Goodbar v. Romo

• Court: District Court, D. Arizona
• Decided: September 10, 2025
• Docket: 2:25-cv-01345
• Status: Unknown

Opinion

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

9 Michelle E Goodbar, No. CV-25-01345-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Richard Romo,

13 Defendant. 14 15 Pending before the Court is Defendant’s Motion to Dismiss (Doc. 10), Plaintiff’s 16 Response (Doc. 13), and Defendant’s Reply (Doc. 14). For the following reasons, the 17 Court grants Defendant’s Motion.

18 I. BACKGROUND 19 Defendant, a detective for Arizona Department of Public Safety (“AZDPS”), 20 conducted an undercover drug purchase at a home in Phoenix, Arizona. (Doc. 1 at 3.) 21 When Defendant arrived at the home, he met a woman who introduced herself as 22 “Michelle.” (Doc. 1 at 3.) Defendant offered to exchange stolen goods for drugs. Michelle 23 relayed Defendant’s offer to her uncle, who agreed to sell Defendant fentanyl for the stolen 24 goods and cash. (Doc. 1 at 3.) 25 Defendant returned to the AZDPS office where an analyst helped identify Michelle. 26 (Doc. 1 at 4.) Defendant relayed Michelle’s name, aspects of her physical appearance, and 27 the identity of her uncle. (Doc. 1 at 4.) Based on this information, the analyst provided 28 Defendant with Plaintiff’s driver’s license photo. (Doc. 1 at 4.) Defendant concluded that 1 Plaintiff and Michelle were the same person based on the photo. (Doc. 1 at 4.) Plaintiff 2 was then indicted for a class 2 felony, served with a summons, and arraigned. (Doc. 1 at 4.) 3 Plaintiff maintained that she was not Michelle and requested the prosecution to 4 dismiss the case. (Doc. 1 at 5.) Plaintiff provided the prosecution with her alibi, photos of 5 herself, and other information purporting to establish that she was not Michelle. (Doc. 1 6 at 5.) Plaintiff’s dismissal request was denied. (Doc. 1 at 5.) 7 After, Plaintiff’s counsel interviewed Defendant and presented him with evidence 8 asserting that Plaintiff was not Michelle. (Doc. 1 at 6.) Nonetheless, Defendant maintained 9 that Michelle and Plaintiff were the same person. (Doc. 1 at 6.) However, the prosecution 10 dismissed the case. (Doc. 1 at 7.) 11 Prior to being charged, Plaintiff was employed by the Arizona Department of 12 Economic Security (“AZDES”). (Doc. 1 at 7.) However, Plaintiff resigned when faced 13 with the threat of termination because of her indictment. (Doc. 1 at 7.) After the charges 14 were dismissed, Plaintiff was rehired in a different division of AZDES at a lower rate of 15 pay. (Doc. 1 at 7.) 16 Plaintiff sued Defendant under 42 U.S.C. § 1983 for deprivation of her rights under 17 the Fourth and Fourteenth Amendments. (Doc. 1 at 9.) Plaintiff argues that Defendant 18 knowingly misidentified her, “wrongfully associated the case” with her, and “failed to 19 comply with the law to identify and prosecute [her].” (Doc. 1at 8.) Such conduct, Plaintiff 20 argues, deprived her of “[f]reedom from deprivation of liberty without due process” and 21 “[f]reedom from summary punishment.” (Doc. 1 at 9.) Plaintiff also seeks punitive 22 damages based on Defendant’s alleged “evil motives” and having “knowingly subjected 23 [her] to a risk of substantial harm and conduct.” (Doc. 1 at 9.) Defendant filed the instant 24 Motion to Dismiss, arguing that the Complaint should be dismissed under Federal Rule of 25 Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim. 26 II. LEGAL STANDARD 27 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 28 the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the 1 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 2 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 3 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 4 47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court 5 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a 7 cause of action, supported by mere conclusory statements, do not suffice.” Id. 8 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 9 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 10 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 11 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 12 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 13 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 14 “probability,” but requires “more than a sheer possibility that a defendant has acted 15 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a 16 defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’” 17 Id. (quoting Twombly, 550 U.S. at 557). 