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Ortiz v. City of Nogales

United States District Court, D. Arizona

September 27, 2019

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


          Honorable Rosemary Marquez, United States District Judge

         Plaintiffs Heriberto Martinez Ortiz (“Ortiz”) and Nora Morales (“Morales”) filed a Complaint against Defendants City of Nogales and various individual defendants on April 12, 2017. (Doc. 1.) The case was thereafter stayed pending the conclusion of an underlying state-court criminal proceeding against Ortiz. (Doc. 26.) Ortiz was ultimately found guilty of misdemeanor theft in that underlying state-court proceeding. (Docs. 35, 45.) Ortiz did not appeal his conviction or sentence, and they are now final under Arizona law. (Doc. 45.)

         With leave of Court (Doc. 46), Plaintiffs filed a First Amended Complaint (“FAC”) on June 13, 2019. (Doc. 47.) Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s FAC. (Doc. 48.) Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6) on the grounds that Plaintiffs’ claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994). (Id.) The Motion is fully briefed. (Docs. 51, 52.) All pending deadlines set forth in the Court’s Scheduling Order (Doc. 41) have been stayed pending resolution of the Motion to Dismiss. (Doc. 49.) For the reasons discussed below, Defendants’ Motion to Dismiss will be granted.[1]

         I. Allegations of Plaintiff’s First Amended Complaint

         Plaintiffs’ FAC alleges the following:

         Plaintiffs are a married couple residing in Santa Cruz County, Arizona. (Doc. 47 at 2.) Defendant Derek K. Arnson (“Arnson”) was at all relevant times the Chief of Police for the City of Nogales Police Department (“NPD”), and he is sued in both his official and individual capacities. (Id.) Defendants Sergeant Joaquin Lopez (“Sergeant Lopez”), Officer Amador Vasquez (“Officer Vasquez”), and Sergeant Roberto Fierros (“Sergeant Fierros”) were at all relevant times employed by the NPD, and they are sued in their individual capacities; Sergeant Lopez is also sued in his official capacity. (Id. at 2-3.) Plaintiffs also name Defendants’ wives as Jane Doe defendants. (Id. at 1-3.)

         On March 9, 2016, an individual named Jose Nohe Garcia (“Garcia”) reported the theft of a generator and impact wrench from a jobsite on property owned by La Loma Grande, LLC (“La Loma”). (Doc. 47 at 4.) The theft occurred on March 6, 2016. (See Id . at 5.) Garcia provided the NPD with surveillance camera photos that captured the partial face of an individual and a truck leaving the area with what appeared to be a generator in its bed. (Id. at 4.) Garcia told the police that the photo of the partial face was taken on February 28, 2016 and the photo of the truck was taken on March 6, 2016; however, the photo of the truck was date-stamped March 7, 2016. (Id. at 4-5.) Garcia indicated he believed that the individual in the photo taken on February 28, 2016, who had damaged the surveillance camera, was a possible suspect for the theft that occurred on March 6, 2016. (Id. at 5.) Garcia had no evidence to support that belief. (Id.)

         On March 11, 2016, without further investigation, Sergeant Fierros issued a press release to the Nogales International with the photo of the partial face, indicating that the individual in the photo was wanted for theft and requesting public assistance in locating him. (Doc. 47 at 5.) The NPD also posted both of the surveillance photos on its Facebook page. (Id.) Sergeant Fierros misled the public because the two photos were taken on different dates. (Id.)

         Sergeant Lopez, who was in charge of the NPD’s criminal investigation division, had a vendetta against Morales arising from a familial relationship and prior police incident. (Id. at 5-8.) Even though Sergeant Lopez’s departmental cell phone number was not published in the press releases concerning the theft, he claims that on April 10, 2016, an anonymous male called him on his departmental cell phone and told him that the individual in the February 28, 2016 surveillance photo was Ortiz. (Id. at 5, 7-8.) According to Sergeant Lopez, the anonymous caller provided Ortiz’s address, indicated that the truck in the surveillance photo was parked behind Ortiz’s residence, and stated that the truck had been spray painted days after the surveillance photos were released by the NPD. (Id. at 8.) Sergeant Lopez intentionally failed to save the number of the anonymous caller, resulting in the destruction of exonerating evidence. (Id. at 7.) Sergeant Lopez’s “destruction of the witness information and his false reporting” ultimately “resulted in fabricat[ed] criminal charges marshaled against Plaintiff Ortiz.” (Id.)

         Sergeant Lopez concluded without further investigation that Ortiz had committed the theft. (Doc. 47 at 8.) Sergeant Lopez assigned the investigation to Officer Vasquez, who also concluded that the surveillance photo depicted Ortiz. (Id. at 8-9.) Neither Sergeant Lopez nor Officer Vasquez have any training or expertise in facial recognition. (Id. at 9.) Sergeant Lopez provided Officer Vasquez with inaccurate information about what the anonymous tipster had said. (Id. at 8-9.)

         Sergeant Lopez and Officer Vasquez arrested Ortiz at his gym and transported him to a detention facility. (Id. at 10.) At the detention facility, Officer Vasquez read Ortiz his Miranda rights and Ortiz agreed to be questioned. (Id. at 10.) Ortiz admitted that his wife owned a truck similar to the one captured in the surveillance photo, but he averred that it was not the same truck and that his wife’s truck had been inoperable for two to three years. (Id. at 11.) Ortiz denied any involvement in the theft. (Id. at 10.)

         After the interrogation, Officer Vasquez contacted Garcia, who said that he had shown the surveillance photos to workers who had identified the individual in the photos as Ortiz and the truck as belonging to Ortiz. (Doc. 47 at 11-12.) While Ortiz was still detained, Officer Vasquez drafted a search warrant affidavit that contained deliberately misrepresented and misleading information, and Sergeant Lopez reviewed the affidavit. (Id. at 12.) After the search warrant was issued, numerous police officers went to Plaintiffs’ residence to execute the warrant. (Id. at 13.)

         Even though Ortiz informed Sergeant Lopez and Officer Vasquez that he had a medical condition which could cause fatal swelling attacks, the officers forced Ortiz to sit on the curb in front of his house for several hours in the sun, without food and water, while the search warrant was executed. (Doc. 47 at 13.) Ortiz and Morales were humiliated as a result of being detained on the curb in the view of neighbors. (Id.) During execution of the search warrant, officers seized Plaintiffs’ truck and a generator that resembled the one stolen from the La Loma jobsite. (Id.)

         On April 15, 2016, news and social media outlets reported that a tipster had helped the NPD arrest the man seen in the La Loma surveillance photos. (Doc. 47 at 13.) The NPD’s press release included a booking photo of Ortiz that was over a decade old, tainting Ortiz’s reputation in his community. (Id. at 13-14.) After Ortiz’s arrest and the issuance of the press release containing the booking photo, Officer Vasquez began an investigation and found ...

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