Barkley v. Tempe, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Joshua S Barkley,
Plaintiff,
v.
City of Tempe, et al.,
Defendants.
No. CV-26-06612-PHX-KML
ORDER
Plaintiff Joshua S. Barkley filed “[t]his civil-rights action” based on his “public-
records requests and complaints concerning municipal ambulance reporting, followed by
. . . police activity, code-enforcement entry, surveillance, and construction activity.” (Doc.
1 at 11.) Barkley must file a statement addressing whether he has stated plausible claims
for relief.
I. Background
The complaint is difficult to follow but it appears Barkley served as an “ambulance-
service labor-officer” connected to the City of Tempe. (Doc. 1 at 17.) Either before or after
being removed from that position, Barkley submitted “public-records requests and written
complaints concerning Ambulance Revenue and Cost Reports.” (Doc. 1 at 14.) Barkley
identifies that as “protected activity” that allegedly led to “repeated monitoring near his
home by plainclothes personnel, unmarked vehicles, neighborhood observation points,
camera systems, and Phoenix Police presence.” (Doc. 1 at 16.)
According to Barkley, in retaliation for his public-records requests and complaints
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the City of Tempe directed a “hydrovac operation” near his home. (Doc. 1 at 20.) An
“unmarked contractor” also performed “turf work” on Barkley’s property. (Doc. 1 at 21.)
And Barkley “observed construction trucks from multiple contractors . . . entering or
operating behind” a vacant house near Barkley’s. (Doc. 1 at 21.) Barkley “sought municipal
intervention” regarding these construction activities but the City refused to act. (Doc. 1 at
21.)
Barkley also “observed multiple individuals” on the roof of an adjacent home
“recording [Barkley] in his backyard.” (Doc. 1 at 23.) He called the police but, after they
arrived, the individuals who had been on the roof were allowed to leave. (Doc. 1 at 23.)
Unrelated to the rooftop incident, Barkley observed a Phoenix Police cruiser “providing
security or traffic presence” in Tempe. He submitted a public records request for
documents that would allow the Phoenix Police to operate in Tempe. No records were
produced. Finally, Barkley “observed a full-sized truck travel at an allegedly unsafe or
uncontrolled speed through standing water and repeatedly spin its tires near the west side
of [his] property.” (Doc. 1 at 25.) An individual who Barkley believes was an “off-duty or
undercover officer” observed the truck performing these maneuvers. The truck left the
scene but returned and repeated the maneuvers. Barkley believes this was “intended to
induce [him] to chase the truck and thereby produce a police stop or arrest.” (Doc. 1 at 25-
26.)
Based on these events, Barkley names as defendants:
• City of Tempe,
• Greg Ruiz, the “senior executive municipal official for the City of Tempe”,
• Tempe Chief of Police Kenneth D. McCoy,
• Jeff Tamulevich, Director of Community Development and Code
Enforcement, and
• Irma Hollamby Cain, Deputy Director of Community Health and Human
Services.
(Doc. 1 at 13-14.) Barkley asserts four claims.
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The first claim is identified as “First Amendment Retaliation.” (Doc. 1 at 28.)
Barkley alleges Ruiz and McCoy directed, authorized, ratified, or failed to stop the
surveillance of his home because of Barkley’s public-records requests. (Doc. 1 at 29.)
There are no facts regarding actions taken by either of these individuals; Barkley only
alleges Ruiz and McCoy were aware of his public-records requests.
Barkley’s second claim is “Fourth Amendment Unreasonable Search and Seizure”
brought against McCoy. (Doc. 1 at 30.) Barkley alleges the entry onto his curtilage and
“prolonged monitoring directed at [his] home” violated his reasonable expectation of
privacy. Barkley does not allege McCoy personally took those actions but McCoy allegedly
“failed to investigate, preserve evidence, correct, discipline, or stop the challenged
conduct” after Barkley complained. (Doc. 1 at 31.)
