-electronically filed video recording).) The state court found 26 probable cause for Plaintiff’s arrest during an August 11, 2023 hearing on a suppression 27 motion. (Doc. 30-2 at 221 (non-electronically filed video recording).)1 Defendants argue

28 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 1 that the state-court probable cause findings are entitled to preclusive effect in this action. 2 (Doc. 28 at 13-14; Doc. 30 at 12-13.) Plaintiff contends that the state-court findings are 3 “prima facie evidence of probable cause” but “not conclusive,” and that they do not 4 preclude Plaintiff’s claims because they were “based upon known fabricated evidence and 5 perjury,” namely purportedly false testimony by eyewitness D.R.R. (Doc. 35 at 13-15.) 6 Plaintiff further argues that issue preclusion does not apply because “there was additional 7 evidence at the preliminary hearing from when the arrest was made.” (Id. at 15.) 8 The doctrine of “[i]ssue preclusion, also known as collateral estoppel, bars the 9 relitigation of issues actually adjudicated in previous litigation.” Janjua v. Neufeld, 933 10 F.3d 1061, 1065 (9th Cir. 2019) (internal quotation marks omitted). State law governs “the 11 application of collateral estoppel to a state court judgment in a federal civil rights action.” 12 Mills, 921 F.3d at 1169; see also Allen v. McCurry, 449 U.S. 90, 96, 105 (1980) (federal 13 courts “give preclusive effect to state-court judgments whenever the courts of the State 14 from which the judgments emerged would do so” (citing 28 U.S.C. § 1738)). In Arizona, 15 issue preclusion applies when (1) an issue or fact “was actually litigated in a previous suit,” 16 (2) “a final judgment was entered,” (3) “the party against whom the doctrine is to be 17 invoked had a full opportunity to litigate the matter and actually did litigate it,” and (4) the 18 issue or fact “was essential to the prior judgment.” Crosby-Garbotz v. Fell in re Pima 19 Cnty., 434 P.3d 143, 146 (Ariz. 2019).2 The parties do not cite, and this Court has not 20 located, any Arizona Supreme Court or Arizona Court of Appeals decision addressing 21 whether a probable cause finding made at a criminal preliminary hearing is entitled to 22 preclusive effect in a later civil action. 23 may take judicial notice of public records from other proceedings in determining the 24 applicability of issue preclusion). 2 In their Reply, Santa Cruz County and Silva rely on Martinez v. United States, 997 F.3d 25 867 (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 26 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 27 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 28 F.3d 792, 812 n.16 (9th Cir. 2008). Furthermore, Martinez did not specifically analyze or address Arizona law on issue preclusion. 1 Plaintiff relies on Wige v. City of Los Angeles to argue that issue preclusion is 2 inapplicable if additional evidence not known at the time of arrest was presented during 3 the preliminary hearing, or if the preliminary hearing probable cause finding was based on 4 fabricated evidence. (Doc. 35 at 15.) In Wige, the Ninth Circuit found that the identity-of- 5 issues requirement of issue preclusion under California law is generally satisfied when a 6 court is “asked to give preclusive effect to preliminary hearing probable cause findings in 7 subsequent civil actions for false arrest and malicious prosecution.” 713 F.3d 1183, 1185 8 (9th Cir. 2013). However, the issue of probable cause litigated during a preliminary 9 hearing is not identical to the issue of probable cause for purposes of a false arrest claim if 10 additional evidence unknown to officers at the time of the arrest was presented during the 11 preliminary hearing. Id. at 1186. Furthermore, the identity-of-issues requirement is not 12 met if fabricated evidence was presented at the preliminary hearing. Id. 13 Although Wige applied California law on issue preclusion, the limitations expressed 14 in Wige are likely consistent with Arizona law. Cf. Reams v. City of Tucson, 701 P.2d 598, 15 601-02 (Ariz. App. 1985) (finding evidence of an indictment irrelevant to issue of whether 16 probable cause existed for the plaintiff’s arrest, because a false arrest claim hinges upon 17 “the facts as they existed at the time of the arrest,” whereas an indictment may be predicated 18 upon evidence developed later); see also Restatement (2d) of Torts § 663(2) & cmt. to § 19 663(2) (the commitment of an accused to stand trial by a magistrate upon a preliminary 20 hearing “is evidence that the person initiating the proceedings had probable cause,” but the 21 court should consider whether false testimony was presented to or material evidence 22 withheld from the magistrate); Webster v. Culbertson, 761 P.2d 1063, 1066 (Ariz. 1988) 23 (“In the absence of law to the contrary, Arizona follows the Restatement.”). But even if 24 the issue of probable cause for Plaintiff’s arrest and prosecution was not actually litigated 25 during Plaintiff’s preliminary hearing for purposes of issue preclusion, due to the 26 presentation of allegedly false testimony by D.R.R. and the presentation of additional 27 evidence not known at the time of the arrest, Plaintiff fails to address the additional 28 probable cause findings made during his state-court criminal proceedings. Specifically, in 1 reviewing the preliminary hearing probable cause finding, the state trial court found 2 probable cause for Plaintiff’s prosecution even when disregarding D.R.R.’s testimony. 