Hinton v. Cochise, County of

• Court: District Court, D. Arizona
• Decided: June 13, 2025
• Docket: 4:23-cv-00482
• Status: Unknown

Opinion

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

9 Marcus Hinton, et al., No. CV-23-00482-TUC-JAS (MSA)

10 Plaintiffs, REPORT AND RECOMMENDATION 11 v.

12 County of Cochise, et al.,

13 Defendants. 14 15 Plaintiffs Marcus, Vanessa, and Veronica Hinton bring this lawsuit against twenty- 16 four Defendants. Before the Court is the six County Defendants’ motion to dismiss the first 17 amended complaint. The Court will recommend that the motion be granted. The Court will 18 further recommend that sixteen of the remaining Defendants be dismissed for failure to 19 serve and failure to state a claim.1 20 I. Factual Allegations 21 The first amended complaint contains the following allegations: Plaintiffs rented a 22 home from Doni and William Maers under a lease-to-own agreement. (Doc. 101, ¶ 3.) They 23 remained in good standing under the agreement at all relevant times. (Id.) Plaintiffs had 24 contracts with Walmart and Sam’s Club and used ingredients grown on the rental property 25 1 The Court intended to recommend dismissal of the Maerses with prejudice pursuant 26 to the bankruptcy court’s order of discharge, which discharges the Maerses’ liability on Plaintiffs’ claims. (Doc. 107; see Docs. 8, 19 in 24-bk-05191-BMW.) However, on June 9, 27 2025, Plaintiffs filed an adversary complaint to reverse the discharge. (Doc. 1 in 25-ap- 00178-BMW.) The bankruptcy judge has given Plaintiffs thirty days to move to reopen the 28 underlying bankruptcy proceeding. (Doc. 2 in 25-ap-00178-BMW.) As such, the Court will not yet issue a recommendation regarding the Maerses. 1 to fulfill the orders. (Id. ¶ 4.) 2 On November 17, 2021, Plaintiffs were working in their barn when they noticed a 3 fire on the other side of the property. (Id. ¶ 5.) Plaintiffs rushed over to the fire and saw 4 that “the sheriffs and other officials” were there removing Plaintiffs’ personal property. 5 (Id.) The “fire chief” told Plaintiffs that they had to be escorted off the property for safety 6 reasons, and they were driven down the road and dropped off to wait for an Uber. (Id.) 7 Plaintiffs were never given information about the source of the fire or about where their 8 personal items were taken. (Id.) 9 After that date, Plaintiffs were allowed temporary and limited access to the rental 10 property up until December 1, 2021. (Id.) During that time, Plaintiffs returned to feed their 11 animals and relock the property after multiple break-ins by “the county and sheriffs.” (Id.) 12 On November 25, William Maers called Plaintiffs and stated that he and Doni Maers were 13 taking the property back. (Id.) Plaintiffs were never served with a notice of eviction. (Id.) 14 Plaintiffs were called racial slurs while being illegally evicted. (Id.) 15 Plaintiffs posted an offer of reward for the return of their stolen property. (Id. ¶ 6.) 16 “Law enforcement” contacted Plaintiffs to ask them to take the post down and to direct 17 them to an address in Benson, Arizona to identify trailers of stolen property. (Id.) On 18 December 1, “Benson police” violated Plaintiffs’ rights, and Plaintiffs returned to their 19 rental property to check for further break-ins. (Id.) While leaving the property, Plaintiffs 20 saw “the county, the sheriffs, and the individuals in plain clothes in Benson” heading 21 toward their property. (Id.) Plaintiffs caught “the county, the sheriffs and these plain clothes 22 individuals” planting “machinery, weapons, and drugs” on the rental property. (Id.) They 23 also saw “law enforcement officials” loading up more of their personal property. (Id. ¶ 7.) 24 Plaintiffs allege two civil rights claims, one under the Fourth Amendment, the other 25 under the Fourteenth Amendment; a claim under the Racketeer Influenced and Corrupt 26 Organizations Act (RICO); and a claim of housing discrimination. (Id. ¶¶ 10–13.) 27 . . . . 28 . . . . 