18 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 19 taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 20 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 21 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 22 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 23 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence 24 outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See United States 25 v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider 26 materials—documents attached to the complaint, documents incorporated by reference in 27 the complaint, or matters of judicial notice—without converting the motion to dismiss into 28 a motion for summary judgment.” Id. at 908. 1 III. DISCUSSION 2 To state a § 1983 claim, “a plaintiff must ‘plead that (1) the defendants acted under 3 color of state law and (2) deprived plaintiff of rights secured by the Constitution or federal 4 statutes.’” WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc) (quoting 5 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986)). The parties do not dispute 6 that Defendant was acting under the color of law while acting as a detective for AZDPS. 7 (Doc. 10 at 3.) Accordingly, the Court only assesses whether Plaintiff sufficiently pleads 8 that Defendant deprived her of constitutionally protected rights. 9 A. Fourth Amendment 10 Plaintiff claims that Defendant deprived her of her rights under the Fourth 11 Amendment. The Fourth Amendment protects “[t]he right of the people to be secure in 12 their persons, houses, papers, and effects, against unreasonable searches and seizures.” 13 U.S. Const. amend. IV. The Court finds that Plaintiff has failed to allege that she was 14 either unconstitutionally searched or seized by Defendant. 15 1. Search 16 A search can occur in two ways. “First, under the Katz test, a search occurs when 17 the ‘government violates a subjective expectation of privacy that society recognizes as 18 reasonable.’” United States v. Esqueda, 88 F.4th 818, 823 (9th Cir. 2023) (quoting Kyllo 19 v. United States, 533 U.S. 27, 33 (2001)). Second, a search occurs “when the government 20 ‘physically occupie[s] private property for the purpose of obtaining information,’ ‘to 21 engage in conduct not explicitly or implicitly permitted’ by the property owner.” Id. 22 (alteration in original) (internal citations omitted) (first quoting United States v. Jones, 565 23 U.S. 400, 404 (2012); and then Florida v. Jardines, 569 U.S. 1, 6 (2013)). Plaintiff has not 24 alleged facts suggesting that Defendant violated her privacy expectations or occupied any 25 of her private property.1 Accordingly, the Court assesses whether Plaintiff has sufficiently 26 alleged that Defendant unreasonably seized her.

27 1 Defendant, in his Motion to Dismiss, argues that “Plaintiff does not allege that she, or any of her property, was subjected to a search.” (Doc. 10 at 3–4.) Plaintiff, in her 28 Response, does not contest this argument. (Doc. 13 at 5.) Instead, Plaintiff only argues that she sufficiently pleads that Defendant unconstitutionally seized her. (Doc. 13 at 5.) 1 2. Seizure 2 “A person is seized by the police and thus entitled to challenge the government's 3 action under the Fourth Amendment when the officer, ‘by means of physical force or show 4 of authority,’ terminates or restrains his freedom of movement . . . .” Brendlin v. 5 California, 551 U.S. 249, 254 (2007) (internal citation omitted) (quoting Florida v. Bostick, 6 501 U.S. 429, 434 (1991)). Here, Plaintiff argues that “[t]he indictment, summons, and 7 arraignment effectively ‘seized’ [her] for Fourth Amendment Purposes.” (Doc. 13 at 6.) 