Hernandez v. Chandler, City of
2:23-cv-01400
D. Ariz.Jan 8, 2026Check TreatmentDocket
1 WO SKC
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8
9 Mario Alberto Hernandez, No. CV-23-01400-PHX-SHD (ESW)
10 Plaintiff,
11 v. ORDER
12
Chandler, City of, et al.,
13
Defendants.
14
15 Plaintiff Mario Alberto Hernandez brought this pro se civil rights action pursuant to
16 42 U.S.C. § 1983 and Arizona law based on events that allegedly took place pertaining to
17 an order of protection Hernandez’s then-wife, Mia Ariel Ingram, sought and obtained
18 against him in the Chandler Municipal Court. Pending before the Court are the following
19 Motions: (1) Defendant State of Arizona’s Motion to Dismiss Third Amended Complaint
20 (Doc. 100), (2) Hernandez’s Motion for Temporary Restraining Order and Preliminary
21 Injunction (Doc. 102), (3) Chandler Defendants’ Motion to Dismiss Third Amended
22 Complaint (Doc. 103), and (4) Defendant Lemonade Insurance Company’s Motion to
23 Dismiss (Doc. 116).1 Hernandez was informed of his rights and obligations to respond to
24
25 1 This Motion is a corrected copy of the Motion at Doc. 113, which the Court directed
the Clerk of Court to file under seal because the caption contained the names of minor
26 children that had not been redacted. (See Doc. 115.) Per the Court’s Order directing
27 Defendant Lemonade to “file a corrected version of the Motion to Dismiss omitting the
names of the minor children pursuant to Fed. R. Civ. P. 5.2,” Defendant Lemonade refiled
28 the Motion at Doc. 116; however, the prior, sealed version at Doc. 113 still appears on the
Court’s docket as a pending motion. The Court will direct the Clerk of Court to withdraw
1 the three Motions to Dismiss (Docs. 105, 106, 122), and all pending Motions are fully
2 briefed. (Docs. 107, 108, 111, 112, 117, 119, 125, 127, 128.) Additionally, pending before
3 the Court are Hernandez’s requests for an extension of time to serve certain defendants,
4 (Doc. 138 at 2–4), and his request that the Court appoint a guardian ad litem to protect his
5 minor children’s interests or, in the alternative, authorize him to pursue claims “as a next
6 friend,” (Doc. 139 at 2–3). The Court will address these requests in this order as well.
7 I. Background
8 Hernandez initiated this action in the Maricopa County Superior Court against the
9 City of Chandler, the Chandler Municipal Court, and the Chandler Police Department, and
10 these Defendants properly removed the action to this Court and paid the filing fee.
11 (Doc. 1.) Since removal, Plaintiff has amended his Complaint three times—each time,
12 adding Defendants and claims or restating dismissed claims. (See Docs. 18, 31, 99.)
13 In several prior Orders, the Court dismissed without prejudice Plaintiff’s § 1983
14 claims against Defendants the State of Arizona (the State); the City of Chandler (the City);
15 Chandler Deputy City Prosecutor Rosemary Rosales and Chandler Police Officers Billie
16 Etringham, Heath Hernandez, Joshua Cohen, Sal Haro Trujillo, Jacob Ramer, Joseph
17 Phelps, and Zachary Thomas (the Individual Chandler Defendants); private individual
18 Antoinette Ingram; and the spouses of all individual Defendants, named only as Doe
19 Defendants. (See Docs. 17, 30, 61, 96.)
20 In the latest of these Orders, on April 23, 2025, the Court dismissed without
21 prejudice Hernandez’s federal claims against all then-remaining Defendants for failure to
22 state a claim and granted with limitations Hernandez’s then-pending Motion for Leave to
23 File Third Amended Complaint. (Doc. 96). On granting leave to amend, the Court
24 specified that “Hernandez may reassert his state law claims in the Third Amended
25 Complaint [and] any new claims identified in the Proposed Third Amended Complaint
26 (Doc 86-1).” (Doc. 96 at 22.) The Court also permitted Hernandez to “reassert any
27 dismissed claims, but only to extent he alleges facts that remedy the defects in pleading
28
Doc. 113.
1 identified in the Court’s [prior dismissal] orders.” (Id.) The Court further specified that,
2 “[t]o ensure that Hernandez complies with this limitation, the Court will review all federal
3 claims asserted in a third amended complaint for sufficiency sua sponte,” and it stated that
4 Defendants were not required to respond to the federal claims unless ordered to do so. (Id.
5 at 20−21.) On May 23, 2025, Plaintiff timely filed a 59-page, 19-count Third Amended
6 Complaint (TAC), which is now the operative complaint. (Doc. 99.)2
7 II. Summary Dismissals
8 A. New Defendants and Claims
9 In the TAC, Plaintiff adds several new Defendants and claims. Plaintiff names the
10 Arizona Department of Economic Security, Lemonade Insurance Company, Sean Duggan
11 and Jane Doe Duggan, Geoffrey Wrescher and Jane Doe Wrescher, Mario Urrutia and Jane
12 Doe Urrutia, Mia Ingram and John Doe Ingram, and Jonelle Harris and John Doe Harris.
13 (Doc. 99 at 4−8.) Plaintiff did not name these entities and individuals in any prior
14 pleadings, identify them as potential Defendants in his Motion for Leave to File Third
15 Amended Complaint (Doc. 86 at 6), or name them in his proposed amended pleading.
16 (Doc. 86-1 at 2−3.)
17 As noted, the scope of the Court’s grant of leave to amend was limited. The Court
18 only permitted Hernandez to assert or reassert his state law claims, his dismissed federal
19 claims, and “any new claims identified in the Proposed Third Amended Complaint
20 (Doc. 86-1).” (Doc. 96 at 22.) Plaintiff’s attempt to name new Defendants based on new
21 theories of liability in the TAC exceeds the bounds of this grant and warrants summary
22 dismissal of these additional Defendants and claims. See Lizza v. Deutsche Bank Nat’l Tr.
23 Co., 714 F. App’x 620, 622 (9th Cir. 2017) (the district court properly “struck the Lizza
24 Plaintiffs’ Second Amended Complaint for exceeding the scope of amendment permitted
25 in the court’s first dismissal order [that] allowed the Lizza Plaintiffs to make more specific
26
27
2 Hernandez purports to bring this action on behalf of himself and his minor children,
28 but he cannot assert claims on behalf of his minor children in his pro se capacity. See, e.g.,
Grizzell v. San Elijo Elementary Sch., 110 F.4th 1177, 1179(9th Cir. 2024). 1 the [] claims they asserted in their First Amended Complaint . . . not to assert a wholly new 2 theory of liability”); see also Royal Ins. Co. of Am. v. Sw. Marine,194 F.3d 1009
, 1016– 3 17 (9th Cir. 1999) (“late amendments to assert new theories are not reviewed favorably 4 when the facts and the theory have been known to the party seeking amendment since the 5 inception of the cause of action”) (quoting Acri v. International Assoc. of Machinists & 6 Aerospace Workers,781 F.2d 1393, 1398
(9th Cir.1986)). The Court will summarily 7 dismiss the above-named new Defendants and will deny as moot new Defendant Lemonade 8 Insurance Company’s Motion to Dismiss. 9 The Court will also summarily dismiss the following claims, which Hernandez also 10 did not assert in his prior pleadings or set forth in his Motion for Leave to File Third 11 Amended Complaint or in his draft Third Amended Complaint: 12 1. Count 4: § 1983 claims against multiple prior and new Defendants based on 13 procedural due process violations (parental rights); 14 2. Count 5: § 1983 claims against multiple prior and new Defendants based on 15 substantive due process violations (parental rights); 16 3. Count 7: § 1983 claims against “City of Chandler Officials” under the Fourteenth 17 Amendment based on damage to reputation plus employment loss; 18 4. Count 8: § 1983 claims against multiple prior and new Defendants based on 19 “conspiracy with state actors to violate constitutional rights”; 20 5. Count 11: state law “false light/invasion of privacy” claims against multiple prior 21 and new Defendants; 22 6. Count 14: state law “abuse of process claims” against only new Defendants; 23 7. Count 16: a state law negligent supervision and training claim against the City; 24 8. Count 17: state law “tortious interference with employment and business relations” 25 claims against multiple prior and new Defendants; 26 9. Count 18: state law “loss of consortium (children and mother)” claims against 27 multiple prior and new Defendants; and 28 10. Count 19: state law contract claims against new Defendant Lemonade Insurance 1 Company based on “breach of contract and bad faith insurance denial.” 2 B. The State 3 The Court previously dismissed the State without prejudice pursuant to Rule 4 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction on 5 the ground the State has Eleventh Amendment immunity to suits against it in federal court, 6 which it has not waived. (See Doc. 61 at 15−17.) As the Court made clear in that Order, 7 “the Court has no authority to ignore the State’s constitutional immunity to suit absent a 8 clear waiver of that immunity or an unambiguous act of Congress, which is not present 9 here.” (Id. at 17.) For the reasons already set forth in that Order, the Court will grant the 10 State’s renewed Motion to Dismiss (Doc. 100) and will summarily dismiss the State and 11 any reasserted claims against it in the TAC for lack of subject matter jurisdiction. 12 C. The City 13 The Court previously dismissed Hernandez’s § 1983 claims against the City for 14 failure to state a claim on the ground that Hernandez failed to allege sufficient facts to show 15 he suffered a constitutional violation due to any Individual Chandler Defendant’s conduct, 16 and even if he could do so, “he has not alleged [any] facts to support a policy or inadequate 17 training/supervision claim against the City.” (Doc. 30 at 10.) 18 In Monell v. Department of Social Services of City of New York,436 U.S. 658 19
