Kelly v. Santa Cruz, County of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
George Alan Kelly,
Plaintiff,
v.
County of Santa Cruz, et al.,
Defendants.
No. CV-25-00040-TUC-RM
ORDER
Pending before the Court are Motions to Dismiss filed by Defendants Santa Cruz
County and George Silva (“County Defendants”) (Doc. 50), and by Defendants David
Hathaway, Jorge Ainza, Mario Barba, Joseph Bunting, Cristobal Castaneda, Alfonso
Flores, Lluvia Garcia, Rafael Lopez, John Marquez, and Omar Rodriguez (“Sheriff’s
Department Defendants”) (Doc. 51).1 For the following reasons, the Motions to Dismiss
will be granted.
I. Procedural History
Plaintiff George Alan Kelly initiated this action on January 30, 2025, raising claims
under 42 U.S.C. § 1983 arising from his arrest and prosecution for murder. (Doc. 1.)
Defendants moved to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). (Docs. 28, 30.) On January 5, 2026, this Court granted the Motions
to Dismiss and dismissed Plaintiff’s Complaint with leave to amend. (Doc. 44.) Plaintiff
thereafter filed a First Amended Complaint (“FAC”) (Doc. 45), and Defendants again
1 The Sheriff’s Department Defendants join in arguments raised in the County Defendants’
Motion. (Doc. 52.)
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moved to dismiss under Rule 12(b)(6) (Docs. 50, 51).
II. First Amended Complaint
Plaintiff alleges the following in his FAC.2
Plaintiff and his wife (“the Kellys”) own a ranch located approximately two miles
from the United States-Mexico border in Santa Cruz County, Arizona. (Doc. 45 at 6 ¶ 30.)
During the years prior to the incident giving rise to this lawsuit, the Kellys observed an
increasing number of armed individuals crossing their property while trafficking drugs
from Mexico to the United States, in addition to armed groups known as RIP crews who
would rob drug traffickers. (Id. at 7 ¶¶ 33-34.) On two occasions, armed trespassers shot
at Plaintiff; during the first incident, Plaintiff was unarmed and took cover, and during the
second he was armed and fired his AK-47 into the air to scare the trespassers away. (Id. at
7 ¶ 35-36.)
On January 30, 2023, the Kellys were on their property when they saw a group of
men with large backpacks and guns, and Plaintiff heard a gunshot. (Id. at 7-8 ¶¶ 37-38.)
Plaintiff took his rifle to the back patio of his property and fired approximately eight shots
into the air to scare the men off his property. (Id. at 8 ¶ 39.) Plaintiff then called 911 and
the Border Patrol, and officers responded and walked the property with Plaintiff and his
dogs. (Id. at 8 ¶ 40.) Several hours later, Plaintiff discovered the deceased body of Mr.
Buitimea. (Id. at 9 ¶¶ 43, 45.) Mr. Buitimea’s body was found in a location that Plaintiff
and the officers had searched earlier, and the body had not been there during the earlier
search. (Id. at 8-9 ¶¶ 40-41, 43.) Mr. Buitimea was dressed in camouflage, including
tactical boots, and he had a radio; an empty, unzipped fanny pack that had been forcibly
torn from his body; and a large, empty, unzipped backpack that had been pulled over his
head. (Id. at 9 ¶ 46.) The condition of the body indicated that Mr. Buitimea was involved
in drug or human trafficking and had been robbed by a RIP crew either before or after he
2 Plaintiff’s FAC repeats the allegations of the original Complaint and adds additional
allegations. (Compare Doc. 1, with Doc. 45.) The Court detailed the allegations of the
original Complaint in its January 5, 2026 Order. (Doc. 44.) Here, the Court briefly
summarizes the reiterated allegations and discusses the newly added allegations in more
depth.
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had been shot. (Id. at 9 ¶¶ 46-47.)
Upon finding Mr. Buitimea’s body, Plaintiff called 911 and the Border Patrol. (Id.
at 9 ¶ 48.) Deputies from the Cochise County Sheriff’s Department, as well as attorneys
Kimberly Hunley and George Silva from the County Attorney’s Office, arrived on scene
to investigate. (Id. at 9-10 ¶¶ 48-49.) The Kellys told the deputies what they had seen
earlier in the day and how they had reacted, including that Plaintiff had used his AK-47 to
fire shots into the air from his back patio. (Id. at 10 ¶¶ 50-51.) Even though Plaintiff was
forthright and helpful, and the evidence indicated Mr. Buitimea had been killed by a RIP
crew rather than by Plaintiff shooting from his porch, deputies arrested Plaintiff within
minutes of their arrival and booked him for first-degree murder, falsely stating on the
booking form that Plaintiff had admitted to firing shots at multiple subjects. (Id. at 9-11,
13 ¶¶ 47, 52-58, 68.)
