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Ortiz v. City of Nogales

United States District Court, D. Arizona

January 25, 2019

Heriberto Martinez Ortiz, et al., Plaintiffs,
City of Nogales, et al., Defendants.



         On April 12, 2017, Plaintiffs Heriberto Martinez Ortiz (“Ortiz”) and his wife Nora Morales (“Morales”) filed a Complaint (Doc. 1), raising constitutional claims under 42 U.S.C. § 1983 as well as various state-law claims. On August 18, 2017, the Court issued an Order staying this case pending the resolution of underlying state criminal proceedings. (Doc. 26.) The Court lifted the stay on December 18, 2018. (Doc. 36.) Currently pending before the Court is a fully briefed Motion to Dismiss filed by Defendants Jose Nohe Garcia (“Garcia”), Jane Doe Garcia, and La Loma Grande, LLC (“La Loma”) (collectively, “Movants”). (Doc. 18; see also Docs. 19, 22.)[1]

         I. Legal Standard

         Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a pleading to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” This pleading standard does not demand detailed factual allegations, but it “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must tender more than “naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation and alteration marks omitted).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While a court evaluating a motion to dismiss must accept as true all factual allegations of the complaint, the same does not apply to legal conclusions couched as factual allegations. Id. Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.

         II. Allegations of Complaint

         The factual allegations of Plaintiff's Complaint, accepted as true for purposes of the pending Motion to Dismiss, are as follows.

         Plaintiffs, a married couple, reside in Santa Cruz County, Arizona. (Doc. 1 at ¶¶ 4-5.) Defendants Derek Arnson (“Arnson”), Joaquin Lopez (“Lopez”), Amador Vasquez (“Vasquez”), and Roberto Fierros (“Fierros”) are employees of the Nogales Police Department (“NPD”), and at all relevant times they were acting within the course and scope of their employment. (Id. at ¶¶ 7-13.) Garcia is a resident of Santa Cruz County, Arizona, and the manager of La Loma, an Arizona limited liability company. (Id. at ¶¶ 15-17.)

         On March 9, 2016, Garcia filed a report stating that a generator and an impact wrench had been stolen from property owned by La Loma. (Id. at ¶¶ 25-26.) Garcia provided non-party Officer Velasco with a surveillance-camera photo date-stamped February 28, 2016, which showed the partial face of an individual. (Id. At ¶¶ 27-28.) Garcia also provided a surveillance-camera photo showing a truck leaving the property with what appeared to be a generator in the truck bed. (Id. at ¶ 27.) The photo of the truck was time-stamped March 7, 2016, but Garcia told Officer Velasco that the photo was taken on March 6, 2016. (Id. at ¶ 29.) Garcia stated that he believed the individual in the photo taken on February 28, 2016-who had damaged the surveillance camera- was a possible suspect for the theft that had occurred on March 6, 2016; however, Garcia had no evidence to support that belief. (Id. at ¶¶ 30-31.)

         On March 11, 2016, without further investigation, Fierros issued a press release with the February 28, 2016 photo, indicating that the individual in the photo was a suspect wanted for theft and asking the public for assistance in locating him. (Id. at ¶ 33.) The NPD also posted the surveillance-camera photos of the individual and the truck on their Facebook page. (Id. at ¶ 34.) Fierros intentionally or recklessly misled the public, because the photos were taken on different dates and the person in the February 28, 2016 photo was never seen driving the truck in the other photo. (Id. at ¶ 36.)

         Approximately a month after NPD issued the press release, Lopez claimed that an anonymous male called his department-issued cell phone with information about the theft; however, Lopez's cell phone number was not published, there is no evidence that an anonymous tipster called the NPD number listed in the press release and Facebook post, and Lopez did not document or save the number that appeared on his cell phone. (Id. at ¶¶ 37-38, 58-68.) According to Lopez, the anonymous caller indicated that the individual in the February 28, 2016 surveillance-camera photo was Ortiz and that Ortiz had spray-painted his truck a different color days after NPS had released the surveillance-camera photos. (Id. at ¶¶ 64-66.) Lopez had a personal vendetta against Morales as a result of prior interactions and familial relationships. (Id. at ¶¶ 39-57.)

         After police officers interrogated Ortiz, Vasquez contacted Garcia via telephone. (Id. at ¶ 113.) Garica informed Vasquez that he had shown the surveillance-camera photos to various people who had identified the individual in the photograph as Ortiz and the truck as belonging to Ortiz. (Id. at ¶¶ 114-117.) Vasquez drafted a search-warrant affidavit based on the information provided to him by Lopez and Garcia. (Id. at ¶ 118.) The affidavit contained deliberately misrepresented and misleading information. (Id. at ¶¶ 119-125.)

         After Ortiz's arrest, Vasquez interviewed witnesses that Garcia said had identified Ortiz and the truck. (Id. at ¶¶ 141-143.) The witnesses denied having identified Ortiz or the truck. (Id.) On October 24, 2016, a complaint was filed against Ortiz for theft. (Id. at ¶ 151.)[2]

         Plaintiffs raise three § 1983 claims asserting violations of their Fourth, Fifth, and Fourteenth Amendment rights, as well as a § 1983 claim asserting municipal liability against the City of Nogales pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978). (Id. at ¶¶ 161-196, 213-216.) Plaintiffs also raise an inadequate training and supervision claim which is labeled as a common-law claim but which appears to be brought pursuant to § 1983. (See Id. at ¶ 219-228 (citing City of Canton v. Harris, 489 U.S. 378 (1989).) Plaintiffs raise state-law claims for false arrest, false imprisonment, assault, battery, negligence, defamation, “false light, ” intentional infliction ...

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