1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lucifer Valdez Luna, No. CV-26-04288-PHX-KML
10 Plaintiff, ORDER
11 v.
12 MidFirst Bank, et al.,
13 Defendants. 14 15 Plaintiff Lucifer Valdez Luna filed a complaint and an application for leave to 16 proceed in forma pauperis. (Doc. 2.) The application is granted, which requires the court 17 determine whether the complaint states any claim for relief. 28 U.S.C. § 1915(e)(2)(B)(ii). 18 It does not. 19 BACKGROUND 20 Luna “suffers from Psychogenic Non-Epileptic Seizures” which may result in 21 seizures due to “extreme or prolonged sun exposure.” (Doc. 1 at 4-5.) On April 10, 2026, 22 Luna was waiting near a bus stop when they1 sought “medically necessary shade on a 23 perimeter wall located directly adjacent” to the bus stop. (Doc. 1 at 5.) That wall appears 24 to be on property owned by defendant MidFirst Bank. Luna sat on the wall, as they had 25 previously done “routinely and without issue.” (Doc. 1 at 5.) A security guard employed 26 by defendant Allied Universal approached Luna and “attempted to explicitly order [Luna] 27 off of the easement, directing [Luna] to specifically sit at the bus stop.” (Doc. 1 at 5.) Luna 28 1 The complaint uses “they” when referring to Luna and the court does the same. 1 stated they had used the location previously and the guard informed Luna they “could lean 2 on the perimeter wall, but not sit.” (Doc. 1 at 5.) Luna asked the guard for a “bank manager 3 to explain the situation,” but the guard went inside the bank. (Doc. 1 at 5.) 4 Once inside, the guard spoke on the phone and “then returned outside to again order 5 [Luna] over to the bus stop.” (Doc. 1 at 6.) The “guard threatened to call the police and 6 have [Luna] arrested for trespassing.” (Doc. 1 at 6.) Luna attempted to speak to the bank 7 manager, but the guard blocked Luna from “directly communicating” with the manager. 8 (Doc. 1 at 6.) 9 Later that day, Luna sent an email to MidFirst regarding the incident. A MidFirst 10 employee responded with “a brief, non-committal response, and a vague promise to look 11 into the matter.” (Doc. 1 at 8.) Luna sent a follow-up email that included what Luna 12 “requested for resolution.” (Doc. 1 at 9.) An Allied Universal employee sent an email to 13 Luna that same day, providing a “vague apology.” (Doc. 1 at 9.) A MidFirst regional 14 manager sent a response to Luna’s follow-up email, stating the guard was not employed by 15 MidFirst. 16 Luna alleges the guard’s actions, as well as “the lack of active, prompt cooperation, 17 and lack of acknowledgement of the severity of the incident” caused a breakthrough 18 seizure. (Doc. 1 at 10.) The guard’s actions and resulting seizure “forced a total halt of 19 [Luna’s] operational businesses” and interfered with Luna’s ability to provide their 20 “freelance pet-sitting services.” (Doc. 1 at 11-12.) Luna sent written demands to MidFirst 21 and Allied Universal seeking, among other forms of relief, a “base settlement of $46,160.” 22 (Doc. 1 at 12.) Luna did not receive a response from either entity. 23 Luna alleges four claims based on these facts. First, “negligence” based on both 24 defendants “deploy[ing] hostile personnel to arbitrarily enforce an alleged, unverified 25 policy related to a public easement.” (Doc. 1 at 13-14.) Second, intentional infliction of 26 emotional distress based on the guard’s “extreme and outrageous conduct by accosting, 27 harassing, and verbally intimidating a citizen on a public perimeter.” (Doc. 1 at 14.) Third, 28 “personal injury” based on defendants’ refusal “to reach a satisfactory resolution” after the 1 incident at the bus stop. And fourth, “Title III Americans with Disabilities Act Violation” 2 based on defendants “actively blocking access to life-preserving, medically necessary 3 shade.” (Doc. 1 at 15.) 4 ANALYSIS 5 When a plaintiff is proceeding in forma pauperis, the complaint may proceed only 6 if it “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is 7 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (simplified). This is not 8 a “probability requirement,” but a requirement that the factual allegations show “more than 9 a sheer possibility that a defendant has acted unlawfully.” Id. A claim is facially plausible 10 “when the plaintiff pleads factual content that allows the court to draw the reasonable 11 inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether 12 a complaint states a plausible claim for relief . . . [is] a context-specific task that requires 13 the reviewing court to draw on its judicial experience and common sense.” Id. at 679. “It 14 is not the job of the district courts to make sense of the pleading, to supply facts to support 15 the claim, or to imagine the claims that might fit the facts.” Gibson v. City of Portland, 165 16 F.4th 1265, 1289 (9th Cir. 2026). 