(1978), the Supreme Court held that a local government entity “may not be sued under 20 § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when 21 execution of a government’s policy or custom, whether made by its lawmakers or by those 22 whose edicts or acts may fairly be said to represent official policy, inflicts the injury that 23 the government as an entity is responsible under § 1983.” Id. at 694; see Connick v. 24 Thompson,563 U.S. 51
(2011) (“local governments are responsible only for their own 25 illegal acts”). A municipality cannot be held vicariously liable under § 1983 for its 26 employees’ actions. Connick,563 U.S. at 60
. To state a claim for Monell liability, a 27 plaintiff must allege a constitutional injury that results from a custom or policy of the 28 municipality or from a failure to train. Monell, 436 U.S. at 690−91; City of Canton v. 1 Harris,489 U.S. 378, 388
(1989). 2 A plaintiff pursuing Monell liability based on a failure to train or supervise must 3 allege that the municipality exhibited “‘deliberate indifference to the rights of persons’ with 4 whom those employees are likely to come into contact.” Lee v. City of Los Angeles, 2505 F.3d 668, 681
(9th Cir. 2001) (citation omitted). “‘[D]eliberate indifference’ is a stringent 6 standard of fault, requiring proof that a municipal actor disregarded a known or obvious 7 consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown,520 U.S. 8
397, 410 (1997). 9 In the failure-to-train context, deliberate indifference may be shown if “the need for 10 more or different training is so obvious, and the inadequacy so likely to result in the 11 violation of constitutional rights, that the policymakers of the [municipality] can 12 reasonably be said to have been deliberately indifferent to the need.” City of Canton, Ohio 13 v. Harris,489 U.S. 378, 390
(1989). “A pattern of similar constitutional violations by 14 untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for 15 purposes of failure to train.” Connick,563 U.S. at 62
(quoting Bd. of Cnty. Comm’rs, 520 16 U.S. at 409). “Without notice that a course of training is deficient in a particular respect, 17 decisionmakers can hardly be said to have deliberately chosen a training program that will 18 cause violations of constitutional rights.” Id. at 62. “A municipality’s culpability for a 19 deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Id. at 20 61. 21 In each of his restated § 1983 claims against the City in Counts 1, 2, 3, and 6, 22 Hernandez supports his Monell theory of liability with variations of the same conclusory 23 allegation: i.e., “Defendant City of Chandler is liable pursuant to [Monell] because the 24 actions of its officers were taken pursuant to an official policy, custom, or practice, or 25 resulted from the City’s failure to adequately train, supervise, or discipline its officers.” 26 (TAC ¶¶ 143, 157, 171, 221.) Hernandez does not identify any alleged constitutionally 27 deficient policies of the City or allege any facts from which to infer a pattern or practice of 28 similar constitutional violations. Instead, he merely provides a “formulaic recitation of the 1 elements” of a claim, which is inadequate to state a claim. See Bell Atlantic Corp. v. 2 Twombly,550 U.S. 544, 570
(2007) (a plaintiff must provide “more than labels and 3 conclusions, and a formulaic recitation of the elements of a cause of action will not do”); 4 see also Ashcroft v. Iqbal,556 U.S. 662, 678
(2009) (“Threadbare recitals of the elements 5 of a cause of action, supported. by mere conclusory statements, do not suffice.”). 6 Hernandez’s attempt to assert a § 1983 claim against the City in Count 9 based on 7 “failure to supervise, train, or discipline” (TAC at 99) fares no better. Once again, 8 Hernandez relies almost entirely on conclusory allegations, such as that the City, via its 9 Chief of Police Sean Duggan, “was aware, or should have been aware, of widespread 10 misconduct by subordinate officers involving false arrests, misuse of protective orders, 11 failures to document incidents, and interference with citizen rights”; the City “failed to take 12 reasonable steps to supervise or discipline the officers . . . contributing to the violations 13 alleged herein”; and these alleged failures “were part of a pattern of misconduct.” (Id. 14 ¶¶ 249−252.) Courts applying federal pleading standards in the Monell context have 15 routinely found such allegations inadequate to state a claim. See, e.g., A.E. ex rel. 16 Hernandez v. City of Tulare,666 F.3d 631, 637
(9th Cir. 2012) (“[A]llegations in a 17 complaint . . . may not simply recite the elements of a cause of action, but must contain 18 sufficient allegations of underlying facts to give fair notice and to enable the opposing party 19 to defend itself effectively . . . [and] must plausibly suggest an entitlement to relief, such 20 that it is not unfair to require the opposing party to be subjected to the expense of discovery 21 and continued litigation. This standard applies to Monell claims . . . .” (citations omitted)); 22 Dougherty v. City of Covina,654 F.3d 892, 900-01
(9th Cir. 2011) (“Dougherty’s Monell 23 and supervisory liability claims lack any factual allegations that would separate them from 24 the ‘formulaic recitation of a cause of action’s elements’ deemed insufficient by Twombly. 25 . . . The Complaint lacked any factual allegations regarding key elements of the Monell 26 claims, or, more specifically, any facts demonstrating that his constitutional deprivation 27 was the result of a custom or practice of the City of Covina or that the custom or practice 28 was the ‘moving force’ behind his constitutional deprivation.”). 1 Apart from the above conclusory allegations, Hernandez relies on a single instance 2 of alleged misconduct by City employees to show a failure to train or supervise. He alleges 3 Chandler City Councilmember Jane Poston filed a “notice of claim” against the City 4 accusing Chief Dugan and Assistant Chief Dave Ramer of defaming her by “spreading 5 knowingly false rumors of an FBI investigation into her business dealings with the police 6 union.” (TAC ¶ 252.)3 In addition to being vague, this single, undated instance of alleged 7 defamation of a City Councilmember by City officials is insufficient to infer that the City 8 had a pattern or practice of City employees defaming private citizens at the time of this 9 action. See Trevino v. Gates,99 F.3d 911, 918
(9th Cir. 1996) (“Liability for improper 10 custom may not be predicated on isolated or sporadic incidents; it must be founded upon 11 practices of sufficient duration, frequency and consistency that the conduct has become a 12 traditional method of carrying out policy.”). By the same token, one alleged instance of 13 defamation is insufficient to infer a pattern or practice of similar violations by untrained 14 employees from which to infer the City was both aware of and deliberately indifferent to a 15 need for more or better training in this area. Connick,563 U.S. at 62
.
16 Additionally, this alleged instance does not help Hernandez because, even if the
17 allegation was sufficient to infer the City fails to adequately train its employees to not
18 engage in defamation, Hernandez does not allege any facts from which to infer that a failure
19 to train in this area caused City employees to engage in any similar violations underlying
20 his claims against the City in this action. Although he asserts a state law defamation claim
21 in Count 10, Hernandez only alleges that private individuals, including Defendant
22 Antoinette Ingram, made false and defamatory statements against him, not that he was
23 defamed by any City employees or that any such violations occurred under similar
24 circumstances to those allegedly presented in the Councilmember’s notice of claim.
25 Lacking any discernable connection to any alleged misconduct toward Hernandez, this
26
27 3 While not entirely clear, it appears from the allegations in Count 9 that the alleged
defamation either occurred or became known to the City on November 8, 2023, which, in
28 addition to having little apparent similarity to the facts alleged in Hernandez’s case, post-
dates the events underlying the claims in this action. (See TAC ¶ 253.)
1 added allegation of defamation by City officials provides no plausible support for
2 Hernandez’s Monell claims against the City based on failure to train and supervise.
3 Hernandez also does not allege any nonconclusory facts to show the City was both aware
4 of, and deliberately indifferent to, a need for more or better training of its employees on
5 “false arrests, misuse of protective orders, failures to document incidents, and interference
6 with citizen rights.”
7 Because Hernandez fails to allege any facts from which to hold the City liable based
8 on a policy, pattern or practice, or failure to train under Monell, the Court will summarily
9 dismiss Hernandez’s §1983 claims against the City.