Barkley’s third claim is “Fifth and Fourteenth Amendment Taking, Due Process,
and Equal Protection” brought against Tamulevich and Cain. (Doc. 1 at 31.) These
defendants allegedly “selectively used or ratified community-development, code-
enforcement, and housing authority against [his] property.” (Doc. 1 at 31-32.) There are no
allegations explaining what actions Tamulevich and Cain personally took. But Barkley
alleges the activities by unidentified actors constituted a taking because they were meant
to decrease the value of his property.
Barkley’s fourth and final claim is a Monell claim against the City of Tempe. (Doc.
1 at 33.) Although it is not clear, Barkley appears to believe his three other claims should
also be viewed as involving policies or customs of the city.
II. Analysis
Courts often dismiss a complaint when it “lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Facts lack an arguable basis when
they “are fanciful, fantastic and delusional.” Frost v. Office of Attorney Gen., No. 17-cv-
04983-JSW, 2018 WL 6704137, at *1 (N.D. Cal. Dec. 20, 2018) (citing Denton v.
Hernandez, 504 U.S. 25, 33 (1992)). In addition, a court may dismiss a complaint that fails
to state a claim before any defendant appears provided the court “give[s] notice of its
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intention to dismiss and afford[s] plaintiff[] an opportunity to at least submit a written
memorandum in opposition to such motion.” Reed v. Lieurance, 863 F.3d 1196, 1207 (9th
Cir. 2017) (simplified).
Barkley’s allegations of surveillance of his backyard from neighboring rooftops,
unauthorized “turf work,” and trucks attempting to lure him into a chase come perilously
close to—or surpass—the “fanciful, fantastic and delusional” line. Frost, No. 17-cv-04983-
JSW, 2018 WL 6704137, at *1. Barkley must file a statement explaining his good-faith
belief that ties these events to the named defendants. But even assuming the court does not
view the facts as fanciful, Barkley must file a statement addressing whether he has stated
claims for relief against any named defendant.
“[A] complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(simplified). This is not a “probability requirement,” but a requirement that the factual
allegations show “more than a sheer possibility that a defendant has acted unlawfully.” Id.
A claim is facially plausible “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. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-
specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
“Government officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.” Id. at 676. “[E]ach Government
official . . . is only liable for his or her own misconduct.” Id. at 677. Here, Barkley has not
alleged sufficient facts showing the individual defendants were personally involved in the
underlying events. Instead, he has made conclusory allegations that the individuals
directed, authorized, ratified, or failed to stop certain events. (Doc. 1 at 29.) That is not
enough. A complaint must include “more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Iqbal, 556 U.S. at 678.
As for his claim against Tempe, the city cannot be sued “under § 1983 solely
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because an injury was inflicted by its employees or agents.” Long v. County of Los Angeles,
442 F.3d 1178, 1185 (9th Cir. 2006). In general, a municipality may be held liable in three
circumstances: (1) the “execution of a government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflict[ed] the injury”; (2) a municipality failed to train employees in a manner so
inadequate that the “policymakers of the city can reasonably be said to have been
deliberately indifferent to the need”; or (3) “an official with final policy-making authority”
was the tortfeasor or ratified a subordinate’s unconstitutional action. Rodriguez v. Cnty. of
Los Angeles, 891 F.3d 776, 802-03 (9th Cir. 2018) (simplified). Barkley does not appear
to allege underlying facts supporting any of these three. To be clear, Barkley must allege
facts, not legal conclusions, if he wishes to proceed.
III. Statement and Artificial Intelligence (“AI”)
Barkley must file a statement explaining the following: 1) an explanation why his
factual allegations do not qualify as fantastic; 2) the facts supporting individual liability
against the individual defendants; and 3) the facts supporting a theory for municipal
liability. Finally, the current complaint appears to have been generated using AI because it
is formatted like, and contains wording identical to, many other AI-generated complaints.
