United States District Court, D. Arizona
ORDER
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 ...