Plaintiff was held in jail for 23 days before being released on a one-million-dollar
bond. (Id. at 16 ¶¶ 79-80.) He was placed in general population despite obvious dangers,
and detention officers denied him medication, a mattress, and a pillow. (Id. at 16 ¶ 79.)
Defendant John Marquez was in charge of the treatment Plaintiff received in jail. (Id.)
During a probable cause hearing held on February 24, 2023, the prosecution
presented obviously perjured testimony from eyewitness D.R.R. (Id. at 19-20 ¶¶ 84-86.)
Plaintiff’s criminal trial took place from March 22, 2024, to April 19, 2024, and it resulted
in a mistrial after the jury was unable to reach a verdict. (Id. at 20 ¶ 91.) Following the
mistrial, the prosecution moved to dismiss the case without prejudice, but the state court
dismissed the case with prejudice in the interest of justice. (Id. at 21 ¶ 92.)
Plaintiff contends that Santa Cruz County Sheriff David Hathaway decried ranchers
who claimed there was a border crisis; that Hathaway publicly labeled Plaintiff a racist,
extremist vigilante; and that Plaintiff’s arrest and prosecution were intended to make an
example of Plaintiff with other ranchers in the area who were complaining about the
increase in dangerous border activity. (Id. at 5, 13, 16 ¶¶ 23, 66, 81.)
Plaintiff raises four causes of action under 42 U.S.C. § 1983. (Id. at 22-24 ¶¶ 97-
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116.) First, Plaintiff alleges that all Defendants violated his Fourth and Fourteenth
Amendment rights to be free from false arrest, unlawful seizure, and unlawful prosecution.
(Id. at 22 ¶¶ 97-101.) Second, he alleges that all Defendants conspired to violate his rights
to be free from false arrest, unlawful seizure, and unlawful prosecution. (Id. at 22-23 ¶¶
102-107.) Third, he alleges a violation of his Fourteenth Amendment right to be free from
punishment as a pretrial detainee. (Id. at 23 ¶¶ 108-112.) Fourth, he alleges a municipal
liability claim against Santa Cruz County pursuant to Monell v. Department. of Social
Services, 436 U.S. 658 (1978). (Id. at 23-24 ¶¶ 113-116.) Plaintiff seeks $50 million in
damages for emotional, physical, reputational, and economic harm, as well as $100 million
in exemplary damages. (Id. at 24-25 ¶¶ 117-120.)
III. Defendant Kimberly Hunley
On April 21, 2025, Plaintiff filed proof of service as to Defendant Hunley, stating
that the summons was served on a Legal Support Supervisor at the Santa Cruz County
Complex in Nogales, Arizona. (Doc. 16.)3 However, there is no dispute that Hunley is no
longer an employee of Santa Cruz County. (See Doc. 30 at 1-2 n.2; Doc. 45 at 3 ¶ 14; Doc.
50 at 1-2 n.2.) The County Defendants aver that they provided notice to Plaintiff’s
counsel—via email on May 14, 2025—that the attempted service of process on Hunley
was ineffective because Hunley is no longer a Santa Cruz County employee and the Legal
Support Supervisor had no authority to accept service on her behalf. (Doc. 30 at 1-2 n.2;
Doc. 50 at 1-2 n.2.) The County Defendants also raised the issue of ineffective service of
process on Hunley both in their Motion to Dismiss Plaintiff’s original Complaint (Doc. 30
at 1-2 n.2) and in their Motion to Dismiss the FAC (Doc. 50 at 1-2 n.2). Plaintiff failed to
address the issue in response to either Motion. (See Docs. 35, 58.) To date, Hunley has
not appeared in this action.
Pursuant to Federal Rule of Civil Procedure 4(m), if a defendant is not served within
90 days after the complaint is filed, the Court “must dismiss the action without prejudice
3 The Court takes judicial notice that the address at which service was attempted, 2150 N.
Congress Dr., Nogales, AZ, is the address of the Santa Cruz County Complex. See Fed.
R. Evid. 201 (a court may judicially notice a fact not subject to reasonable dispute).
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against that defendant or order that service be made within a specified time.” The Court
“must extend the time for service for an appropriate period” if the plaintiff shows good
cause for the failure to effect service of process. Fed. R. Civ. P. 4(m).