10 D. Remaining Claims
11 After the above dismissals, the following claims remain:
12 1. Count 1: a Fourth Amendment unlawful search and seizure claim against Defendant
13 Officer Ramer;4
14 2. Count 2: Fourth Amendment false arrest and malicious prosecution claims against
15 Defendant Officers Ramer and Thomas;
16 3. Count 3: First Amendment retaliation claims against Individual City Defendants
17 Officer Cohen and Prosecutor Rosales;
18 4. Count 6: Fourteenth Amendment failure to intervene claims against several
19 Individual Chandler Defendants;
20 5. Count 10: a state law defamation claim against Defendant Antoinette Ingram;
21 6. Count 12: state law intentional infliction of emotional distress (IIED) claims against
22 “all Defendants”; and
23 7. Count 15: a state law civil conspiracy claim against Defendant Antoinette Ingram;
24
25 4 Plaintiff purportedly brings this and other similar claims under both the Fourth and
Fourteenth Amendments. (Doc. 99 at 17, 19.) The Court previously dismissed any
26 intended separate Fourteenth Amendment claims based on alleged unlawful search and
27 seizure on the ground that such claims arise, if at all, under the Fourth Amendment, and
“Hernandez fails to allege any facts that would state a separate due process claim.”
28 (Doc. 96 at 9.) Plaintiff appears to have ignored or overlooked this part of the Court’s
Order.
1 III. Rule 12(b)(6) Legal Standard
2 Dismissal of a complaint, or any claim within it, for failure to state a claim under
3 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable
4 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’”
5 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 6 Balistreri v. Pacifica Police Dep’t,901 F.2d 696, 699
(9th Cir. 1990)). In determining 7 whether a complaint states a claim under this standard, the allegations in the complaint are 8 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 9 Outdoor Media Group, Inc. v. City of Beaumont,506 F.3d 895, 900
(9th Cir. 2007). A 10 pleading must contain “a short and plain statement of the claim showing that the pleader is 11 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 12 statement need only give the defendant fair notice of what . . . the claim is and the grounds 13 upon which it rests.” Erickson v. Pardus,551 U.S. 89, 93
(2007) (internal quotation 14 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 15 on its face.” Ashcroft v. Iqbal,556 U.S. 662, 678
(2009); see Bell Atlantic Corp. v. 16 Twombly,550 U.S. 544, 570
(2007). “A claim has facial plausibility when the plaintiff 17 pleads factual content that allows the court to draw the reasonable inference that the 18 defendant is liable for the misconduct alleged.” Iqbal,556 U.S. at 678
. 19 As a general rule, when deciding a Rule 12(b)(6) motion, courts look only to the 20 face of the complaint and documents attached thereto. Van Buskirk v. Cable News 21 Network, Inc.,284 F.3d 977, 980
(9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner 22 & Co., Inc.,896 F.2d 1542
, 1555 n.19 (9th Cir. 1990). If a court considers evidence outside 23 the pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary 24 judgment. United States v. Ritchie,342 F.3d 903
, 907–08 (9th Cir. 2003). A court may, 25 however, consider documents attached to the complaint or incorporated by reference in the 26 complaint or matters of judicial notice without converting the motion to dismiss into a 27 motion for summary judgment.Id.
28
1 IV. Hernandez’s Allegations in the TAC
2 On or about June 30, 2022, Hernandez’s now ex-wife, Mia Ingram, obtained an ex
3 parte Order of Protection (“OP”) against Hernandez.5 (Doc. 99 ¶ 67.) Hernandez did not
4 receive prior notice or an opportunity to respond. (Id. ¶ 68.) Following the issuance of the
5 OP, and under the authority of the City, Chandler Police Officers removed Hernandez from
6 his Chandler residence (“the Residence”) at 701 N. McQueen Rd., Unit 19. (Id. ¶ 69.)
7 On July 11, 2022, the Chandler Municipal Court conducted a hearing on the OP,
8 which it held telephonically due to COVID-19 restrictions, and Mia Ingram appeared with
9 her mother, Defendant Antoinette Ingram, and a former neighbor. (Id. ¶¶ 70, 73.) The
10 remote nature of the hearing “limited Hernandez’s ability to present evidence and cross-
11 examine witnesses in person.” (Id. ¶ 73.) Following the hearing, the court upheld the OP;
12 Hernandez was required to vacate the family residence immediately; and Mia Ingram was
13 given temporary full custody of the couple’s minor children, L.H. and O.H. (Id. ¶ 72.)
14 Between July 11, 2022 and September 2022, Chandler Police contacted Hernandez
15 multiple times regarding the OP, and despite Hernandez’s full compliance and the absence
16 of any new information or reported incidents, officers continued to call and question
17 Hernandez about possible violations. (Id. ¶¶ 74−76.) Around August 18, 2022, the
18 property management company for the Residence, CALCAP, contacted both Hernandez
19 and Mia Ingram regarding the rent. (Id. ¶ 77.) In response, Mia Ingram emailed CALCAP
20 saying she no longer resided at the Residence and it belonged to Hernandez. (Id. ¶ 78.)
21 In an email dated August 18, 2022, Mia Ingram emailed the City saying she no
22 longer resided at the Residence. (Id. ¶ 95.)
23 On or about September 3, 2022, neighbors of the Residence contacted 9-1-1 to
24 report a disturbance involving Mia Ingram’s mother, Defendant Antoinette Ingram. (Id.
25 ¶ 79.) The neighbors reported they saw Defendant Ingram loading a Penske moving truck
26
27
5 Plaintiff calls the OP “phony,” but this allegation is vague and conclusory and is, at
28 bottom, a mere legal conclusion, which is not entitled to a presumption of truth. Pareto v.
FDIC, 139 F.3d 696, 699 (9th Cir. 1998).
1 with Hernandez’s personal belongings. (Id. ¶ 79.) Chandler Police officers were
2 dispatched to the scene, and they observed Defendant Ingram’s removal of property but
3 did not intervene, write a formal report, or initiate any investigation or protective measures,
4 and no one contacted Hernandez regarding the removal of his property. (Id. ¶¶ 80−83.)
5 On or about September 10, 2022, Hernandez moved back into the Residence with
6 the permission of the management company. (Id. ¶ 83.) While Hernandez was inside the
7 Residence, Chandler Police, acting on a report from Mia Ingram, entered the garage
8 without a warrant and called Hernandez to inform him they were outside. (Id. ¶¶ 83−84.)6
9 Police arrested Hernandez with machine guns pointed at his head for allegedly violating
10 the OP, and Hernandez peacefully surrendered. (Id. ¶¶ 85−87.) Following his arrest, the
11 property management company transferred Hernandez from Unit 19 to Unit 10 in the same
12 complex due to the OP and related events, and the lease for Unit 19 was discontinued. (Id.
13 ¶¶ 90, 91.) Afterwards, Hernandez continued living in Unit 10 without a formal lease. (Id.
14 ¶¶ 91, 92.)
15 On September 17, 2022, Hernandez filed a theft report with the Chandler Police,
16 documenting the loss of personal property from the Residence on or about September 3,
17 2022. (Id. ¶ 88.) Hernandez also made a $50,000 claim with Lemonade Insurance
18 Company regarding the stolen property, and on February 7, 2023, the claim was denied.
19 (Id. ¶ 89.) On September 18, 2023, Hernandez executed a written settlement agreement
20 with the property management company “regarding his occupancy, and the transgressions
21 that occurred.” (Id. ¶ 93.)
22
23
6 Similar to his allegations that Mia Ingram obtained a “phony” OP, Plaintiff vaguely
24 alleges Mia Ingram gave a “false report” to Chandler Police, but he does not allege what
25 she told police or what about her statements were false. (Doc. 99 ¶ 84.) Absent any
underlying facts, Plaintiff’s allegations of falsehood are merely conclusory and not entitled
26 to a presumption of truth. Plaintiff also provides a numbered footnote, unattached to any
27 allegations in the body of the TAC, about a “swatting incident” involving Chandler Police
that resulted in Plaintiff’s criminal prosecution, but the facts in the footnote are likewise
28 vague and conclusory, and it is not clear whether or how they relate to the alleged “false
report” from Mia Ingram on September 10, 2022. (See id. at 10 n.18.)
1 At some point after Hernandez’s arrest, City prosecutors pursued criminal charges
2 against Hernandez for violating the OP, even though before Hernandez’s arrest, the City
3 received Mia Ingram’s August 18, 2022 email, stating she no longer lived at the Residence.