1 II. Discussion 2 A. The County Defendants’ Motion to Dismiss 3 1. Section 1983 – Fourth Amendment and Due Process 4 “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) 5 that a right secured by the Constitution or laws of the United States was violated, and (2) 6 that the alleged violation was committed by a person acting under the color of State law.” 7 Benavidez v. County of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021) (quoting Long v. 8 County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006)). Plaintiffs allege § 1983 9 claims against Cochise County, the Cochise County Fire Chief, the Cochise County Sheriff, 10 Curtis Watkins, Robert Watkins, and Sergeant Tal Parker. 11 Cochise County. As a municipality, Cochise County cannot be held liable “under 12 § 1983 solely because an injury was inflicted by its employees or agents.” Long, 442 F.3d 13 at 1185 (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Cochise County 14 can be held liable only for constitutional violations that result from “(1) official policies; 15 (2) pervasive practices or customs; (3) failures to train, supervise, or discipline; or (4) 16 decisions or acts by policymakers.” Sabbe v. Wash. Cnty. Bd. of Comm’rs, 84 F.4th 807, 17 829 (9th Cir. 2023) (citing Monell, 436 U.S. at 690–95). The County Defendants argue that 18 Plaintiffs have not alleged any basis for municipal liability. (Doc. 108 at 6–7.) The Court 19 agrees. Plaintiffs allege that they were harmed by unidentified county officials, but they do 20 not allege facts indicating that those officials’ actions were the result of an official policy, 21 an unofficial custom, a policymaker’s decision, or a failure to train, supervise, or discipline. 22 As such, Plaintiffs fail to state a claim against Cochise County. 23 Fire Chief. The County Defendants point out that the only allegation involving the 24 Fire Chief is that he had Plaintiffs escorted off the scene of an active fire for safety reasons. 25 (Doc. 108 at 5; Doc. 101, ¶ 5.) They argue that that allegation does not state a plausible 26 claim against the Fire Chief. (Doc. 108 at 5.) The Court agrees. The Fire Chief’s alleged 27 conduct was reasonable and does not support the inference that he or she violated Plaintiffs’ 28 Fourth Amendment rights or right to due process. Thus, Plaintiffs fail to state a claim 1 against the Fire Chief. 2 Sheriff, Curtis Watkins, Robert Watkins, and Sergeant Tal Parker. The County 3 Defendants argue that there are no allegations whatsoever about these individuals, and that 4 Plaintiffs have therefore failed to state a claim against them. (Doc. 108 at 5.) The Court 5 agrees. Plaintiffs were previously informed that, when alleging a § 1983 claim, it is not 6 proper to refer to all Defendants generally. (Doc. 94 at 13.) This is because the statute 7 creates liability only for those who “subject” another to a constitutional violation, 8 42 U.S.C. § 1983, and the word “subject” means to “do[] an affirmative act, participate[] 9 in another’s affirmative acts, or omit[] to perform an act which he is legally required to 10 do,” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). If there are no allegations about 11 what a defendant did or did not do, then it cannot be inferred that the defendant “subjected” 12 the plaintiff to a constitutional violation. Here, Plaintiffs refer generally to “sheriffs” and 13 “law enforcement.” There are no allegations about what each named Defendant did or did 14 not do. As a result, Plaintiffs fail to state a claim. 15 The County Defendants also assert that they are entitled to qualified immunity. They 16 argue that because the first amended complaint “does not plausibly allege a factual basis 17 for any constitutional violation against any of the individual Cochise County Defendants” 18 that the complaint also fails to allege “conduct that violates clearly established law.” 19 (Doc. 108 at 9.) This argument is not persuasive. “For a court to determine that a state actor 20 is not entitled to qualified immunity under section 1983, there must be a constitutional 21 violation on the facts alleged, and the constitutional right violated must be ‘clearly 22 established.’” Benavidez, 993 F.3d at 1151 (quoting Saucier v. Katz, 533 U.S. 194, 201 23 (2001)). The Court cannot determine whether the constitutional right violated is clearly 24 established if there is no violation of a right to begin with. See id. (moving on to the clearly- 25 established prong only after finding that the complaint plausibly alleged a constitutional 26 violation). Thus, the Court will recommend deferring on the qualified-immunity analysis. 