8 However, Plaintiff does not allege that she was ever held in custody, arrested, 9 incarcerated, or physically restrained in any way. Furthermore, Plaintiff does not allege 10 that she did not remain at liberty on her own recognizance throughout the foregoing 11 procedures. Instead, Plaintiff argues in accord with Justice Ginsburg’s concurrence in 12 Albright v. Oliver, 510 U.S. 266, 276–81 (1994) (Ginsburg, J., concurring) (plurality 13 opinion). (Doc. 14 at 6.) There, Justice Ginsburg posits that an unincarcerated person is 14 “bound to appear, and is hence ‘seized’ for trial, when the state employs the less strong-arm 15 means of a summons in lieu of arrest to secure his presence in court.” Id. at 279. Defendant 16 responds that “a summons to appear before a court coupled with certain pre-trial release 17 restrictions, does not rise to the level of a Fourth Amendment seizure.” (Doc. 10 at 4.) The 18 Court agrees. 19 While some courts have considered and even adopted some version of Justice 20 Ginsburg’s Albright concurrence, see Burg v. Gosselin, 591 F.3d 95, 98–99 (2nd Cir. 2010) 21 (citing cases), other courts have expressly rejected Justice Ginsburg’s theory, see Nieves v. 22 McSweeney, 241 F.3d 46, 55 (1st Cir. 2001) (citing cases). Still, “the view that an 23 obligation to appear in court to face criminal charges constitutes a Fourth Amendment 24 seizure is not the law.” Nieves, 241 F.3d at 55. Instead, “seizure jurisprudence traditionally 25 has centered on the initial deprivation of liberty that a seizure of the person entails.” Id. 26 Accordingly, “run-of-the-mill conditions of pretrial release do not fit comfortably within 27 the recognized parameters of [a seizure].” Id. 28 The Court is persuaded by Karam v. City of Burbank, 352 F.3d 1188, 1193–94 (9th 1 Cir. 2003), which found that a person is not seized where they only face de minimus 2 pre-trial restrictions. In Karam, the court found that a defendant charged with a 3 misdemeanor was not seized when she was merely required to appear for all hearings and 4 request permission before leaving the state. Id. at 1193. While Plaintiff was charged with 5 a felony, that fact alone does not suggest that she was subject to any pretrial restrictions 6 amounting to a seizure. Even the courts that find some combination of pretrial release 7 restrictions can constitute a seizure still require relatively significant restrictions such as 8 having to: obtain permission before leaving the state; regularly report to court officers for 9 extended periods of time; provide law enforcement with financial and identifying 10 information; and post a significant bond. See id. at 1193–94 (citing cases). 11 Applied here, Plaintiff has failed to point to any deprivation of liberty beyond the 12 fact that she was indicted, summonsed, and arraigned. Standing alone, however, those 13 events do not constitute a seizure under the Fourth Amendment. See Ramirez v. Whitt, No. 14 CV-25-00941-PHX-SPL, 2025 WL 1911759, at *3 (D. Ariz., July 11, 2025) (finding that 15 a claim for unlawful seizure fails where a claimant, who “was subjected to the legal process 16 and the threat of criminal sanction,” fails to present “any allegations that [the claimant] was 17 ‘otherwise exposed to any significant deprivation of liberty’” (quoting Karam, 352 F.3d 18 at 1193)); Bielanski v. County of Kane, 550 F.3d 632, 642 (7th Cir. 2008) (“No court has 19 held that a summons alone constitutes a seizure . . . .”). Accordingly, the Court finds that 20 Plaintiff has failed to sufficiently allege that Defendant deprived her of any right protected 21 by the Fourth Amendment.2 22 B. Fourteenth Amendment 23 Plaintiff also alleges that Defendant deprived her of her Fourteenth Amendment due 24 process rights. “The Fourteenth Amendment’s Due Process Clause protects persons 25 against deprivations of life, liberty, or property; and those who seek to invoke its procedural 26 protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 27 U.S. 209, 221 (2005). Plaintiff does not specify whether she is claiming a violation of her