To ensure the court has an accurate set of facts, Barkley is prohibited from using AI in
drafting his response to this order. His response must be personally drafted and must be
based on his own personal knowledge.
IV. Preliminary Injunction
Barkley filed a motion for preliminary injunction and request for expedited
evidentiary hearing. (Doc. 6.) As set forth above, Barkley likely has not alleged non-
fanciful facts supporting any claim for relief against the named defendants. It appears
unlikely Barkley’s complaint alleges a plausible claim and the additional information
provided in support of his motion cannot cure the failure to state a claim. Failing to state a
claim means Barkley has not established a likelihood of success on the merits or that there
are serious questions going to the merits. Arc of California v. Douglas, 757 F.3d 975, 983
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(9th Cir. 2014). Finally, because Barkley “has failed to show the likelihood of success on
the merits,” there is no need to reach the remaining preliminary injunction factors. Garcia
v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (simplified).
IT IS ORDERED no later than October 19, 2026, plaintiff shall file a statement as
outlined above.
IT IS FURTHER ORDERED the Motion for Preliminary Injunction and
Expedited Evidentiary Hearing (Doc. 6) is DENIED.
IT IS FURTHER ORDERED as follows:
Governing Rules
Both counsel and pro se litigants must abide by the Rules of Practice of the U.S.
District Court for the District of Arizona (“Local Rules”) and the Federal Rules of Civil
Procedure.
Disclosure Statements
Full compliance with Federal Rule of Civil Procedure 7.1 is required by plaintiff(s)
and defendant(s). Rule 7.1(a)(1) requires any nongovernmental corporation to file a
disclosure statement identifying “any parent corporation and any publicly held corporation
owning 10% or more of its stock.” Rule 7.1(a)(2) requires a party in an action where
jurisdiction is based on diversity under 28 U.S.C. § 1332(a) to file a disclosure statement
identifying the citizenship of “every individual or entity whose citizenship is attributed to
that party.” A Corporate Disclosure Statement form is available at
https://www.azd.uscourts.gov/forms/disclosure-statement.
Service Deadline
Service of the summons and complaint on each defendant located in the United
States must occur within 90 days of filing the complaint. See Fed. R. Civ. P. 4(m). If service
cannot occur within 90 days, a request for an extension may be filed before expiration of
the 90-day period. Any such request must set forth the reason why service has not been
accomplished and request a specific short additional period of time. If the court believes
your reason constitutes “good cause,” it will authorize a brief additional period to
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accomplish service.
Proof of service must be filed with the Clerk of Court, in the form of an affidavit,
promptly after service has been made. See Fed. R. Civ. P. 4(l). It is important to comply
with this requirement because absent proof of service, the court will have no way of
knowing that the complaint has been served.
This order serves as an express warning that the court will dismiss this action,
without further notice to plaintiff(s), with respect to any defendant that is not timely served.
See Fed. R. Civ. P. 4(m).
Forms of Papers
The parties shall adhere to all of the requirements of Local Rule 7.1, including the
requirement that text and footnotes shall be no smaller than 13 point. Citations supporting
any textual proposition shall be included in the text, not in a footnote.
Notices of supplemental authority and responses to those notices are limited to 350
words excluding case captions and signature blocks.
Use of Generative Artificial Intelligence
As set forth above, plaintiff is prohibited from using generative artificial intelligence
(“generative AI”) in preparing his statement responding to this order. For all other filings,
if generative AI is used, the filer must attach to the subject filing a separate declaration
disclosing the use of generative AI and certifying that the filer, in the exercise of the filer’s
independent judgment, has personally reviewed and verified the content of the filing as
accurate and in compliance with Federal Rule of Civil Procedure 11. The declaration must
identify which, if any, portion of the filing incorporates Generative AI outputs. Any party
who presents to the court a pleading, written motion, or other paper incorporating
inaccurate or undeclared generative AI outputs, including but not limited to inaccurate or
non-existent case citations, may be subject to sanctions without further warning.