27 . . . . 28 . . . . 1 2. RICO 2 A RICO claim has five elements: “(1) conduct (2) of an enterprise (3) through a 3 pattern (4) of racketeering activity (known as ‘predicate acts’) (5) causing injury to 4 plaintiff’s business or property.” Glob. Master Int’l Grp. v. Esmond Nat., Inc., 76 F.4th 5 1266, 1271 (9th Cir. 2023) (quoting United Bhd. of Carpenters. v. Bldg. & Constr. Trades 6 Dep’t, 770 F.3d 834, 837 (9th Cir. 2014)). The County Defendants argue that Plaintiffs fail 7 to allege any predicate acts. (Doc. 108 at 11.) The Court agrees. Plaintiffs allege that the 8 County Defendants committed robbery in violation of state law. But robbery requires 9 threats of force or use of force, and there is no allegation that any of the named County 10 Defendants threatened or used force (or did anything else). A.R.S. § 13-1902(A). Plaintiffs 11 also allege that the County Defendants “engag[ed] in a monetary transaction in criminally 12 derived property” in violation of 18 U.S.C. § 1957(a), but there is no allegation that the 13 named County Defendants sold any property (or did anything else). Thus, the County 14 Defendants are correct that Plaintiffs offer “only threadbare and conclusory allegations” of 15 predicate acts. (Doc. 108 at 11.) Plaintiffs thus fail to state a RICO claim. 16 3. Fair Housing Act 17 As relevant here, the Fair Housing Act makes it unlawful “[t]o refuse to sell or rent 18 after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or 19 otherwise make unavailable or deny, a dwelling to any person because of race, color, 20 religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a). The County 21 Defendants argue that Plaintiffs make “no plausible allegation any Cochise County 22 Defendant refused to sell or rent a dwelling after making a bona fide offer, or refused to 23 negotiate for the sale or rental of a property, or make it unavailable or deny access, due to 24 race.” (Doc. 108 at 11–12.) The Court agrees. Plaintiffs allege vaguely that “racial epithets 25 were directed” at them on December 1. While that is reprehensible, it does not support the 26 inference that the County Defendants, who are not alleged to have had any authority to sell 27 or rent the property, engaged in housing discrimination based on Plaintiffs’ race. Thus, 28 Plaintiffs fail to state a claim. 1 * * * 2 Plaintiffs fail to state a claim against the County Defendants. Therefore, the Court 3 will recommend that the County Defendants’ motion to dismiss be granted. 4 B. Sua Sponte Dismissal of Sixteen Defendants 5 The first amended complaint names the following Defendants: Mark Brnovich, Jane 6 and John Does, Gregory G. McGill, Matt McGregor, Mark Kelly, Eric DeRosia, Joshua 7 Turner, Tim Shay, Wilcox Arizona Mayor, Douglas Police Department Chief of Police, 8 Benson Police Department Chief of Police, Linda Bohlke, Stephen Scott, Sabrina Doe, and 9 Amy Doe. More than 90 days have passed since the filing of the complaint, and Plaintiffs 10 have not filed proof of service or waivers of service as to these Defendants. The Court 11 notified Plaintiffs that Defendants would be dismissed without prejudice unless Plaintiffs 12 showed good cause for their failure to serve. 13 “At a minimum, ‘good cause’ means excusable neglect.” Boudette v. Barnette, 923 14 F.2d 754, 756 (9th Cir. 1991). Good cause may also require showing that “(a) the party to 15 be served personally received actual notice of the lawsuit; (b) the defendant would suffer 16 no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were 17 dismissed.” Id. (citing Hart v. United States, 817 F.2d 78, 80–81 (9th Cir. 1987) (per 18 curiam)). In this case, Plaintiffs assert that they “intentionally delayed” serving Defendants 19 “while waiting for discovery and settlement responses.” (Doc. 150.) Such intentional delay 20 does not constitute good cause under the standards set forth above. 21 Plaintiffs also were notified that they failed to state a claim against Defendants. 