17 I. Negligence 18 Luna’s first claim is for “negligence.” The basis of this claim appears to be 19 intentional, not negligent, actions. That is, Luna alleges defendants “deployed hostile 20 personnel to arbitrarily enforce an alleged, unverified policy related to a public easement.” 21 (Doc. 1 at 13-14.) Arizona law provides “negligence and intent are mutually exclusive 22 grounds for liability.” Ryan v. Napier, 425 P.3d 230, 236 (Ariz. 2018). An intentional tort 23 requires “the actor desires to cause [the] consequences of his act, or that he believes that 24 the consequences are substantially certain to result from it.” Id. at 235. For example, “if a 25 defendant acts with the intent to cause a harmful or offensive touching (battery), that same 26 act cannot constitute negligence.” Id. at 236. Here, all of Luna’s allegations involve 27 intentional acts by MidFirst and Allied Universal employees. Because there are no 28 allegations of negligence, this claim is dismissed with leave to amend. 1 II. Intentional Infliction of Emotional Distress 2 Luna’s second claim is for intentional infliction of emotional distress. The standard 3 for this claim is difficult to meet because it requires allegations of “extreme and outrageous 4 conduct.” Christakis v. Deitsch, 478 P.3d 241, 245 (Ariz. Ct. App. 2020). To qualify, the 5 conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all 6 possible bounds of decency” such that it is “regarded as atrocious and utterly intolerable in 7 a civilized community.” Id. (simplified). The “conduct must completely violate human 8 dignity and strike to the very core of one’s being, threatening to shatter the frame upon 9 which one’s emotional fabric is hung. It does not include mere insults, indignities, threats, 10 annoyances, petty oppressions, or other trivialities.” Id. (simplified). 11 Luna alleges a guard told them to stop sitting on a wall and threatened to call the 12 police if Luna refused to relocate. (Doc. 1 at 14.) Luna later had contact with other MidFirst 13 and Allied Universal employees, and those responses did not meet Luna’s expectations. 14 These actions are not close to establishing a viable claim for intentional infliction of 15 emotional distress. This claim is dismissed with leave to amend. 16 III. Personal Injury 17 Luna’s third claim is for “personal injury.” (Doc. 1 at 15.) The court is unable to 18 determine the legal basis for this claim. The complaint seems to base this claim on a seizure 19 Luna experienced after they failed “to reach a satisfactory resolution following the April 20 10th incident.” (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lucifer Valdez Luna, No. CV-26-04288-PHX-KML
10 Plaintiff, ORDER
11 v.
12 MidFirst Bank, et al.,
13 Defendants. 14 15 Plaintiff Lucifer Valdez Luna filed a complaint and an application for leave to 16 proceed in forma pauperis. (Doc. 2.) The application is granted, which requires the court 17 determine whether the complaint states any claim for relief. 28 U.S.C. § 1915(e)(2)(B)(ii). 18 It does not. 19 BACKGROUND 20 Luna “suffers from Psychogenic Non-Epileptic Seizures” which may result in 21 seizures due to “extreme or prolonged sun exposure.” (Doc. 1 at 4-5.) On April 10, 2026, 22 Luna was waiting near a bus stop when they1 sought “medically necessary shade on a 23 perimeter wall located directly adjacent” to the bus stop. (Doc. 1 at 5.) That wall appears 24 to be on property owned by defendant MidFirst Bank. Luna sat on the wall, as they had 25 previously done “routinely and without issue.” (Doc. 1 at 5.) A security guard employed 26 by defendant Allied Universal approached Luna and “attempted to explicitly order [Luna] 27 off of the easement, directing [Luna] to specifically sit at the bus stop.” (Doc. 1 at 5.) Luna 28 1 The complaint uses “they” when referring to Luna and the court does the same. 1 stated they had used the location previously and the guard informed Luna they “could lean 2 on the perimeter wall, but not sit.” (Doc. 1 at 5.) Luna asked the guard for a “bank manager 3 to explain the situation,” but the guard went inside the bank. (Doc. 1 at 5.) 4 Once inside, the guard spoke on the phone and “then returned outside to again order 5 [Luna] over to the bus stop.” (Doc. 1 at 6.) The “guard threatened to call the police and 6 have [Luna] arrested for trespassing.” (Doc. 1 at 6.) Luna attempted to speak to the bank 7 manager, but the guard blocked Luna from “directly communicating” with the manager. 8 (Doc. 1 at 6.) 9 Later that day, Luna sent an email to MidFirst regarding the incident. A MidFirst 10 employee responded with “a brief, non-committal response, and a vague promise to look 11 into the matter.” (Doc. 1 at 8.) Luna sent a follow-up email that included what Luna 12 “requested for resolution.” (Doc. 1 at 9.) An Allied Universal employee sent an email to 13 Luna that same day, providing a “vague apology.” (Doc. 1 at 9.) A MidFirst regional 14 manager sent a response to Luna’s follow-up email, stating the guard was not employed by 15 MidFirst. 