28 2 Because Plaintiff insufficiently pleads that she was seized, the Court does not address the parties’ arguments regarding the reasonableness of any purported seizure. 1 procedural or substantive due process rights. Regardless, “[t]o state a prima facie 2 substantive or procedural due process claim, one must, as a threshold matter, identify a 3 liberty or property interest protected by the Constitution.” United States v. 4 Guillen-Cervantes, 748 F.3d 870, 872 (9th Cir. 2014); see also Hotop v. City of San Jose, 5 982 F.3d 710, 718 (9th Cir. 2020) (noting that procedural and substantive due process 6 claims “both require, as a threshold matter, that plaintiffs show they were deprived of a 7 ‘constitutionally protected life, liberty or property interest’” (quoting Shanks v. Dressel, 8 540 F.3d 1082, 1087 (9th Cir. 2008))). Accordingly, the Court assesses whether Plaintiff 9 has sufficiently alleged that she was deprived of a constitutionally protected life, liberty, 10 or property interest. 11 Plaintiff provides that she was deprived of her constitutional right to “[f]reedom 12 from summary punishment.” (Doc. 1 at 9.) However, Plaintiff has not alleged any facts 13 indicating that she was summarily punished. The charge against Plaintiff was dismissed. 14 Additionally, Plaintiff does not otherwise allege that she was subject to a government 15 imposed criminal or civil penalty. 16 Plaintiff further provides that she was deprived of her constitutional right to 17 “[f]reedom from deprivation of liberty without due process.” (Doc. 1 at 9.) Plaintiff 18 alleges that because of Defendant’s actions she: “resigned from her position under threat 19 of termination as a result of her indictment”; was required to return to employment with 20 AZDES in a different division at lower rate of pay and “start all over with her seniority, 21 benefits, and Family Medical Leave Act benefits”; and “lost and will lose wages in the 22 future.” (Doc. 1 at 7–8.) The foregoing outcomes, however, do not implicate 23 constitutionally protected interests. 24 The Court begins with Plaintiff’s allegation that Defendant’s conduct caused her to 25 resign from AZDES under threat of termination. The Court recognizes that government 26 employees can have a protected property interest in continued employment. Perry v. 27 Sindermann, 408 U.S. 593, 599–603 (1972) (finding there to be a triable issue of fact as to 28 whether a teacher in a state college system was deprived of a protected property interest 1 when that teacher’s contract was terminated). However, such an interest only exists where 2 there is “a legitimate claim to tenure or if the terms of the employment make it clear that 3 the employee can be fired only for cause.” Blantz v. Cal. Dep’t of Corr. & Rehab., Div. of 4 Corr. Health Care Servs., 727 F.3d 917, 922 (9th Cir. 2013). Plaintiff does not allege any 5 facts suggesting that she “has a legitimate claim of entitlement to job tenure.” See 6 Sindermann, 408 U.S. at 602. Plaintiff alleges that she was employed at AZDEP for five 7 years prior to her resignation but that fact, standing alone, is insufficient to suggest that 8 Plaintiff had a legitimate entitlement to future employment. Plaintiff has not otherwise 9 alleged that she could only have been fired for cause. While the foregoing analysis assumes 10 that Plaintiff was, in essence, terminated, the Court is dubious of whether Plaintiff’s bare 11 allegation that she resigned under threat of termination constitutes a termination for due 12 process purposes. 13 The Court turns next to Plaintiff’s allegation that Defendant’s conduct caused her 14 to return to employment with AZDES in a different division at a lower rate of pay. The 15 Court recognizes that a public employee can be deprived of a liberty interest where “[a] 16 public employer . . . terminat[es] the employee if in so doing, the employer makes a charge 17 that might seriously damage the terminated employee’s standing and associations in his 18 community or imposes on a terminated employee a stigma or other disability that forecloses 19 his freedom to take advantage of other opportunities.” Blantz, 727 F.3d at 925 (citation 20 modified). Even assuming Defendant’s alleged misidentification implicates such 21 jurisprudence, Plaintiff did not suffer such a liberty deprivation because she was rehired by 22 AZDEP. It is immaterial that Plaintiff was rehired at reduced pay because “‘reduced 23 economic returns and diminished prestige, but not permanent exclusion from, or protracted 24 interruption of, gainful employment within the trade or profession’ do not constitute a 25 deprivation of liberty.” Id. (quoting Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 26 366 (9th Cir. 1976)). 