4 (Id. ¶¶ 94−96.) On or about November 11, 2022, at a pretrial conference, prosecutor Mario
5 Urrutia told Hernandez he could face incarceration if he did not plead guilty. (Id. ¶ 97.)
6 Hernandez declined to plead guilty and requested counsel, which the court appointed for
7 him. (Id. ¶¶ 98, 99.) After the hearing, Hernandez encountered his son outside and told
8 him he loved him. (Id. ¶ 100.) Shortly afterwards, Chandler Police referred new charges
9 against Hernandez, alleging that speaking to his son violated the OP. (Id. ¶ 101.)
10 At some point during his criminal proceedings, Hernandez became concerned that
11 his appointed counsel did not investigate the facts of his case, challenge the OP, or
12 acknowledge that the OP “had already been appealed,” so Hernandez terminated the
13 representation, and the court appointed new counsel. (Id. ¶¶ 103−105.) Hernandez’s
14 second appointed attorney reviewed the case file and determined that the appellate court
15 had remanded the case and ordered a new hearing on the OP. (Id. ¶ 106.)
16 In January 2023, Hernandez filed for divorce from Mia Ingram and requested a stay
17 of divorce proceedings because his mother, Melila Schuch, who was expected to testify on
18 his behalf, was seriously ill. (Id. ¶ 112.) The family court denied the stay. (Id. ¶ 113.)
19 On February 17, 2023, the Chandler Municipal Court held a new hearing on the OP
20 at which Hernandez represented himself. (Id. ¶ 109.) Mia Ingram did not appear, so the
21 court dismissed/vacated the OP. (Id. ¶ 111.) Despite this dismissal, during divorce
22 proceedings in March 2023, Mia Ingram filed a second OP, relying on the same or similar
23 allegations that had already been discredited, but this OP did not include the minor
24 children. (Id. ¶¶ 114−16.) That same month, Hernandez’s new attorney in his criminal
25 case informed Hernandez that the Chandler Municipal Court dismissed the charges against
26 him for violating the OP based on the August 18, 2022 email Mia Ingram sent to the City
27 stating she no longer lived at the Residence. (Id. ¶¶ 117, 118.)
28 On July 19, 2023, Hernandez received an email from Defendant Deputy City
1 Attorney Rosemary Rosales during discussions of a potential “settlement” with the City
2 Attorney’s Office. (Id. ¶¶ 119, 120.)7 The email referenced possibly hiring an investigator
3 to look into Hernandez’s background, but shortly after sending the message, Rosales
4 “attempted to recall it.” (Id. ¶ 120.)
5 On October 6, 2023, the family court held a divorce trial without complete discovery
6 and without Hernandez or his key witness, his mother Melilah Schuch, present. (Id. ¶ 121.)
7 The court entered a dissolution of marriage decree, relying in part on the June 30, 2022
8 OP, even though that OP had already been vacated earlier in 2023. (Id. ¶ 122.) Hernandez
9 timely appealed the decree, and the Arizona Court of Appeals upheld the family court’s
10 ruling, even though the court acknowledged discovery had not been completed. (Id. ¶ 124.)
11 On December 3, 2024, Hernandez’s mother passed away “during the pendency of
12 litigation,” while Hernandez “was experiencing ongoing legal and personal stress.” (Id.
13 ¶¶ 125, 126.)
14 On March 3, 2025, the Arizona Supreme Court denied Hernandez’s Petition for
15 Review in case number CV-24-0235-PR. (Id. ¶ 127.)8 Shortly after this, on March 24,
16 2025, Hernandez was denied employment with New York Life based on a background
17 check that revealed his arrest for violating the June 30, 2022 OP, even though that OP had
18 been dismissed and vacated. (Id. ¶ 128.)
19 As a result of the above events, Hernandez and his minor children experienced
20 “significant reputational harm, loss of familial association, diminished employment
21 opportunities, and emotional hardship.” (Id. ¶ 129.)
22
23
24
25
7 As in the SAC, it is not clear from Hernandez’s allegations in the TAC what the
26
parties were attempting to settle.
27
8 Hernandez alleges only the case number assigned to his Petition before the Arizona
28 Supreme Court and not any facts from which to identify the underlying legal action—
whether the OP or divorce proceedings—for which he sought appellate review.
1 V. Sua Sponte Review of § 1983 Claims
2 A. Count One: Unlawful Search
3 Hernandez’s Fourth Amendment unlawful search claim against Defendant Ramer
4 in Count One is based on Defendant Ramer’s alleged warrantless entry into Hernandez’s
5 garage on September 10, 2022, when he, along with other officers, went to the Residence
6 and arrested Hernandez for violating the OP. (TAC ¶¶ 135−136.) This claim mirrors
7 similar claims in Count Three of the SAC. (See Doc. 31 ¶ 141.)
8 The Fourth Amendment protects the “right of people to be secure in their persons,
9 houses, papers, and effects, against unreasonable searches and seizures” absent a warrant
10 supported by probable cause. U.S. Const. amend. IV. “An entry into a residence that is
11 not under a warrant, that lacks consent, and that is not justified by exigent circumstances
12 or an emergency is unreasonable.” Mendez v. Cnty. of Los Angeles, 897 F.3d 1067, 1075 13 (9th Cir. 2018). Fourth Amendment protections extend to the curtilage of a house, which 14 is the area around the house that the occupant may “reasonably expect” should be treated 15 “as the home itself.” United States v. Dunn,480 U.S. 294, 300
(1987). A warrantless entry 16 and search of a premises is permitted under the Fourth Amendment “when police obtain 17 the voluntary consent of an occupant who shares, or is reasonably believed to share, 18 authority over the area in common with a co-occupant who later objects to the use of 19 evidence so obtained.” Georgia v. Randolph,547 U.S. 103, 106
(2006). 20 The Court previously dismissed Hernandez’s Fourth Amendment unlawful search 21 claim because it found the allegations in the SAC were too vague and conclusory to state 22 a claim against any named Defendant. (Doc. 96 at 10.) The only allegation that could 23 potentially give rise to such a claim in the SAC was that Defendant Ramer left a voicemail 24 on Hernandez’s phone saying he knew Hernandez was in the residence because “they 25 questioned [Hernandez’s] neighbor maintenance man, entered the certain curtilage around 26 [Hernandez’s] garage, opened the garage door to find [Hernandez’s] car inside . . . and 27 initially tried to open the interior door to [Hernandez’s] home.” (Doc. 31 ¶ 141 (emphasis 28 added).) The Court found these allegations insufficient to state a clam because Hernandez 1 did not allege “that any named Defendants . . . were even on the scene or participated in 2 the alleged unlawful search of the property to show they were personally involved in any 3 alleged violations.” (Id., quoting Iqbal,556 U.S. at 676
(“[A] plaintiff must plead that each 4 Government-official defendant, through the official’s own individual actions, has violated 5 the Constitution.”); Barren v. Harrington,152 F.3d 1193, 1194
(9th Cir. 1998) (“A plaintiff 6 must allege facts, not simply conclusions, that show that an individual was personally 7 involved in the deprivation of his civil rights”).) 8 In the TAC, Hernandez relevantly alleges that, on or about September 10, 2022, 9 Defendant Ramer and other officers “entered Hernandez’s private garage without a 10 warrant, without consent, and in the absence of exigent circumstances.” (Doc. 99 ¶ 136.) 11 He also alleges the officers were “responding to a report from Mia Ingram, who had 12 previously disavowed residence at the property.” (Id. ¶ 138.) This time, Hernandez names 13 Defendant Ramer as one of the officers who allegedly entered the garage and did so 14 “without a warrant, without consent, and absent exigent circumstances.” (Id. ¶ 136.) These 15 allegations are sufficient to cure the deficiencies the Court identified in its prior Order 16 wherein it dismissed this claim because the allegations were too vague to identify the 17 alleged actions of any named Defendant. (See Doc. 96 at 11.) 18 Hernandez nonetheless fails to state a Fourth Amendment claim because he fails to 19 allege any facts showing he has personal knowledge of what Mia Ingram said to police 20 when she reported Hernandez’s suspected unlawful presence at the Residence from which 21 to plausibly infer the search was without her consent. The Court previously took judicial 22 notice of the OP, which states that Mia Ingram was granted “exclusive use and possession 23 of the residence” and prohibits Hernandez from being at or near the Residence. (See 24 Doc. 96 at 12−13.) The Court likewise relied on the police report of Hernandez’s arrest, 25 which Hernandez attached to the SAC, which shows Mia Ingram called the Chandler Police 26 Department to report Hernandez was inside the Residence in violation of the OP, and 27 dispatch confirmed the OP was still in effect. (Id. at 12; Doc. 31-2 at 5.) See Ritchie, 342 28 F.3d at 907–08 (courts may consider “certain materials—documents attached to the 1 complaint, documents incorporated by reference in the complaint, or matters of judicial 2 notice—without converting the motion to dismiss into a motion for summary judgment”). 3 The fact that Mia Ingram no longer lived at the Residence did not nullify the terms of the 4 OP, giving her exclusive right to be there, and absent any non-conclusory allegations that 5 she did not consent to the search, Hernandez fails to state a claim that the search was 6 unlawful. 7 Hernandez’s Fourth Amendment claim additionally fails because, to show a Fourth 8 Amendment violation based on unlawful search, one must first have “a ‘legitimate 9 expectation of privacy in the premises’ searched.” Byrd v. United States,584 U.S. 395
, 10 403 (2018) (quoting Rakas v. Illinois,439 U.S. 128, 143
(1978)). In Rakas, the Supreme 11 Court clarified that this prong is not met simply because someone has a subjective 12 expectation of privacy in a place—such as a burglar entering a summer cabin during the 13 off season—if his presence there is “wrongful,” reasoning that one’s expectation of privacy 14 in such instances is not one “that society is prepared to recognize as ‘reasonable.’” 43915 U.S. 128
, 143, n.12 (quoting Katz v. United States,389 U.S. 347, 361
(1967) (Harlan, J.,
16 concurring)). The Ninth Circuit has applied this same reasoning to someone entering a
17 habitual residence in violation of a court order, stating,
18 Like a burglar, trespasser, or squatter, an individual violating a court no-
contact order is on property that the law prevents him from entering. We
19
therefore hold that such an individual lacks a legitimate expectation of
20 privacy in that place and may not challenge its search on Fourth Amendment
grounds. In doing so, we join not only the Third Circuit, but every other
21
court that has considered the matter.