16 Luna alleges the guard’s actions, as well as “the lack of active, prompt cooperation, 17 and lack of acknowledgement of the severity of the incident” caused a breakthrough 18 seizure. (Doc. 1 at 10.) The guard’s actions and resulting seizure “forced a total halt of 19 [Luna’s] operational businesses” and interfered with Luna’s ability to provide their 20 “freelance pet-sitting services.” (Doc. 1 at 11-12.) Luna sent written demands to MidFirst 21 and Allied Universal seeking, among other forms of relief, a “base settlement of $46,160.” 22 (Doc. 1 at 12.) Luna did not receive a response from either entity. 23 Luna alleges four claims based on these facts. First, “negligence” based on both 24 defendants “deploy[ing] hostile personnel to arbitrarily enforce an alleged, unverified 25 policy related to a public easement.” (Doc. 1 at 13-14.) Second, intentional infliction of 26 emotional distress based on the guard’s “extreme and outrageous conduct by accosting, 27 harassing, and verbally intimidating a citizen on a public perimeter.” (Doc. 1 at 14.) Third, 28 “personal injury” based on defendants’ refusal “to reach a satisfactory resolution” after the 1 incident at the bus stop. And fourth, “Title III Americans with Disabilities Act Violation” 2 based on defendants “actively blocking access to life-preserving, medically necessary 3 shade.” (Doc. 1 at 15.) 4 ANALYSIS 5 When a plaintiff is proceeding in forma pauperis, the complaint may proceed only 6 if it “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is 7 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (simplified). This is not 8 a “probability requirement,” but a requirement that the factual allegations show “more than 9 a sheer possibility that a defendant has acted unlawfully.” Id. A claim is facially plausible 10 “when the plaintiff pleads factual content that allows the court to draw the reasonable 11 inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether 12 a complaint states a plausible claim for relief . . . [is] a context-specific task that requires 13 the reviewing court to draw on its judicial experience and common sense.” Id. at 679. “It 14 is not the job of the district courts to make sense of the pleading, to supply facts to support 15 the claim, or to imagine the claims that might fit the facts.” Gibson v. City of Portland, 165 16 F.4th 1265, 1289 (9th Cir. 2026). 17 I. Negligence 18 Luna’s first claim is for “negligence.” The basis of this claim appears to be 19 intentional, not negligent, actions. That is, Luna alleges defendants “deployed hostile 20 personnel to arbitrarily enforce an alleged, unverified policy related to a public easement.” 21 (Doc. 1 at 13-14.) Arizona law provides “negligence and intent are mutually exclusive 22 grounds for liability.” Ryan v. Napier, 425 P.3d 230, 236 (Ariz. 2018). An intentional tort 23 requires “the actor desires to cause [the] consequences of his act, or that he believes that 24 the consequences are substantially certain to result from it.” Id. at 235. For example, “if a 25 defendant acts with the intent to cause a harmful or offensive touching (battery), that same 26 act cannot constitute negligence.” Id. at 236. Here, all of Luna’s allegations involve 27 intentional acts by MidFirst and Allied Universal employees. Because there are no 28 allegations of negligence, this claim is dismissed with leave to amend. 1 II. Intentional Infliction of Emotional Distress 2 Luna’s second claim is for intentional infliction of emotional distress. The standard 3 for this claim is difficult to meet because it requires allegations of “extreme and outrageous 4 conduct.” Christakis v. Deitsch, 478 P.3d 241, 245 (Ariz. Ct. App. 2020). To qualify, the 5 conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all 6 possible bounds of decency” such that it is “regarded as atrocious and utterly intolerable in 7 a civilized community.” Id. (simplified). The “conduct must completely violate human 8 dignity and strike to the very core of one’s being, threatening to shatter the frame upon 9 which one’s emotional fabric is hung. It does not include mere insults, indignities, threats, 10 annoyances, petty oppressions, or other trivialities.” Id. (simplified). 11 Luna alleges a guard told them to stop sitting on a wall and threatened to call the 12 police if Luna refused to relocate. (Doc. 1 at 14.) Luna later had contact with other MidFirst 13 and Allied Universal employees, and those responses did not meet Luna’s expectations. 14 These actions are not close to establishing a viable claim for intentional infliction of 15 emotional distress. This claim is dismissed with leave to amend. 