27 The Court additionally finds that the Plaintiff’s remaining alleged harms do not rise 28 to the level of being a deprivation of life, liberty, or property. Plaintiff alleges that she was 1 “compelled to withdraw funds from her retirement in order to obtain defense counsel.” 2 (Doc. 1 at 7.) The Court does not find, nor does Plaintiff cite, any authority that her 3 decision to hire counsel prior to arraignment implicates a constitutionally protected right 4 under the Fourteenth Amendment. 5 Plaintiff also alleges that Defendant’s investigation, and the resulting criminal 6 charge, “significantly disrupted” “[h]er life with her immediate family, grandkids, and 7 friends.” While interference in certain familial relationships can implicate due process 8 concerns, Plaintiff fails to raise such concerns. See, e.g., Keates v. Koile, 883 F.3d 1228, 9 1236 (9th Cir. 2018). Plaintiff does not establish, even cursorily, how Defendant interfered 10 with her family relationships. Additionally, it is unclear how a state actor identifying an 11 unknown suspect through a driver’s license photo, even mistakenly, could implicate such 12 concerns where the suspect is neither held in custody nor subject to criminal or civil 13 penalties. 14 Finally, Plaintiff alleges that Defendant caused her “feelings of depression, anxiety, 15 fear, anger, and humiliation.” (Doc. 1at and otherwise caused her to lose “sleep, focus” 16 and otherwise resulted in “social isolation, and alienation from family.” (Doc. 1 at 8.) The 17 Court finds no authority suggesting that the foregoing allegations implicate a 18 constitutionally protected right under the Fourteenth Amendment. Nor has Plaintiff linked 19 these allegations to such a right if asserted as injuries. 20 Accordingly, Plaintiff has failed pass the threshold of alleging that Defendant has 21 deprived her of a constitutionally protected right. See Guillen-Cervantes, 748 F.3d at 872. 22 The Court thus finds that Plaintiff has failed to state a claim under § 1983 for deprivation 23 of her rights under the Fourth and Fourteenth Amendments. Thus, her claim for punitive 24 damages also fails. See Alvarez v. CSAA Gen. Ins. Co., No. CV-24-00617-PHX-SMB, 25 2025 WL 389140, at *8 (D. Ariz. Feb. 4, 2025) (“If a party fails to sustain a claim for an 26 underlying tort, a claim for punitive damages will not stand.”). 27 C. Qualified Immunity 28 Additionally, the Court agrees with Defendant’s argument that the qualified 1 immunity doctrine otherwise shields him from suit. “The doctrine of qualified immunity 2 protects government officials ‘from liability for civil damages insofar as their conduct does 3 not violate clearly established statutory or constitutional rights of which a reasonable 4 person would have known.’” Estate of Lopez ex rel. Lopez v. Gelhaus, 817 F.3d 998, 1005 5 (9th Cir. 2017) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “In determining 6 whether an officer is entitled to qualified immunity, we consider (1) whether there has been 7 a violation of a constitutional right; and (2) whether that right was clearly established at 8 the time of the officer's alleged misconduct.” Id. (quoting Lal v. California, 746 F.3d 1112, 9 1116 (9th Cir. 2014)). While this Court has found that there was no violation of a 10 constitutional right, as discussed below the Court also finds that there was no clearly 11 established right. 12 Whether a right was “clearly established” is “solely a question of law for the judge.” 13 Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (quoting Tortu v. L.V. Metro. Police 14 Dept., 556 F.3d 1075, 1085 (9th Cir. 2009)). And Plaintiff “bears the burden of proof 15 regarding whether the right is clearly established.” DiRuzza v. County of Tehama, 206 F.3d 16 1304, 1313 (9th Cir. 2000). Unless “officers of reasonable competence could disagree on 17 the issue whether a chosen course of action is constitutional, immunity should be 18 recognized.” Biggs v. Best, Best & Krieger, 189 F.3d 989, 993 (9th Cir. 1999) (citation 19 modified). 