3 (Doc. 30-2 at 220 (non-electronically filed video recording).) Furthermore, in ruling on 4 Plaintiff’s suppression motion, the state trial court found probable cause for Plaintiff’s 5 arrest based solely on the information known to officers at the time of the arrest. (Doc. 30- 6 2 at 221 (non-electronically filed video recording).) Plaintiff was represented by counsel 7 during the state criminal proceedings, and he had a full and fair opportunity to litigate the 8 issue of probable cause for his arrest and prosecution. 9 Accordingly, it appears that at least some of the requirements for the application of 10 issue preclusion under Arizona law are satisfied. However, Defendants do not adequately 11 address all of the Arizona law requirements for issue preclusion. Specifically, Defendants 12 do not adequately address whether Plaintiff’s criminal proceedings—which terminated 13 upon motion of the prosecutor—resulted in a final judgment for purposes of issue 14 preclusion under Arizona law, nor do Defendants adequately address whether the probable 15 cause findings were essential to the criminal judgment. In State v. Greenberg, the Arizona 16 Court of Appeals held that “[a]n interlocutory suppression order is not final for purposes 17 of collateral estoppel.” 343 P.3d 462, 469 (Ariz. App. 2015); see also State v. Young, 552 18 P.3d 527, 534 (Ariz. App. 2024) (same). The court further found that a criminal case that 19 was dismissed without prejudice on motion of the prosecution did not result in a judgment 20 to which collateral estoppel could attach, because a judgment under Arizona law is defined 21 as a court’s adjudication, based on a jury verdict, court verdict, or plea, that a defendant is 22 guilty or not guilty. Greenberg, 343 P.3d at 465, 469-70; see also Young, 552 P.3d at 532, 23 534 (same); Ariz. R. Crim. P. 26.1(b) (“‘Judgment’ means the court’s adjudication that the 24 defendant is guilty or not guilty based on the jury’s or the court’s verdict, or the defendant’s 25 plea”). Although Plaintiff’s criminal case was dismissed with prejudice rather than without 26 prejudice, it was similarly dismissed on the prosecution’s motion, and the dismissal was 27 not based on an adjudication that Plaintiff was guilty or not guilty. 28 Because Defendants have not conclusively shown that all requirements of issue 1 preclusion under Arizona law are satisfied, the Court declines to dismiss Plaintiff’s claims 2 on the grounds that the state court’s probable cause findings are entitled to preclusive 3 effect.3 4 b. Sufficiency of Allegations Regarding Lack of Probable Cause 5 Even if the state-court findings of probable cause are not entitled to preclusive 6 effect, Plaintiff’s Complaint does not plausibly allege a lack of probable cause for his arrest 7 and prosecution. Probable cause “is a fluid concept” that “deals with probabilities and 8 depends on the totality of the circumstances.” District of Columbia v. Wesby, 583 U.S. 48, 9 57 (2018) (internal quotation marks omitted). It “is not a high bar,” and “requires only a 10 probability or substantial chance of criminal activity[.]” Id. (internal quotation marks 11 omitted). 12 “Probable cause to arrest exists when officers have knowledge or reasonably 13 trustworthy information sufficient to lead a person of reasonable caution to believe that an 14 offense has been or is being committed by the person being arrested.” United States v. 15 Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007). The arresting officer’s “subjective reason for 16 making the arrest need not be the criminal offense as to which the known facts provide 17 probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Id. at 153. “Because 18 probable cause is an objective standard, an arrest is lawful if the officer had probable cause 19 to arrest for any offense, not just the offense cited at the time of arrest or booking.” Wesby, 20 583 U.S. at 54 n.2. 21 Plaintiff contends that Defendants needed to “have facts and circumstances within 22 their knowledge on all of” the elements of first-degree murder, including premeditation, in 23 order for his arrest to be supported by probable cause. (Doc. 35 at 14.) But Defendants 24 merely needed to have probable cause to arrest Plaintiff for any offense. See Wesby, 583 25 U.S. at 54 n.2. Plaintiff’s Complaint alleges that, at the time of his arrest, a dead body had 26 been discovered on his property, and he had told officers that, earlier in the day, he had 27 fired multiple shots from his rifle in order to scare a group of individuals he had observed