“Generative AI” as used in the previous paragraph refers to large language models
that accept user input and generate new content. Generative AI includes, but is not limited
to, the tools available through ChatGPT, Claude, Copilot, DeepSeek, Google Gemini, and
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Grok.
Paper Courtesy Copies
Do not send paper courtesy copies of Federal Rule of Civil Procedure 7(a)
pleadings, short procedural motions (e.g., motions for extension of time), 26(f) reports, or
stipulations. A paper courtesy copy of dispositive motions (or other lengthy motions that
will be opposed) and any responses or replies thereto shall be either postmarked and mailed
to the judge or hand-delivered to the judge’s mailbox in the courthouse by the next business
day after the electronic filing. Do not attempt to deliver documents to the judge’s chambers.
Courtesy copies should be double-sided and include the ECF-generated header at the top
of each page. Courtesy copies of documents too large for stapling must be submitted in
three-ring binders.
Amending Pleadings
Before filing a motion for leave to amend a pleading, the party that wishes to amend
must seek the consent of the other parties in an attempt to file the amended pleading
pursuant to Local Rule 15.1(b). If any party is unwilling to consent, the motion for leave
to amend must indicate which party (or parties) will oppose the request. If a motion for
leave to amend a pleading fails to so indicate, the motion will be denied without prejudice
for failure to adhere to this order.
A motion to amend a pleading must be accompanied by a copy of the proposed
amended pleading that indicates in what respect it differs from the pleading which it
amends. Local Rule 15.1(a). If a party files an amended pleading as a matter of course,
with the opposing party’s written consent, or as a result of the court granting leave to amend
in connection with a motion to dismiss, the amending party must file a separate notice that
includes a copy of the amending pleading that indicates in what respect it differs from the
pleading which it amends.
Motions and Stipulations
Every motion or stipulation, however mundane, must cite the rule(s) and/or law(s)
that permit the court to grant the requested relief. Requests for extensions of time must
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include a brief explanation of why the extension is needed to help the court determine
whether there is good cause. See Fed. R. Civ. P. 6(b)(1)(A).
To ensure timely case processing, a party moving for an extension of time,
enlargement of page limitations, or leave to file a document under seal shall indicate in the
motion whether the non-movant opposes the request and intends to file a written response.
If such a motion does not so indicate, it may be denied for failure to comply with this order.
Motions and stipulations should be accompanied by proposed orders. A proposed
order is not necessary for motions that will require a reasoned analysis from the court, or
for stipulations requesting issuance of the court’s standard protective order with no
amendments. These proposed orders must not be on letterhead or contain any information
identifying the party submitting the order, and they must set forth the relief requested rather
than incorporating the motion or stipulation by reference. See also Local Rule 7.1(b)(3).
Proposed orders must be emailed—in Microsoft Word format (not PDF)—to
Lanham_Chambers@azd.uscourts.gov. The subject line of the email must include the case
name, case number, the words “proposed order for [name of motion],” and an indication
of whether the motion is opposed or unopposed if this is not otherwise apparent from the
name of the motion.
Rule 12 Motions Are Discouraged
Any motion under Federal Rule of Civil Procedure 12 is discouraged if the
challenged defect in the pleading can be cured by filing an amended pleading. The court
therefore requires that: (1) before filing a Rule 12(b)(6) motion to dismiss or a Rule 12(c)
motion for judgment on the pleadings, the movant confer with the opposing party to
determine whether such motion can be avoided; and (2) the movant attach a certificate of
conferral, certifying that it notified the opposing party of the issues asserted in its motion
and that the parties conferred but were unable to agree that the pleading was curable in any
part by a permissible amendment offered by the pleading party. See also Local Rule
12.1(c). The requirement to meet and confer and attach a certificate of conferral applies in
equal force to motions to dismiss amended complaints, notwithstanding earlier conferrals
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and certificates filed before the complaint was amended. Any motion lacking the required
certification may be summarily stricken.
