1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Vernon Peltz, et al., No. CV-25-00165-TUC-SHR
10 Plaintiffs, ORDER
11 v.
12 D Douglas Metcalf, et al.,
13 Defendants. 14 15 16 On April 10, 2025, pro se Plaintiffs Vernon Peltz, Mark Brown, and Roy Tripoloni 17 filed a Complaint and Request for Injunctive Relief pursuant to 42 U.S.C. § 1983 (Doc. 1). 18 On June 16, 2025, Defendants filed a Motion to Dismiss (Doc. 6). Plaintiffs filed a 19 Response and Motion to Strike (Doc. 7) and Defendants replied (Doc. 8). For the following 20 reasons, the Court will grant the Motion to Dismiss (Doc. 6), deny Plaintiffs’ Motion to 21 Strike (Doc. 7) as moot, and dismiss Plaintiffs’ Complaint with prejudice (Doc. 1). 22 I. Background 23 Plaintiffs—who “frequently use their cell phones to record” for publication “the 24 actions of Court personnel in the performance of their duties”—allege Defendants violated 25 their First Amendment and due process rights. (Doc. 1.) They allege Defendants 26 “conspired to prohibit Plaintiffs from using their cellphones to record in public places 27 within Pima County Justice Court Complex and Pima County Superior Court.” (Id. at 2.)1
28 1Plaintiffs solely bring First Amendment and Due Process claims (Counts One and Two) but seek relief in the form of punitive damages and injunctive relief (erroneously 1 Plaintiffs name the following Defendants in their individual and official capacities: Pima 2 County Superior Court Judge Douglas Metcalf; Director of Court Security at the Pima 3 County Superior Court Richard Tracy; Community Relations Officer at the Pima County 4 Superior Court Alanna Meadows; Pima County Superior Court Security Manager 5 Maryjane Abril; and Pima County Justice Court security guards Kevin Luckenbill, 6 Francisco Vasquez, and Richard Lopez. (Id. at 3.) 7 Specifically, Plaintiffs allege Plaintiff Brown began interviewing Plaintiff Peltz in 8 the lobby of the Pima County Justice Court when “three Court security officers jumped on 9 Plaintiff Brown and attempted to take his recording devices away.” (Id. at 6.) They further 10 allege Defendant Luckenbill “put his person between Plaintiff Peltz and [the] three 11 officers” to prevent Peltz from recording their actions, ordered Peltz to stop recording, and 12 threatened to arrest Peltz. (Id.) Defendant Vasquez ordered Peltz to leave the lobby “or 13 be arrested” and “physically began to handcuff” Peltz before Peltz managed to “escape out 14 the door.” (Id.) 15 Plaintiffs further allege on a separate occasion they attempted to audio record 16 “proceedings involving Lane Myers in Pima County Superior Court” but Judge Metcalf 17 had issued an order “broadly prohibiting all recording except through the court’s YouTube 18 Livestream, without holding hearings to assess individual requests.” (Id.) They allege on 19 March 28, 2025, Defendant Tracy barred Plaintiff Brown “from entering the courthouse 20 with his cell phone or any recording devices” and “Defendant Meadows informed Plaintiff 21 Tripoloni in an email that the prohibition extended to him as well.” (Id.) 22 II. Legal Standard 23 On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), allegations 24 of material fact are assumed to be true and construed in the light most favorable to the 25 nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal 26 under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence 27 of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 28 labeled Counts Three and Four). 1 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, a complaint need contain 2 only “enough facts to state a claim [for] relief that is plausible on its face.” Bell Atl. Corp. 3 v. Twombly, 550 U.S. 544, 570 (2007). “[C]onclusory allegations of law and unwarranted 4 inferences are insufficient to defeat a motion to dismiss.” Ove v. Gwinn, 264 F.3d 817, 5 821 (9th Cir. 2001). If the Court finds a plaintiff does not allege enough facts to support a 6 cognizable legal theory, the Court may dismiss the claim. SmileCare Dental Grp. v. Delta 7 Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996). “Dismissal without leave to 8 amend is improper unless it is clear, upon de novo review, that the complaint could not be 9 saved by any amendment.” Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 10 1991). 