22
United States v. Schram, 901 F.3d 1042, 1046 (9th Cir. 2018) (citing, e.g., United States v.
23
Cortez-Dutrieville, 743 F.3d 881, 884–85 (3rd Cir. 2014)).
24
Consequently, even if Plaintiff can allege sufficient facts to show Defendant
25
Ramer’s alleged entry into the Residence garage was unreasonable, he does not have
26
standing to assert a Fourth Amendment violation, and the Court will dismiss his Fourth
27
Amendment unreasonable search claim against Defendant Ramer in Count One.
28
1 B. Count Two: False Arrest and Malicious Prosecution
2 Hernandez’s Fourth Amendment false arrest and malicious prosecution claims in
3 Count Two are based on Defendants Ramer’s and Thomas’s alleged arrest of Hernandez
4 at the Residence on charges of violating the OP and on City Prosecutor Mario Urrutia’s
5 “continued prosecution against Hernandez, including threatening incarceration if
6 Hernandez did not plead guilty.” (TAC ¶¶ 150−152.) The claims against Defendants
7 Ramer and Thomas mirror similar claims against unidentified “Defendant Officers” in
8 Count Three of the SAC. (See SAC ¶ 207.)9
9 The Court previously dismissed Hernandez’s Fourth Amendment false arrest and/or
10 malicious prosecution claims because it found Hernandez’s allegations were too vague and
11 conclusory to state a claim against any named Defendant and that Hernandez’s “blanket
12 allegation that ‘Defendants’ lacked probable cause to arrest, charge, or detain him is a legal
13 conclusion unsupported by the facts alleged.” (Doc. 96 at 11.) The Court also found that
14 Hernandez failed to state a claim because “the allegations in the SAC, information
15 contained in documents attached to or referenced in the SAC, and court records of which
16 this Court takes judicial notice, collectively establish that the arrest and prosecution for
17 violating a court order were supported by probable cause” (Id.) See Gasho v. United
18 States, 39 F.3d 1420, 1427(9th Cir. 1994) (“probable cause is an absolute defense to a 19 claim of false arrest and imprisonment”); Lassiter v. City of Bremerton,556 F.3d 1049
, 20 1054 (9th Cir. 2009) (“In order to prevail on a § 1983 claim of malicious prosecution, a 21 plaintiff “must show that the defendants prosecuted [him] with malice and without 22 probable cause” (quoting Freeman v. City of Santa Ana,68 F.3d 1180, 1189
(9th Cir. 23 1995))). “Probable cause exists when, under the totality of the circumstances known to the 24 arresting officers (or within the knowledge of the other officers at the scene), a prudent 25 person would believe the suspect had committed a crime.” Dubner v. City & County of 26 San Francisco,266 F.3d 959, 966
(9th Cir. 2001) (citation omitted).
27
28 9 As previously discussed, Plaintiff’s new claim against Prosecutor Urrutia exceeds
the scope of the Court’s leave to amend, so the Court will summarily dismiss this claim.
1 Hernandez has not cured these noted deficiencies in the SAC. This time, he more
2 specifically alleges that Defendants Thomas and Ramer arrested him at the Residence on
3 September 10, 2022, and he alleges they did so “based on an allegedly violated, phony
4 protective order, despite clear evidence that the reporting party, Mia Ingram, no longer
5 resided at the property and had disavowed any right to enforce such an order in an August
6 18, 2022 email.” (TAC ¶ 150.) Although Hernandez now sufficiently identifies
7 Defendants Thomas and Ramer as the officers who arrested him, his allegations do not
8 support that they lacked probable cause to believe he was committing a crime by returning
9 to the Residence in violation of the OP.
10 Under Arizona Revised Statutes § 13-2810(A), “[a] person commits interfering
11 with judicial proceedings if such person knowingly . . . [d]isobeys or resists the lawful
12 order, process or other mandate of a court.” Ariz. Rev. Stat. § 12-2818(A)(2). Based on 13 the facts alleged in the TAC, the Chandler Municipal Court issued the OP without a hearing 14 on June 30, 2022 and subsequently upheld the OP following a telephonic hearing on July 15 11, 2022. (TAC ¶¶ 67, 72.) As noted, the OP gave Mia Ingram exclusive use and 16 possession of the Residence and prohibited Hernandez from being there. Hernandez also 17 alleges in the TAC that he was inside the Residence at the time of his arrest. (TAC 18 ¶¶ 83−85, 150.) Taken together, these facts are sufficient for a prudent officer in 19 Defendants Thomas and Ramer’s positions to have believed Hernandez was violating the 20 OP at the time and was therefore committing a crime under § 13-2810(A). 21 Hernandez’s bare allegation that the OP was “phony” does not compel a different 22 conclusion. The allegation is vague and, in any event, is an unsupported legal conclusion 23 that does not comport with the factual allegations showing the Chandler Municipal Court 24 issued the OP on June 30, 2022, upheld it following a hearing on July 10, 2022, and did 25 not vacate it until February 17, 2023. (Id. ¶¶ 67, 72, 109–111.) Hernandez’s apparent 26 belief that the court acted improperly when it issued and/or upheld the OP does not change 27 the fact that the OP was issued by a court of law and was therefore a legally binding order 28 at the time of his arrest. Hernandez does not allege any nonconclusory facts showing 1 otherwise. Instead, he alleges only that he was arrested “despite clear evidence that the 2 reporting party, Mia Ingram, no longer resided at the property,” and she sent an email to 3 the City, wherein she “disavowed residency at the property.” (Id. ¶¶ 95, 150.) These facts, 4 however, do not change the probable cause determination. First, probable cause must be 5 evaluated from the perspective of the arresting officer, and Hernandez has not alleged any 6 facts from which to infer Defendants Thomas and Ramer were aware of Mia Ingram’s 7 email to the City saying she no longer resided at the Residence. 8 More fundamentally, even if known to the officers at the time, the fact that Mia 9 Ingram no longer resided at the Residence does not make Hernandez’s presence there 10 during his arrest lawful. Simply put, the OP prohibited Hernandez from being at or near 11 the Residence and did not make this restriction contingent upon Mia Ingram continuing to 12 reside at the property. (See Doc. 96 at 12−13.) Thus, despite Mia Ingram moving out, and 13 the property management company telling Hernandez he could move back in, being at the 14 Residence while the OP was in effect violated a court order, and based on their knowledge 15 of the OP and Hernandez’s presence at the Residence, Defendants Ramer and Thomas had 16 probable cause to believe Hernandez was committing a crime. See United States v. Martin, 17509 F.2d 1211, 1213
(9th Cir. 1975) (to determine probable cause, courts “must consider 18 all the facts known to the officers and consider all the reasonable inferences that could be 19 drawn by them before the arrest”). 20 Hernandez’s allegation that the charges against him for violating the OP were later 21 dropped also does not change alter the probable cause analysis because the decision 22 whether to pursue criminal charges may be based on numerous discretionary factors 23 unrelated to probable cause, such that “dismissal [is] not probative of whether the arresting 24 officers acted with probable cause.” De Anda v. City of Long Beach,7 F.3d 1418
, 1422 25 (9th Cir. 1993). Even ultimate vindication on a charge does not defeat a showing of 26 probable cause. See Beauregard v. Wingard,362 F.2d 901, 903
(9th Cir. 1966) (“[W]here
27 probable cause []exist[s,] civil rights are not violated by an arrest even though innocence
28 may subsequently be established.”).