Multiple defendants represented by the same counsel may not file separate Rule 12
motions. Defendants represented by the same counsel who wish to file a Rule 12 motion
must file a single joint motion that includes all arguments applicable to any defendant.
Protective Orders
The court’s standard protective order is available is available at
www.azd.uscourts.gov under: Judges’ Information → Orders, Forms and Procedures →
Lanham, Krissa M. If the parties agree that discoverable materials should be kept
confidential, they may file a stipulation requesting that the court issue its standard
protective order. If the parties wish to propose additional provisions, they may request and
stipulate to the additional proposed language, subject to the court’s review. In that case, all
language added to the standard order by the parties should be redlined into a Word
document using “tracked changes,” and the parties’ Word document with the tracked
changes must be emailed to chambers. The parties are reminded that the mere fact the
parties have designated certain materials or information as confidential pursuant to an
agreement or stipulation does not mean the court will automatically order that filings
containing such information be placed under seal. See Ctr. for Auto Safety v. Chrysler Grp.,
LLC, 809 F.3d 1092, 1101 (9th Cir. 2016).
Motions to Seal
Local Rule 5.6 governs sealing of court records in unsealed civil actions. Every
motion to seal, including stipulations pursuant to Local Rule 5.6(d), must identify the legal
standard applicable to the document at issue and explain why the material sought to be
sealed meets that standard. The stringent “compelling reasons supported by specific factual
findings” standard articulated in Kamakana v. City & County of Honolulu, 447 F.3d 1172,
1178 (9th Cir. 2006), applies to motions and their attachments where the motion is “more
than tangentially related to the merits of a case.” Ctr. for Auto Safety, 809 F.3d at 1101.
Merely noting that a document was designated confidential by a party will not satisfy any
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applicable legal standard for sealing.
Where a party seeks to seal only certain portions of a given document, the
unredacted version of the document, which should be lodged under seal pursuant to Local
Rule 5.6(c), must include highlighting to indicate which portions of the document the party
seeks to redact.
Emergencies and Expedited Consideration
Any party desiring expedited consideration of a motion or other matter pending
before the court may make such a request by filing a separate Notice for Expedited
Consideration accompanied by a certificate from counsel for the moving party or, if
unrepresented, the moving party. The certificate must set forth the following: 1) the facts
establishing the need for expedited resolution; 2) the dates of the imminent events pertinent
to the request; 3) whether the motion or request for expedited consideration could have
been filed earlier; and 4) when or how the moving party will provide notice to all other
parties and the other parties’ positions on the motion. A request for expedited consideration
that is simply mentioned in the caption/title of the related filing will not be considered—a
separate notice and certificate must be filed.
Requests to Reschedule Court Dates
The court interprets Local Rule 7.3(b) as applying to requests to reschedule court
dates due to attorney conflicts. As such, and to enable the court to efficiently manage cases,
such requests must be made by motion or stipulation, must indicate the position of each
other party, and (unless another party plans to file a written opposition, which would be
appropriate only in rare circumstances) must propose to the court at least three dates/times
when all counsel are available for rescheduling purposes.
Noncompliance
The parties are specifically advised that failure to prosecute, to comply with court
orders, or to comply with the Local and Federal Rules may result in dismissal of all or part
of this case, default, imposition of sanctions, or summary disposition of matters pending
before the court. See also Local Rule 7.2(i) (“If a motion does not conform in all substantial
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respects with the requirements of [the Local Rules], or if the [opposing party] does not
serve and file the required answering memoranda, . . . such noncompliance may be deemed
a consent to the denial or granting of the motion and the court may dispose of the motion
summarily.”).
IT IS FURTHER ORDERED:
1. That plaintiff(s) must promptly serve a copy of this order on defendant(s) and
file a notice of service with the Clerk of Court;
2. That, unless the court orders otherwise, on December 16, 2026 the Clerk of
Court shall terminate without further notice any defendant in the United States that has
not been served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
Dated this 7th day of October, 2026.
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