11 III. Discussion 12 A government official in a § 1983 action is entitled to qualified immunity from 13 damages for civil liability if his “conduct does not violate clearly established statutory or 14 constitutional rights of which a reasonable person would have known.” Harlow v. 15 Fitzgerald, 457 U.S. 800, 818 (1982). Once a qualified-immunity defense is raised, the 16 plaintiff bears the burden of showing the rights allegedly violated were clearly established. 17 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). An officer is not entitled to 18 qualified immunity if the plaintiff shows (1) the officer’s conduct violated a constitutional 19 right and (2) the right was clearly established at the relevant time. Sorrels v. McKee, 290 20 F.3d 965, 969 (9th Cir. 2002); Romero v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir. 1991). 21 “The relevant, dispositive inquiry in determining whether a right is clearly established is 22 whether it would be clear to a reasonable officer that his conduct was unlawful in the 23 situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). 24 Among other arguments,2 Defendants raise a qualified immunity defense in their 25 Motion to Dismiss. (Doc. 6 at 7–10.) Specifically, they assert they are entitled to qualified 26 immunity because “[n]o clearly established law provides a constitutional right to record 27 judicial proceedings or court hearings” and “[c]ontrary to Plaintiffs’ assertions, neither the
28 2Because the Court finds Defendants are entitled to qualified immunity, the Court need not address the additional arguments raised in the Motion to Dismiss. 1 First Amendment nor the Fourteenth Amendment grants them an unfettered Constitutional 2 right to audio or video record inside courthouses or a right to a hearing.” (Id. at 9.) In 3 response, Plaintiffs assert they “stand united in their conviction that the Constitution 4 affords them the right to hold their government accountable through the act of recording,” 5 and Defendants’ immunity arguments are “premature, procedurally improper, and not 6 appropriate at the Rule 12(b) stage.” (Doc. 7.) They additionally move to strike exhibits 7 attached to Defendants’ Motion to Dismiss. (Id.) 8 Plaintiffs’ assertion qualified immunity may not be raised in a Rule 12(b)(6) motion 9 to dismiss is incorrect. See, e.g., Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 10 893 (9th Cir.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Vernon Peltz, et al., No. CV-25-00165-TUC-SHR
10 Plaintiffs, ORDER
11 v.
12 D Douglas Metcalf, et al.,
13 Defendants. 14 15 16 On April 10, 2025, pro se Plaintiffs Vernon Peltz, Mark Brown, and Roy Tripoloni 17 filed a Complaint and Request for Injunctive Relief pursuant to 42 U.S.C. § 1983 (Doc. 1). 18 On June 16, 2025, Defendants filed a Motion to Dismiss (Doc. 6). Plaintiffs filed a 19 Response and Motion to Strike (Doc. 7) and Defendants replied (Doc. 8). For the following 20 reasons, the Court will grant the Motion to Dismiss (Doc. 6), deny Plaintiffs’ Motion to 21 Strike (Doc. 7) as moot, and dismiss Plaintiffs’ Complaint with prejudice (Doc. 1). 22 I. Background 23 Plaintiffs—who “frequently use their cell phones to record” for publication “the 24 actions of Court personnel in the performance of their duties”—allege Defendants violated 25 their First Amendment and due process rights. (Doc. 1.) They allege Defendants 26 “conspired to prohibit Plaintiffs from using their cellphones to record in public places 27 within Pima County Justice Court Complex and Pima County Superior Court.” (Id. at 2.)1
28 1Plaintiffs solely bring First Amendment and Due Process claims (Counts One and Two) but seek relief in the form of punitive damages and injunctive relief (erroneously 1 Plaintiffs name the following Defendants in their individual and official capacities: Pima 2 County Superior Court Judge Douglas Metcalf; Director of Court Security at the Pima 3 County Superior Court Richard Tracy; Community Relations Officer at the Pima County 4 Superior Court Alanna Meadows; Pima County Superior Court Security Manager 5 Maryjane Abril; and Pima County Justice Court security guards Kevin Luckenbill, 6 Francisco Vasquez, and Richard Lopez. (Id. at 3.) 