28 3 This holding does not preclude Defendants from re-asserting issue preclusion as a basis for dismissing claims asserted in any amended complaint. 1 on his property. (Doc. 1 at 10-11 ¶¶ 40-41, 43-47.) Based on these circumstances, officers 2 had probable cause to arrest Plaintiff for second-degree murder, or at least for manslaughter 3 or negligent homicide. See A.R.S. § 13-1104(A) (second-degree murder); § 13-1103(A) 4 (manslaughter); § 13-1102(A) (negligent homicide). 5 “In the context of malicious prosecution, probable cause is defined as a reasonable 6 ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent 7 man in believing the accused is guilty of the offense.” Gonzales v. City of Phoenix, 52 8 P.3d 184, 187 (Ariz. 2002) (internal quotation marks omitted). “[T]he mere fact a 9 prosecution was unsuccessful does not mean it was not supported by probable cause.” 10 Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). According to the 11 allegations of Plaintiff’s Complaint, an eyewitness claimed to have seen Plaintiff shoot the 12 decedent in the chest while the decedent was resting on a dirt road. (Doc. 1 at 18 ¶ 67.) 13 Furthermore, Plaintiff gave inconsistent statements to police officers when questioned 14 about what had occurred. (Id. at 19 ¶ 71.) These circumstances are sufficient to warrant 15 an ordinarily prudent individual in believing Plaintiff guilty of first- or second-degree 16 murder. See A.R.S. § 13-1105(A) (first-degree murder); § 13-1104(A) (second-degree 17 murder). Plaintiff argues that eyewitness D.R.R.’s testimony was inconsistent with 18 physical evidence found at the scene (Doc. 35 at 10, 15), but while these arguments could 19 create reasonable doubt in the minds of one or more jurors at trial, “probable cause can 20 well exist (and often does) even though ultimately, a jury is not persuaded that there is 21 proof beyond a reasonable doubt.” Yousefian, 779 F.3d at 1014. 22 Given the existence of probable cause for Plaintiff’s arrest and prosecution, the 23 Court will grant Defendants’ Motions to Dismiss with respect to Counts One, Two, and 24 Four of the Complaint.4 25 2. Conditions of Pretrial Confinement 26 Count Three asserts a due process claim under the Fourteenth Amendment alleging 27 that Plaintiff was subjected to punishment as a pretrial detainee. (Doc. 1 at 23 ¶¶ 89-93.)

28 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. 1 Defendants argue that Plaintiff fails to plausibly state a claim because he does not allege 2 facts showing that Commander Marquez “personally participated in the alleged conduct, 3 acted with deliberate indifference, or disregarded a substantial risk of serious harm.” (Doc. 4 28 at 17.) Plaintiff does not address these arguments in his Response to Defendants’ 5 Motions to Dismiss. (See Doc. 35.) 6 Plaintiffs’ Complaint challenges actions taken by unnamed detention officers at the 7 Santa Cruz County jail and alleges that “Commander John Marquez” was “in charge of the 8 treatment” that Plaintiff received while in the jail. (Doc. 1 at 14-15, 23 ¶¶ 61, 90-92.) 9 However, Plaintiff does not allege any specific actions taken by Commander Marquez. 10 “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that 11 each Government-official defendant, through the official’s own individual actions, has 12 violated the Constitution.” Iqbal, 556 U.S. at 676. Because Plaintiff does not attribute any 13 allegedly unconstitutional actions to any named defendants with respect to Count Three, 14 the Court will grant Defendants’ Motions to Dismiss with respect to that count. 15 3. Leave to Amend 16 “If a complaint is dismissed for failure to state a claim, leave to amend should be 17 granted unless the court determines that the allegation of other facts consistent with the 18 challenged pleading could not possibly cure the deficiency.” DeSoto v. Yellow Freight 19 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (internal quotation marks omitted). Given the 20 liberal standards governing leave to amend, the Court will dismiss Plaintiff’s Complaint 21 without prejudice and with leave to amend. 22 IT IS ORDERED that Plaintiff’s Motion to Amend Response (Doc. 40) is denied. 23 Plaintiff’s Amended Response (Doc. 41), which was filed without leave of Court and in 24 violation of CM/ECF Manual § II(H), is stricken from the docket. 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss (Docs. 28, 30) 2|| are granted. Plaintiff's Complaint (Doc. 1) is dismissed with leave to amend. Plaintiff 3 || may file an amended complaint within fourteen (14) days of the day this Order is filed. If 4|| 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. 6 Dated this 5th day of January, 2026. 7

10 — UGUELL Honorable Rosthiary □□□□□□□ 11 United States District □□□□□ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-15-