1 Because probable cause is a complete defense to false arrest and malicious
2 prosecution, the Court will dismiss these claims against Defendants Ramer and Thomas in
3 Count Two for failure to state a claim.
4 C. Count 3: Retaliation for Protected Speech
5 In Count 3, Hernandez brings a First Amendment retaliation claim against
6 Defendant Officer Cohen for allegedly retaliating against him for peacefully, and without
7 any physical contact, telling his son “I love you” following a court proceeding on or about
8 November 11, 2022. (TAC ¶ 163.) Hernandez alleges that Defendant Cohen retaliated
9 against him by referring him for criminal prosecution for an alleged violation “of the phony
10 protective order.” (Id.)
11 Even though Hernandez did not previously assert a First Amendment retaliation
12 claim against Defendant Cohen, the addition of this claim in the TAC does not exceed the
13 Court’s grant of leave to amend because Hernandez set forth his intention to include this
14 claim in his draft Third Amended Complaint. (See Doc. 86-1 at 4.) Nevertheless, the Court
15 will sua sponte dismiss the retaliation claim against Cohen because Hernandez fails to state
16 a claim upon which relief can be granted. The Supreme Court has explained that a plaintiff
17 asserting a claim against an investigating agency for retaliatory prosecution must allege,
18 and establish the absence of, probable cause:
19
[T]he complexity of causation in a claim that prosecution was induced by an
20 official bent on retaliation should be addressed specifically in defining the
elements of the tort. Probable cause or its absence will be at least an
21 evidentiary issue in practically all such cases. Because showing an absence
22 of probable cause will have high probative force, and can be made mandatory
with little or no added cost, it makes sense to require such a showing as an
23 element of a plaintiff's case, and we hold that it must be pleaded and proven.
24
Hartman v. Moore, 547 U.S. 250, 265–66 (2006). Here, Hernandez has not alleged, and
25
could not establish, the absence of probable cause because the OP (a) identifies his children
26
as “Protected Persons” and (b) states that he “shall have no contact with Protected Persons
27
except through attorneys, legal process and/or court hearings.” (June 30, 2022 Order of
28
Protection at 1.) While Hernandez disagrees with the entry of the OP, he acknowledges
1 that it was in effect when he contacted his son “following a court proceeding.” (TAC ¶¶ 67,
2 109–111, 163.) Based on his own allegations and the language of the OP, it is readily
3 apparent that Cohen had probable cause to recommend criminal charges against Hernandez
4 for violation of the OP, and this claim therefore must be dismissed.
5 In this same count, Hernandez alleges that Defendant City Prosecutor Rosales
6 retaliated against him by suggesting in an email, which she inadvertently sent to
7 Hernandez, “that the City may consider using an investigator to ‘look into’ [Hernandez]
8 during active litigation.” (Id. ¶ 163.) By this, Hernandez effectively attempts to reconstruct
9 his Negligent Infliction of Emotional Distress (HIED) claim against Defendant Rosales in
10 Count 7 of the SAC, wherein he alleged Rosales “inadvertently mention[ed]” during
11 unspecified “settlement talks” between Hernandez and the City that “they may consider
12 hiring an investigator to look into Hernandez’s background.” (Doc. 31 ¶ 317.) The Court
13 previously dismissed this claim because the allegations were too vague and conclusory to
14 meet federal pleading standards, finding that “Hernandez does not allege any other facts
15 about this incident from which to infer that this suggestion violated his federal or
16 constitutional rights.” (Doc. 96 at 18.) The Court also dismissed the claim on the ground
17 it was not clear what role Rosales played in the settlement discussions from which to infer
18 she was acting under color of state law. (Id.)
19 Hernandez now alleges Defendant Rosales suggested investigating him in an email
20 she inadvertently sent to him, and she allegedly did so in retaliation against him for
21 engaging in protected activity. (TAC ¶ 167) He also alleges that his protected activities
22 “includ[ed] filing internal complaints, asserting his innocence in criminal proceedings,
23 submitting government claims, and initiating [unspecified] legal actions to challenge the
24 conduct of local officials.” (TAC ¶¶ 165, 167.) Hernandez fails to allege any facts
25 connecting these alleged protected activities to Defendant Rosales’ email, and his
26 allegations are once again too vague and conclusory for the Court to infer either that the
27 email constituted state action, the “suggestion” to investigate Hernandez was in retaliation
28 for any protected conduct, or that this “suggestion” did not serve a legitimate law
1 enforcement purpose. Cf. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (to state
2 a retaliation claim in the prison context, a plaintiff must allege facts showing the alleged
3 retaliatory action “did not reasonably advance a legitimate correctional goal”). Whether
4 stated as a NIED claim or a First Amendment retaliation claim, Hernandez has not resolved
5 any of the pleading deficiencies of his prior attempt to state a claim against Defendant
6 Rosales, and the Court will dismiss Defendant Rosales from Count 3.
7 D. Count 6: Failure to Intervene
8 In Count 6, Hernandez asserts a Fourteenth Amendment due process claim against
9 Individual Chandler Defendants Officers Etringham, Phelps, Trujillo, and Hernandez.
10 (TAC at 28.) These claims are based on Defendant Antoinette Ingram’s alleged unlawful
11 removal of property from the Residence in the presence of these Defendants and their
12 alleged failures to write a report, file charges, or take any other action to investigate the
13 alleged theft of Hernandez’s belongings. (Id. ¶¶ 207−219.) The Court addressed and
14 dismissed these same claims in the SAC, finding that Hernandez’s allegations of a
15 “robbery” at that time were too vague about what occurred to satisfy threshold pleading
16 standards for stating a claim. (Doc. 96 at 16.)
17 More substantively, the Court stated, “even if it is plausible to infer on the facts
18 alleged that Defendant Ingram stole a truckload of items from Hernandez’s residence in
19 the presence of Defendant Officers, and the officers did nothing to intervene . . . these facts
20 fail to state a Fourteenth Amendment due process claim.” (Id.) The Court explained:
21 The Due Process Clause provides that no State shall “deprive any person of
life, liberty, or property, without due process of law.” U.S. Const. amend.
22
XIV. This provision “is phrased as a limitation on the State’s power to act,
23 not as a guarantee of certain minimal levels of safety and security.”
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989)
24
(“[N]othing in the language of the Due Process Clause itself requires the
25 State to protect the life, liberty, and property of its citizens against invasion
by private actors.”); see also Johnson v. City of Seattle, 474 F.3d 634, 639
26
(9th Cir. 2007) (“Because the City of Seattle had no constitutional duty to
27 protect the Pioneer Square Hernandezs against violence from members of the
riotous crowd, ‘its failure to do so—though calamitous in hindsight—simply
28
does not constitute a violation of the Due Process Clause’” (quoting
DeShaney, 489 U.S. at 195)). Similarly, the Due Process Clause does not
1
confer a right to a thorough investigation of third-party harm. Gomez v.
2 Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (“[W]e can find no instance
where the courts have recognized inadequate investigation as sufficient to
3
state a civil rights claim unless there was another recognized constitutional
4 right involved.”).
5
(Id.)
6
Hernandez’s attempt to restate his claims by adding additional facts to clarify what
7
allegedly occurred fails to remedy this fundamental legal insufficiency of his intended
8
claims. The Court will dismiss Hernandez’s Fourteenth Amendment due process claims
9
in Count 6 for failure to state a claim.
10
VI State Law Claims
11
A. Count 10: Defamation
12
To state a claim for defamation under Arizona law, a plaintiff must alleged facts
13
showing (1) the defendant published a false and defamatory statement, and (2) the
14
defendant either (a) knew the statement to be false and defamatory, (b) acted in reckless
15
disregard to these matters, or (c) acted negligently in failing to ascertain them. Peagler v.
16
Phoenix Newspapers, Inc., 560 P.2d 1216, 1222 (Ariz. 1977).
17
Plaintiff identifies as Defendants in Count 10 Antoinette Ingram, Mia Ingram,
18
Jonelle Harris, and “John/Jane Does,” the latter of whom he names only as the spouses of
19
these Defendants. (TAC at 39.) The Court already found that attempting to add Mia
20
Ingram and Jonelle Harris as new Defendants, where Plaintiff did not seek to do so in his
21
Motion to Amend, exceeds the Court’s narrow grant of leave to amend. Accordingly, the
22
only claim within the scope of the Court’s leave to amend in Count 10 is Plaintiff’s
23
defamation claim against Defendant Antoinette Ingram.
24
Plaintiff alleges that “Defendants,” as a group, made “multiple false and defamatory
25
statements” about him; the statements were made “to law enforcement, courts, housing
26
providers, and others for the purpose of causing [him] legal, reputational, and familial
27
harm”; and the statements were “factually false and made with actual malice or reckless
28
disregard for the truth.” (Id. ¶¶ 265−66.)