7 Specifically, Plaintiffs allege Plaintiff Brown began interviewing Plaintiff Peltz in 8 the lobby of the Pima County Justice Court when “three Court security officers jumped on 9 Plaintiff Brown and attempted to take his recording devices away.” (Id. at 6.) They further 10 allege Defendant Luckenbill “put his person between Plaintiff Peltz and [the] three 11 officers” to prevent Peltz from recording their actions, ordered Peltz to stop recording, and 12 threatened to arrest Peltz. (Id.) Defendant Vasquez ordered Peltz to leave the lobby “or 13 be arrested” and “physically began to handcuff” Peltz before Peltz managed to “escape out 14 the door.” (Id.) 15 Plaintiffs further allege on a separate occasion they attempted to audio record 16 “proceedings involving Lane Myers in Pima County Superior Court” but Judge Metcalf 17 had issued an order “broadly prohibiting all recording except through the court’s YouTube 18 Livestream, without holding hearings to assess individual requests.” (Id.) They allege on 19 March 28, 2025, Defendant Tracy barred Plaintiff Brown “from entering the courthouse 20 with his cell phone or any recording devices” and “Defendant Meadows informed Plaintiff 21 Tripoloni in an email that the prohibition extended to him as well.” (Id.) 22 II. Legal Standard 23 On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), allegations 24 of material fact are assumed to be true and construed in the light most favorable to the 25 nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Dismissal 26 under Rule 12(b)(6) can be based on “the lack of a cognizable legal theory” or “the absence 27 of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 28 labeled Counts Three and Four). 1 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To avoid dismissal, a complaint need contain 2 only “enough facts to state a claim [for] relief that is plausible on its face.” Bell Atl. Corp. 3 v. Twombly, 550 U.S. 544, 570 (2007). “[C]onclusory allegations of law and unwarranted 4 inferences are insufficient to defeat a motion to dismiss.” Ove v. Gwinn, 264 F.3d 817, 5 821 (9th Cir. 2001). If the Court finds a plaintiff does not allege enough facts to support a 6 cognizable legal theory, the Court may dismiss the claim. SmileCare Dental Grp. v. Delta 7 Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996). “Dismissal without leave to 8 amend is improper unless it is clear, upon de novo review, that the complaint could not be 9 saved by any amendment.” Polich v. Burlington N., Inc., 942 F.2d 1467, 1472 (9th Cir. 10 1991). 11 III. Discussion 12 A government official in a § 1983 action is entitled to qualified immunity from 13 damages for civil liability if his “conduct does not violate clearly established statutory or 14 constitutional rights of which a reasonable person would have known.” Harlow v. 15 Fitzgerald, 457 U.S. 800, 818 (1982). Once a qualified-immunity defense is raised, the 16 plaintiff bears the burden of showing the rights allegedly violated were clearly established. 17 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). An officer is not entitled to 18 qualified immunity if the plaintiff shows (1) the officer’s conduct violated a constitutional 19 right and (2) the right was clearly established at the relevant time. Sorrels v. McKee, 290 20 F.3d 965, 969 (9th Cir. 2002); Romero v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir. 1991). 21 “The relevant, dispositive inquiry in determining whether a right is clearly established is 22 whether it would be clear to a reasonable officer that his conduct was unlawful in the 23 situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). 24 Among other arguments,2 Defendants raise a qualified immunity defense in their 25 Motion to Dismiss. (Doc. 6 at 7–10.) Specifically, they assert they are entitled to qualified 26 immunity because “[n]o clearly established law provides a constitutional right to record 27 judicial proceedings or court hearings” and “[c]ontrary to Plaintiffs’ assertions, neither the