20 However, “[t]he Supreme Court has repeatedly instructed that we examine ‘whether 21 the violative nature of particular conduct is clearly established’ by controlling precedent, 22 not whether the conduct violates a general principle of law.” Sharp v. County of Orange, 23 871 F.3d 901, 910 (9th Cir. 2017) (emphasis in original) (quoting Mullenix v. Luna, 577 24 U.S. 7, 12 (2015)). Consequently, even when precedent establishes a “general rule,” courts 25 “cannot simply apply that general rule to the facts of [the present] case.” Id. at 910–11. 26 “Except in the rare case of an ‘obvious’ instance of constitutional misconduct,” a plaintiff 27 “must ‘identify a case where an officer acting under similar circumstances as [defendants] 28 1 was held to have violated the Fourth Amendment.’” Id. at 911 (alteration in original) 2 (emphasis in original) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). 3 Put differently, a plaintiff “must point to prior case law that articulates a 4 constitutional rule specific enough to alert these [officers] in this case that their particular 5 conduct was unlawful.” Id. (emphasis in original). This notice requires that the prior 6 precedent be “‘controlling’—from the Ninth Circuit or Supreme Court—or otherwise be 7 embraced by a ‘consensus’ of courts outside the relevant jurisdiction.” Id. (quoting Wilson 8 v. Layne, 526 U.S. 603, 617 (1999)). 9 Plaintiff has not met this burden here. Plaintiff has not pointed to a sufficiently 10 analogous case. Plaintiff argues that Ochser v. Funk, 228 P.3d 1061 (Ariz. 2011) clearly 11 establishes that Defendant violated her constitutional rights. (Doc. 13 at 10.) There, law 12 enforcement went to arrest a man pursuant to a quashed warrant that showed as active in 13 law enforcement records. Id. at 1064. The man “told the [officers] that he had a certified 14 copy of the court’s minute entry quashing the warrant in the inbox at his office, about 15 twenty yards from the scene of the arrest.” Id. Law enforcement still arrested him. Id. 16 The court found that law enforcement violated the man’s Fourth Amendment rights. Id. 17 at 1067. The court noted that when “law enforcement officers arrest someone pursuant to 18 a warrant and are confronted with readily available information that objectively casts 19 genuine doubt on the warrant's validity, the officers must undertake further reasonable 20 inquiry.” Id. 21 Ochser does not “clearly establish” that a reasonable official in Defendant’s position 22 would have understood that they were violating Plaintiff’s Fourth Amendment rights. To 23 start, Ochser involved an officer making an arrest based on an invalid warrant. See id. 24 Here, Plaintiff was not arrested, and Defendant played no part in the procurement or 25 execution of warrant. Furthermore, Ochser does not discuss an undercover officer’s 26 obligations in identification of an unknown suspect from a driver’s license photograph. 27 Instead, Ochser merely requires officials to consider readily accessible information that 28 “objectively casts genuine doubt” on the validity of an arrest, which is clearly a “seizure” 1 || under the Fourth Amendment. See id. 2\| IV. LEAVE TO AMEND 3 Federal Rule of Civil Procedure 15(a) requires that leave to amend be “freely give[n] 4|| when justice so requires.” Leave to amend should not be denied unless “the proposed 5 || amendment either lacks merit or would not serve any purpose because to grant it would be 6|| futile in saving the plaintiff's suit.” Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 7\| 458, 459 (9th Cir. 1986). Therefore, ‘“‘a district court should grant leave to amend even if 8 || no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). V. CONCLUSION 12 For the above reasons, 13 IT IS HEREBY ORDERED granting Defendant’s Motion to Dismiss (Doc. 10) with leave for Plaintiff to amend her Complaint. If Plaintiff so chooses, she shall file an 15 || Amended Complaint no later than thirty (30) days after the date this Order is issued. 16 IT IS FURTHER ORDERED that if Plaintiff does not file an Amended Complaint || within thirty (30) days of the date this Order is entered, the Clerk of Court shall dismiss this action without further order of this Court. 19 Dated this 10th day of September, 2025. 20 —__ . 21 SO ts 22 soarapig Susan 6 Brpoyich 23 24 25 26 27 28

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