16 III. Personal Injury 17 Luna’s third claim is for “personal injury.” (Doc. 1 at 15.) The court is unable to 18 determine the legal basis for this claim. The complaint seems to base this claim on a seizure 19 Luna experienced after they failed “to reach a satisfactory resolution following the April 20 10th incident.” (Doc. 1 at 15.) In other words, Luna is asserting this “personal injury” claim 21 based on defendants’ failure to settle with them before this suit was filed. Luna has not 22 provided any indication what legal theory might require defendants to have reached “a 23 satisfactory resolution” based on Luna’s demands. This claim is dismissed without leave 24 to amend. 25 IV. Title III ADA 26 Luna’s final claim is defendants violated the ADA by not allowing them to sit on 27 the wall next to the bus stop. This claim suffers from three obvious flaws, one regarding 28 standing and two regarding the merits. 1 First, “[p]rivate plaintiffs are limited to seeking injunctive relief under Title III of 2 the ADA, so a plaintiff suing a place of public accommodation must show a sufficient 3 likelihood of injury in the future to establish standing.” Langer v. Kiser, 57 F.4th 1085, 4 1092 (9th Cir. 2023). This means previously “[e]ncountering ADA violations at a place of 5 public accommodation . . . is not itself sufficient for standing.” Id. To establish standing to 6 proceed on this claim, Luna would need allegations that they intend to return to the bus 7 stop, intend to seek shade again by sitting, and MidFirst’s hired security will prohibit them 8 from doing so. Id. at 1094. That sequence of events seems implausible, but its plausibility 9 need not be assessed yet because Luna has not even alleged this sequence of events. The 10 present allegations are not sufficient to establish Luna’s standing. 11 The first merits-based flaw with Luna’s ADA theory is that the wall next to the bus 12 stop does not appear to be a place of public accommodation, nor does it appear to qualify 13 as a “‘facility’ encompassed in the ‘goods, services, facilities, privileges, advantages, or 14 accommodations’ offered by a place of public accommodation.” Langer v. Kiser, 57 F.4th 15 1085, 1101 (9th Cir. 2023) (quoting 42 U.S.C. § 12182(a)). Places of public 16 accommodation “are actual, physical places where goods or services are open to the public, 17 and places where the public gets those goods or services.” Id. at 1100 (simplified). The 18 bank itself may be a place of public accommodation, but Luna has not alleged sufficient 19 facts establishing a wall outside the bank should qualify as well. As for “facilities,” they 20 are “all or any portion of buildings, structures, sites, complexes, . . . roads, walks, 21 passageways, parking lots, or other real or personal property, including the site where the 22 building, property, structure, or equipment is located.” Id. at 1101 (simplified). Again, the 23 parking lot of the bank and surrounding sidewalk might qualify as “facilities,” but Luna 24 has not alleged sufficient facts that the perimeter wall should qualify as well. 25 The second merits-based flaw is, even assuming the wall might qualify as a facility 26 under the ADA, Luna does not allege it was open for use by the general public. Excluding 27 a disabled individual from a portion of a business “that is closed to the public” does not 28 violate the ADA. Id. (simplified). Luna does not allege any facts that the wall was open to 1 || use by the general public. In fact, Luna’s complaint appears to allege the opposite as it 2|| alleges the interaction with the guard occurred before Luna was provided a “chance to || disclose their disorder.” (Doc. 1 at 6.) In other words, there are no allegations the guard was even aware Luna had a disability at the time Luna was told not to sit on the wall. The 5 || guard appears to have been enforcing a general prohibition on members of the public using 6 || that portion of the property. The ADA claim is dismissed with leave to amend. 7 Vv. Leave to Amend 8 Luna’s complaint is dismissed but they are granted leave to amend all of their claims 9|| except for the “personal injury” claim, which is dismissed without leave to amend. If Luna || chooses to amend, “the amended complaint may only allege other facts consistent with” 11 || the original complaint. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990) || (simplified). Luna must file both the amended complaint and a version of the amended 13 || complaint that indicates how it differs from the original complaint. 14 IT IS ORDERED the Application (Doc. 2) is GRANTED. 15 IT IS FURTHER ORDERED the complaint (Doc. 1) is DISMISSED WITH LEAVE TO AMEND. No later than July 10, 2026, plaintiff shall file an amended complaint. Plaintiff must also file a version of the amended complaint that indicates how 18 || it differs from the original complaint. The Clerk of Court is directed to enter a judgment of || dismissal with prejudice if no amended complaint is filed by that date. 20 Dated this 29th day of June, 2026. 21
Honorable Krissa M. Lanham 24 United States District Judge 25 26 27 28
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