28 2Because the Court finds Defendants are entitled to qualified immunity, the Court need not address the additional arguments raised in the Motion to Dismiss. 1 First Amendment nor the Fourteenth Amendment grants them an unfettered Constitutional 2 right to audio or video record inside courthouses or a right to a hearing.” (Id. at 9.) In 3 response, Plaintiffs assert they “stand united in their conviction that the Constitution 4 affords them the right to hold their government accountable through the act of recording,” 5 and Defendants’ immunity arguments are “premature, procedurally improper, and not 6 appropriate at the Rule 12(b) stage.” (Doc. 7.) They additionally move to strike exhibits 7 attached to Defendants’ Motion to Dismiss. (Id.) 8 Plaintiffs’ assertion qualified immunity may not be raised in a Rule 12(b)(6) motion 9 to dismiss is incorrect. See, e.g., Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 10 893 (9th Cir. 2022) (granting qualified immunity on motion to dismiss because 11 “[p]ostponing our qualified immunity decision until the summary judgment stage would 12 only consume additional time, expense, and judicial resources, without any realistic 13 possibility that the outcome would change”); Act Up!/Portland v. Bagley, 988 F.2d 868, 14 872 (9th Cir. 1993) (stating immunity issues should be decided long before trial). 15 Moreover, Plaintiffs have not met their burden of proving the violation of a 16 constitutional right and that the right was clearly established. Plaintiffs broadly allege they 17 have a “[f]undamental First Amendment right [to] use their phones to video record in 18 courthouses and to publish those videos,” but provide no law establishing a right to record 19 in courthouses without restrictions. (See Doc. 1 at 4.) As Defendants assert in their Motion, 20 courthouses are non-public fora, and courts may accordingly impose speech limitations so 21 long as they are viewpoint neutral and reasonable in light of the purpose served by the 22 forum. See Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002), 23 abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 24 (2008); Chandler v. Florida, 449 U.S. 560, 582–83 (1981) (permitting states to 25 “experiment” in allowing or disallowing cameras during trials); see also Cornelius v. 26 NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 808 (1985). Plaintiffs have failed 27 to show any established federal law or constitutional right underlying their claims, and 28 accordingly, the Court will dismiss Plaintiffs’ claims against Defendants as barred by 1 qualified immunity. See Act Up!/Portland, 988 F.2d at 872 (stating the doctrine of 2 qualified immunity is an immunity from suit rather than a mere defense to liability). 3 Plaintiffs have also failed to state a claim for injunctive relief. Plaintiffs have not 4 specifically identified how any laws enforced by Defendants violate the First Amendment 5 or Due Process Clause. As stated above, Plaintiffs’ argument they have an unfettered “right 6 [to] use their phones to video record in courthouses” under the First Amendment is without 7 merit. The only assertion Plaintiffs make regarding due process is “Arizona Supreme Court 8 Rule 122(h) requires a judge to conduct a hearing before denying an individual’s right to 9 record” and Defendants in this case failed to provide such a hearing. (Doc. 1 at 8.) Rule 10 122(h), however, imposes no such requirement, see Ariz. S. Ct. R. 122(h), and Plaintiffs 11 fail to allege how each defendant violated due process, see Twombly, 550 U.S. at 555. They 12 have not stated a plausible claim entitling them to relief. See Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009) 14 Upon de novo review, the Court finds amendment in this case would be futile given 15 the deficiencies outlined above. Accordingly, the Court will dismiss the Complaint with 16 prejudice. See Herring Networks, Inc. v. Maddow, 8 F.4th 1148, 1161 (9th Cir. 2021). The 17 Court will also deny Plaintiffs’ Motion to Strike (Doc. 7) as moot. Although the Court 18 could properly consider the documents attached to Defendants’ Motion to Dismiss because 19 they are judicially noticeable and their authenticity is not in question, see United States v. 20 Ritchie, 342 F.3d 903, 908 (9th Cir. 2003), the Court did not need to consider the attached 21 documents in finding Plaintiffs did not meet their burden of proving an established 22 constitutional right. 23 IV. Conclusion 24 IT IS ORDERED Plaintiffs’ Complaint (Doc. 1) is DISMISSED WITH 25 PREJUDICE. 26 IT IS FURTHER ORDERED Plaintiffs’ Motion to Strike (Doc. 7) is DENIED 27 AS MOOT. 28 … 1 IT IS FURTHER ORDERED the Clerk of Court shall close this case. 2 Dated this 20th day of March, 2026. 3 4
6 ( | Honorable Scott H. Rash United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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