22 Plaintiffs do not object or otherwise respond to this conclusion. Therefore, the Court will 23 also recommend that Defendants be dismissed for failure to state a claim. 24 C. Leave to Amend 25 “A district court should not dismiss a pro se complaint without leave to amend 26 unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 27 amendment.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. 28 Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1998) (per curiam)). In the first report and 1 recommendation, the Court explained that Plaintiffs’ first amended complained needed 2 more factual content than the original complaint. The Court instructed Plaintiffs to identify 3 what each Defendant did and explain how each Defendant’s actions injured Plaintiffs. 4 (Doc. 94 at 12–13.) Plaintiffs failed to follow those instructions, and the Court has doubts 5 that they would follow them in a second amended complaint. Still, the Court does not 6 believe it is “absolutely clear” that amendment would be futile. As before, the lack of 7 factual content is the problem, and that problem can be cured by the addition of facts, if 8 Plaintiffs have them. The Court will recommend granting leave to amend once more.2 9 If such leave is granted, then Plaintiffs must identify each Defendant in the caption 10 of the complaint. If a person mentioned in the body of the complaint is not listed in the 11 caption, then the Court will presume that he or she is not a defendant. 12 The complaint must contain “a short and plain statement of the claim showing that 13 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiffs’ allegations must be 14 “simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). As this is a civil rights case, Plaintiffs’ 15 short, plain statements must tell the Court (1) the right they believe was violated, (2) the 16 name of the defendant who violated that right, (3) exactly what that defendant did or failed 17 to do, (4) how that defendant’s action or inaction is connected to the violation of their 18 rights, and (5) what specific injury they suffered because of that defendant’s action or 19 inaction. It is not proper to refer to all defendants generally. See Robbins v. Oklahoma, 20 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint’s use of either the collective 21 term ‘Defendants’ or a list of the defendants named individually but with no distinction as 22 to what acts are attributable to whom, it is impossible for any of these individuals to 23 ascertain what particular unconstitutional acts they are alleged to have committed.”). 24 III. Conclusion 25 The Court recommends that (1) the motion to dismiss (Doc. 108) be granted and 26 that the first amended complaint be dismissed without prejudice as to Defendants Cochise 27 2 This is not an order authorizing Plaintiffs to file a second amended complaint. It is 28 a recommendation directed to Judge Soto. Plaintiffs may not file a second amended complaint unless Judge Soto gives them permission to do so. |} County, Cochise County Sheriff, Curtis L. Watkins, Robert Watkins, Sergeant Tal Parker, || and Cochise County Fire Chief; (2) that Defendants Mark Brnovich, Jane and John Does, || Gregory G. McGill, Matt McGregor, Mark Kelly, Eric DeRosia, Joshua Turner, Tim Shay, Wilcox Arizona Mayor, Douglas Police Department Chief of Police, Benson Police || Department Chief of Police, Linda Bohlke, Stephen Scott, Sabrina Doe, and Amy Doe be || dismissed without prejudice; and (3) that Plaintiffs be granted leave to file a second amended complaint. 8 This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections 10 || with the district court. Fed. R. Civ. P. 72(b)(2). The parties have 14 days to file responses 11 || to objections. Jd. Objections and responses to objections may not exceed ten pages in length. LRCiv 7.2(e)(3). The parties may not file replies on objections absent the district 13 || court’s permission. A failure to file timely objections may result in the waiver of de novo 14]| review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 15 Dated this 12th day of June, 2025. 16 S .

18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28

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