1 As an initial matter, Plaintiff does not allege any facts showing that “Defendants”
2 published any allegedly false and defamatory statements. Instead, he alleges only that the
3 statements were made “in court filings, sworn declarations, police reports, emails, and
4 verbal testimony.” (Id. ¶ 269.) But even setting aside whether these contexts qualify as
5 “publishing” a false statement, Hernandez’s allegations are, once again, merely conclusory
6 and fail to satisfy threshold pleading standards.
7 In bringing this claim against Defendant Antoinette Ingram, Hernandez effectively
8 attempts to reassert his § 1983 defamation claim against her in Count 6 of the SAC, which
9 the Court dismissed for failure to state a claim, primarily on the ground that Ms. Ingram is
10 not a state actor who can be sued under § 1983. (See Doc. 96 at 19.) Additionally, as
11 applicable here, the Court found that Hernandez’s allegations were too conclusory to state
12 a claim, explaining that Hernandez “only generally alleges that false statements were made
13 against him at various court hearings . . . he does not identify what was said that was
14 allegedly false or attribute any specific statements to Defendant Ingram.” (Doc. 96 at 19.)
15 Although now stated as a state law claim, which does not require naming a state actor,
16 Plaintiff fails to cure these fundamental pleading deficiencies. Most glaringly, Plaintiff
17 does not identify any statements made by any Defendants, including Defendant Antoinette
18 Ingram, that were allegedly false and defamatory and therefore fails to put Ingram on notice
19 of the bases of his defamation claim against her. Although Defendant Ingram did not move
20 to dismiss this claim, the deficiencies are obvious, so the Court will sua sponte dismiss this
21 claim in Count 10. See Baker v. Dir., U.S. Parole Comm’n, 916 F.2d 725, 727(D.C. Cir. 22 1990) (“Because it is patently obvious that Baker could not have prevailed on the facts 23 alleged in his complaint, we find that sua sponte dismissal was appropriate.”). 24 B. Count 12: IIED 25 Hernandez’s purported IIED claim against “all Defendants” in Count 12 suffers 26 from the same pleading deficiencies. Hernandez merely alleges in conclusory fashion that 27 all Defendants “engaged in a prolonged course of conduct designed to humiliate, discredit, 28 and emotionally destabilize Plaintiff.” (TAC ¶ 290.) He then summarily lists the same 1 alleged violations from other counts that the Court has found fail to state a claim—such as 2 that Defendants “caus[ed] his arrest without probable cause”—or he adds new conclusory 3 allegations—such as that Defendants “fabricat[ed] allegations of abuse to obtain a 4 protective order,” blocked him from recovering stolen property, refused to “correct known 5 errors,” continued to prosecute him despite exculpatory evidence, and caused the death of 6 his mother, Melilah Schuch. Because these allegations are merely conclusory, the Court 7 will dismiss Hernandez’s IIED claim in Count 12.10 8 C. Count 13: Malicious Prosecution 9 In Count 13, Hernandez asserts a state law malicious prosecution claim against the 10 City based on vicarious liability for its employees’ alleged malicious prosecution of 11 Hernandez on charges of violating the OP. For the reasons already addressed regarding 12 Plaintiff’s § 1983 claim for false arrest, this claim fails because the facts before the Court 13 show that Plaintiff’s arrest and prosecution were supported by probable cause, which is a 14 complete defense to false prosecution under Arizona law. See Slade v. City of Phoenix, 15 301,541 P.2d 550, 553
(Ariz. 1975) (probable cause “constitutes a complete and absolute 16 defense to an action for malicious prosecution” ); Hockett v. City of Tucson,678 P.2d 502
, 17 505 (Ariz. Ct. App. 1983) (“The law is well settled that the existence of probable cause is 18 a complete defense to claims of false imprisonment and malicious prosecution” ); Cullison 19 v. City of Peoria,584 P.2d 1156, 1160
(Ariz. 1978) (“the existence of probable cause to
20 institute an action is a complete defense to malicious prosecution without regard to the
21 existence of malice”).
22
23
24
25
10 In their Motion to Dismiss Third Amended Complaint, the Chandler Defendants
26 argue as an additional ground for dismissing any state law claims against the Individual
27 Chandler Defendants that Hernandez failed to comply with Arizona’s Notice of Claim
statute before filing his claims. (Doc. 103 at 14−17.) Because the Court will dismiss these
28 claims and Defendants for failure to state a claim, it need not address this alternate ground
for dismissal.
1 D. Count 15: Civil Conspiracy
2 In Count 15, Hernandez asserts a civil conspiracy claim against Defendant
3 Antoinette Ingram and others based on their alleged “agreement, either expressly or tacitly,
4 to initiate and support legal proceedings against Plaintiff Mario Hernandez based on
5 knowingly false allegations, with the intent to cause him personal, legal, and financial
6 harm.” (TAC ¶ 315.)11 Hernandez’s only allegations of a conspiracy are wholly
7 conclusory. Although Hernandez alleges that each named and unnamed Defendant
8 “committed overt acts in furtherance of the conspiracy, including testifying falsely or
9 misleadingly, submitting false documents, making unlawful arrests, suppressing
10 exculpatory evidence, or discouraging Plaintiff from asserting his legal rights,” he does not
11 identify any specific acts of any Defendant, including Defendant Antoinette Ingram, to
12 support either that anyone engaged in the alleged conduct or did so as part of a coordinated
13 effort to harm Hernandez. Like his other asserted state law claims, his conspiracy claim
14 against Defendant Antoinette Ingram is based on nothing more than the formulaic
15 recitation of the elements of claim, which does not suffice to meet basic pleading standards.
16 Twombly, 550 U.S. at 570; Iqbal,556 U.S. at 678
. The Court will dismiss this claim for
17 failure to state a claim.
18 VII. Failure to Serve
19 Hernandez’s intended claims against Defendant Antoinette Ingram and the Doe
20 Defendants additionally warrant dismissal under Rule 4(m) of the Federal Rules of Civil
21 Procedure for failure to serve.
22 On October 18, 2024, the Court required Hernandez to show cause why the SAC
23 should not be dismissed as to these Defendants for failure to timely serve under Rule 4.
24 (Doc. 78.) Hernandez then filed a “Motion to Show Cause for Additional Time to Serve
25 Doe Defendants and Defendant Antoinette Ingram,” seeking a sixty-day extension of time
26
27
11 The other intended Defendants are Mia Ingram and Jonelle Harris, whom the Court
28 already dismissed because adding them as new Defendants exceeds the Court’s grant of
leave to amend, and unidentified “Chandler Officials” and “John/Jane Does.” (TAC at 47.)
1 to serve these Defendants. (Doc. 80 at 5.) Because the Individual Chandler Defendants’
2 Motion to Dismiss was then pending, and it was possible the claims against the unserved
3 Defendants would be dismissed, the Court granted Hernandez a 65-day extension of time
4 after the Court ruled on the Motion to Dismiss to serve the unserved Defendants,
5 “contingent upon the survival of any claims against Defendant [Antoinnette] Ingram and
6 the Doe Defendants.” (Doc. 85 at 2.)
7 Even though no previously pending claims in the SAC survived the Court’s grant
8 of that Motion to Dismiss, because Hernandez asserted or reasserted claims against the
9 unserved Defendants in the TAC, he was still required to serve those Defendants, and he
10 has not shown he completed service on them, even though the original 65-day extension of
11 time to do so—whether calculated from the date of the Court’s ruling on the Motion to
12 Dismiss or the date Hernandez filed the TAC—has elapsed.
13 Following the Court’s entry of its December 5, 2025 show cause order regarding
14 the unserved defendants, (Doc. 135), Hernandez agreed to dismiss thirteen of the unserved
15 defendants, but he sought to maintain his claims against one deceased unserved defendant,
16 Jonelle Harris, and he sought to extend the time to serve several additional unserved
17 defendants: Mia Ingram, Antoinette Ingram, County of Maricopa, Arizona Department of
18 Economic Security (“DES”), Sean Duggan, and Rosemary Rosales. (Doc. 138.) Since
19 then, Hernandez has successfully served Maricopa County, rendering his motion moot as
20 to that defendant. (Doc. 140.) The State responded to the extension request to oppose any
21 extension of time to serve DES because it is a non-jural entity. (Doc. 144.) The Chandler
22 Defendants replied to Hernandez’s extension request, arguing that he failed to demonstrate
23 good cause warranting an extension. (Doc. 146.)