Plaintiff named Hunley in his original Complaint, which he filed over 500 days ago.
Plaintiff has never sought an extension of the deadline for serving Hunley. Plaintiff’s FAC
concedes that Hunley is no longer employed by Santa Cruz County and that she has not
been properly served. Whereas the original Complaint alleged that Hunley “is” a county
attorney for Santa Cruz County (Doc. 1 at 4 ¶ 14), the FAC alleges that she “was” a county
attorney (Doc. 45 at 3 ¶ 14). Furthermore, the FAC alleges that all other Defendants have
been served, but states that Hunley “may be served with process at 2150 N. Congress Dr.,
Nogales AZ 85621.” (Doc. 45 at 3 ¶ 14.) The address cited is the same address at which
service on Hunley was previously attempted—the address for the Santa Cruz County
Complex—and because Hunley is no longer an employee of Santa Cruz County, there is
no reasonable likelihood that Plaintiff will be able to serve her at that address.
Because the deadline for serving Hunley expired over a year ago and Plaintiff has
never sought an extension of that deadline or established good cause for his failure to effect
service of process, and because there is no indication that Plaintiff is reasonably likely to
serve Hunley if the time for service were extended, the Court will dismiss Hunley without
prejudice for failure to serve.
IV. Motions to Dismiss
A. Legal Standard
Dismissal of a complaint, or any claim within it, for failure to state a claim under
Rule 12(b)(6) may be based on either the “lack of a cognizable legal theory or the absence
of sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotation marks
omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. While a complaint need not include “detailed factual
allegations,” it must contain more than labels, conclusions, “and a formulaic recitation of
the elements of a cause of action.” Twombly, 550 U.S. at 555.
In evaluating a Rule 12(b)(6) motion to dismiss, the court must take as true all well-
pleaded factual allegations of the complaint and construe them in the light most favorable
to the nonmovant. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However,
the court need not accept as true legal conclusions that are couched as factual allegations.
Iqbal, 556 U.S. at 678.
A court generally cannot consider evidence outside the pleadings in ruling on a Rule
12(b)(6) motion, but the Court may consider “certain materials—documents attached to
the complaint, documents incorporated by reference in the complaint, or matters of judicial
notice—without converting the motion to dismiss into a motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).
B. Discussion
The County Defendants argue: (1) Plaintiff’s malicious prosecution claim against
Silva must be dismissed because the FAC does not allege that Silva personally participated
in any alleged constitutional violations, because Silva is entitled to absolute prosecutorial
immunity, because Plaintiff cannot show the absence of probable cause, and because the
FAC does not adequately plead malice or a purpose to deprive Plaintiff of a federal
constitutional right; (2) the conspiracy claim fails under the intracorporate conspiracy
doctrine, for lack of an underlying constitutional violation, and because the FAC does not
allege that Plaintiff was part of a protected class; and (3) the Monell claim fails for lack of
an underlying constitutional violation and because the FAC does not plead more than
conclusory assertions of a custom or policy of Santa Cruz County that was the moving
force behind the alleged constitutional violations. (Doc. 50 at 9-18.) The Sheriff’s
Department Defendants argue (1) the existence of probable cause is fatal to Plaintiff’s
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claims for false arrest, false imprisonment, and malicious prosecution; (2) the Sheriff’s
Department Defendants are entitled to qualified immunity; (3) the FAC fails to allege how
all Sheriff’s Department Defendants were involved in Plaintiff’s arrest or pretrial
confinement; (4) Plaintiff’s allegation that Commander Marquez oversaw jail operations is
insufficient to impose constitutional liability onto Marquez; and (5) no factual allegations
support Plaintiff’s conspiracy claim. (Doc. 51 at 9-18.)
1. Probable Cause
The Court’s January 5, 2026 Order focused on the issue of probable cause, as the
existence of probable cause is an absolute defense to false arrest, false imprisonment, and
malicious prosecution claims. (Doc. 44 at 8.) The Court found that Plaintiff’s Complaint
failed to plausibly allege a lack of probable cause for Plaintiff’s arrest and prosecution, but
the Court declined to give preclusive effect to the probable cause findings made during
Plaintiff’s state-court criminal proceedings. (Id. at 8-13.) The Court recognized that some
of the elements of issue preclusion under Arizona law are satisfied, in that Plaintiff had a
full opportunity to litigate the existence of probable cause for his arrest and prosecution
during his criminal proceedings, and the issue was actually litigated during those
proceedings. (Id. at 10-11.) However, the Court questioned whether the criminal
proceedings resulted in a final judgment for purposes of the doctrine of issue preclusion,
and whether the probable cause findings were essential to that judgment. (Id. at 11.) The
Court granted Defendants leave to re-assert arguments concerning issue preclusion. (Id. at
12 n.3.)