24 “The burden of establishing good cause under Fed. R. Civ. P 4(m) is on the
25 plaintiff.” Navarro v. United States, 2024 WL 3498361, at *5 (D. Ariz. 2024) (citing 26 Boudette v. Barnette,923 F.2d 754, 755
(9th Cir. 1991)). Hernandez has failed to show 27 good cause. He has provided no evidentiary support for his contention that he retained 28 process servers to effect personal service on Mia Ingram and Antoinette Ingram or that 1 they have engaged in “potential avoidance of service.” (Doc. 138 at 3–4). With respect to 2 DES, as the State notes, it is not a jural entity. Finally, Hernandez does not even attempt 3 to explain why he has not yet served Sean Duggan or Rosemary Rosales. Accordingly, the 4 Court will deny Hernandez’s request. 5 VIII. Hernandez’s Minor Children 6 On December 8, 2025, the Court entered an order to show cause as to why 7 Hernandez’s minor children should not be dismissed from this matter given that it appeared 8 that Hernandez lacked the capacity to bring suit on behalf of those children. (Doc. 137.) 9 Hernandez timely responded and requested that the Court either appoint a guardian ad litem 10 for his minor children or authorize him as a “next friend” to pursue claims on their behalf. 11 (Doc. 139.) The Chandler Defendants replied, arguing for dismissal of the minors without 12 prejudice under Rule 17(c). (Doc. 141; see also Doc. 143 (State’s joinder in Chandler 13 Defendants’ reply).) 14 Given that the Court will dismiss all claims and Defendants in this action, the Court 15 will deny Hernandez’s request. Hernandez’s minor children will be dismissed without 16 prejudice as parties to this action. 17 IX. Hernandez’s Motion for Preliminary Injunction 18 To obtain a preliminary injunction, the moving party must show “that he is likely to 19 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 20 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 21 the public interest.” Winter v. Natural Res. Def. Council, Inc.,555 U.S. 7, 20
(2008). The 22 moving party has the burden of proof on each element of the test. Envt’l. Council of 23 Sacramento v. Slater,184 F. Supp. 2d 1016, 1027
(E.D. Cal. 2000). 24 The Court lacks jurisdiction over claims for injunctive relief that are not related to 25 the claims pleaded in the operative complaint. See Pac. Radiation Oncology, LLC v. 26 Queen’s Med. Center,810 F.3d 631, 636
(9th Cir. 2015) (“[w]hen a plaintiff seeks 27 injunctive relief based on claims not pled in the complaint, the court does not have the 28 authority to issue an injunction”); see also Devose v. Herrington,42 F.3d 470, 471
(8th 1 Cir. 1994) (per curiam) (a party seeking injunctive relief must establish a relationship 2 between the claimed injury and the conduct asserted in the complaint). 3 In his Motion for Temporary Restraining Order and Preliminary Injunction, 4 Hernandez moves the Court to “stay enforcement of child support, custody, and property- 5 related orders issued in the Arizona state family court proceedings that are subject of 6 Plaintiff’s pending claims under42 U.S.C. § 1983
.” (Doc. 102 at 1−2.) Without 7 identifying any related claims in the SAC, Hernandez broadly states in his Moton that the 8 family court violated his Fourteenth Amendment rights through “[e]x parte orders,” 9 “[d]enial of discovery,” “[l]ack of legal representation,” and “[i]nvoluntary removal from 10 the family home without a fair hearing.” (Id. at 2.) 11 This Motion fails for several reasons. First, Hernandez fails to state any claims 12 against any Defendants related to the family court orders he now seeks to stay or even to 13 allege any facts about these orders in the TAC to show they were improperly issued. By 14 moving for a stay of these orders, Hernandez therefore seeks relief as to “claims not pled 15 in the complaint” over which the Court lacks jurisdiction to issue an injunction. Pac. 16 Radiation,810 F.3d at 636
. 17 More fundamentally, even if Herandez could state a claim based on the family court 18 orders he seeks to stay, as the Court previously explained when denying a similar Motion 19 (see Doc. 61 at 18), federal courts are barred from ordering relief related to a plaintiff’s 20 purported injuries from a state court judgment under both the Rooker-Feldman doctrine 21 and the Anti-Injunction Act,28 U.S.C.A. § 2283
. The Rooker-Feldman doctrine bars 22 subject matter jurisdiction where, as here, “a federal plaintiff asserts as a legal wrong an 23 allegedly erroneous decision by a state court[] and seeks relief from a state court judgment 24 based on that decision.” Noel v. Hall,341 F.3d 1148, 1156
(9th Cir.2003). Additionally, 25 under the Anti-Injunction Act, the Court “may not grant an injunction to stay proceedings 26 in a State court except as expressly authorized by Act of Congress, or where necessary in 27 aid of its jurisdiction, or to protect or effectuate its [own] judgments.”28 U.S.C.A. § 2283
. 28 This mandate “extends not only to injunctions affecting pending proceedings, but also to 1 injunctions against the execution or enforcement of state judgments.” Henrichs v. Valley 2 View Dev.,474 F.3d 609
, 616 (9th Cir. 2007). Put simply, “[a]n injunction may not be 3 used to evade the dictates of the Act if the injunction effectively blocks a state court 4 judgment.” Id. Based on these mandates, the Court will summarily deny Hernandez’s 5 Motion for Temporary Restraining Order and Preliminary Injunction. 6 X. Further Leave to Amend Will not be Permitted 7 Hernandez has now had three opportunities to amend his Complaint over the two- 8 plus years of litigation since Defendants removed this case to federal court, and he appears 9 unable to state a claim against any defendant despite specific instructions from the Court. 10 Moreover, following the Court’s last grant of leave to amend, Hernandez failed to comply 11 with the Court’s Order by attempting to add numerous new claims and defendants. As 12 shown above, Hernandez’s attempted claims are largely frivolous, fail to satisfy basic 13 pleading standards for stating a claim, and/or are legally insufficient in ways that cannot 14 be cured through amendment. Accordingly, the Court finds further opportunities to amend 15 would be futile and will dismiss this action without leave to amend. See Moore,885 F.2d 16 at 538
(repeated failure to cure deficiencies is one of the factors to be considered in deciding 17 whether justice requires granting leave to amend). “Leave to amend need not be given if a 18 complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc., 19885 F.2d 531, 538
(9th Cir. 1989). The Court’s discretion to deny leave to amend is 20 particularly broad where a plaintiff has previously been permitted to amend his complaint. 21 Sisseton-Wahpeton Sioux Tribe v. United States,90 F.3d 351, 355
(9th Cir. 1996).
22 IT IS ORDERED:
23 (1) The reference to the Magistrate Judge is withdrawn as to Defendant State of
24 Arizona’s Motion to Dismiss Third Amended Complaint (Doc. 100), Plaintiff’s Motion for
25 Temporary Restraining Order and Preliminary Injunction (Doc. 102), Chandler
26 Defendants’ Motion to Dismiss Third Amended Complaint (Doc. 103), Defendant
27 Lemonade Insurance Company’s Motion to Dismiss (Doc. 116), Hernandez’s request for
28 an extension of time to serve certain defendants, (Doc. 138), and Hernandez’s request that
1 | the Court appoint a guardian ad litem to protect his minor children’s interests or, in the
2| alternative, authorize him to pursue claims “as a next friend,” (Doc. 139).
3 (2) Defendants the Arizona Department of Economic Security, Lemonade
4 Insurance Company, Sean and Jane Doe Duggan, Geoffrey and Jane Doe Wrescher, Mario
5 | and Jane Doe Urrutia, Mia and John Doe Ingram, and Jonelle and John Doe Harris, and
6| Plaintiffs claims in Counts 4, 5, 7, 8, 11, 14, 16, 17, 18, and 19 are sua sponte dismissed
7 | without prejudice as exceeding the scope of the Court’s limited leave to amend in Doc. 96;
8 (3) The Clerk of Court is directed to withdraw Defendant Lemonade Insurance
Company’s Motion to Dismiss at Doc. 113; Defendant Lemonade Insurance Company’s
10 | revised Motion to Dismiss at Doc. 116 is denied as moot.
11 (4) Defendant State of Arizona’s Motion to Dismiss Third Amended Complaint
(Doc. 100) is granted; the State is dismissed under Rule 12(b)(1) for lack of subject-matter
13 | jurisdiction.
14 (5) | Chandler Defendants’ Motion to Dismiss Third Amended Complaint
15 | (Doc. 103) is granted, and all remaining claims are dismissed under Rule 12(b)(6) for
16| failure to state a claim.
17 (6) Plaintiff's Motion for Temporary Restraining Order and Preliminary
18 | Injunction (Doc. 102) and Plaintiff's request for appointment of a guardian ad litem for his
19 | minor children, or to be authorized to pursue claims on their behalf as “next friend” (Doc.
139), are denied.
21 (7) This action is dismissed without leave to amend; the Clerk of Court is
directed to enter judgment accordingly.
23 Dated this 7th day of January, 2026. fy
24 /
25 f (
26 H le Sharad H. Desai
27 United States District Judge
28