Plaintiffs’ FAC adds new allegations in an effort to establish a lack of probable
cause for Plaintiff’s arrest and prosecution. (See generally Doc. 45.) However, in their
Motions to Dismiss, Defendants re-assert their arguments that Plaintiff cannot establish a
lack of probable cause because the probable cause findings made during his state-court
criminal proceedings are entitled to preclusive effect in this civil action. (Doc. 50 at 13-
15; Doc. 51 at 13-16.) Defendants argue that all elements of issue preclusion—including
the requirement that the prior probable cause findings be essential to a final judgment—are
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satisfied here. (Doc. 50 at 13-15; Doc. 51 at 13-16.) The County Defendants also argue
that a finding of probable cause at a preliminary hearing is only reviewable in a subsequent
civil proceeding when a plaintiff alleges that officers engaged in judicial deception. (Doc.
50 at 13.)
As the Court recognized in its January 5, 2026 Order, the doctrine of “[i]ssue
preclusion, also known as collateral estoppel, bars the relitigation of issues actually
adjudicated in previous litigation.” Janjua v. Neufeld, 933 F.3d 1061, 1065 (9th Cir. 2019)
(internal quotation marks omitted). State law governs whether issue preclusion applies “to
a state court judgment in a federal civil rights action.” Mills v. City of Covina, 921 F.3d
1161, 1169 (9th Cir. 2019). However, “Arizona courts apply the same issue preclusion test
as federal courts.” Quinn v. Cardenas, 535 P.3d 921, 928 (Ariz. App. 2023). Issue
preclusion applies when (1) an “issue or fact to be litigated was actually litigated in a
previous suit,” (2) “a final judgment was entered,” (3) “the party against whom the doctrine
is to be invoked had a full opportunity to litigate the matter and actually did litigate it,” and
(4) the “issue or fact was essential to the prior judgment.” Chaney Bldg. Co. v. City of
Tucson, 716 P.2d 28, 30 (Ariz. 1986).4
The Court finds that Plaintiff has waived any argument that his state criminal
proceedings did not result in a final judgment for purposes of issue preclusion, and that he
has further waived any argument that the probable cause findings made during the criminal
proceedings were not essential to the judgment. See Blake v. Canoo Inc., 807 F. Supp. 3d
1061, 1082 (C.D. Cal. Oct. 22, 2025) (a party’s failure to respond to an argument raised in
a motion to dismiss is tantamount to a concession on that issue). The Court put the parties
on notice of its concerns regarding these elements in its January 5, 2026 Order (Doc. 44 at
11), and Defendants raised arguments concerning these elements in their Motions to
Dismiss (Doc. 50 at 14-15; Doc. 51 at 14-16). Nevertheless, Plaintiff failed to address
these elements or raise any arguments concerning them in his Response to the Motions to
Dismiss, instead conceding that the probable cause findings made during his state-court
4 Common identity of the parties is not required when issue preclusion is used defensively
in a civil action. See Campbell v. SZL Props., Ltd., 62 P.3d 966, 968 (Ariz. App. 2003).
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criminal proceedings establish “prima facie evidence of probable cause.” (Doc. 58 at 14.)
Based on the arguments in the parties’ briefs, the Court finds that the issue of probable
cause was actually litigated in Plaintiff’s state-court criminal proceedings, that a final
judgment was entered in those proceedings, that Plaintiff had a full opportunity to litigate
the issue of probable cause and did litigate it, and that the issue of probable cause was
essential to the prior judgment. Cf. Ludwig v. Arizona, 790 F. App’x 849, 851-53 (9th Cir.
2019); Haupt v. Dillard, 17 F.3d 285, 288-290 (9th Cir. 1994).
Plaintiff argues that the state-court probable cause findings are not conclusive in this
action because fabricated testimony from purported eyewitness D.R.R. was presented
during his state-court preliminary hearing. (Doc. 58 at 14-15.) As this Court previously
noted, however, even if the probable cause finding made at Plaintiff’s preliminary hearing
is not entitled to preclusive effect due to the presentation of allegedly false testimony by
D.R.R., Plaintiff’s argument fails to address the additional probable cause findings made
during his state-court criminal proceedings. (Doc. 44 at 10-11.) As this Court previously
observed, the state trial court reviewed the preliminary hearing probable cause finding and
affirmed the finding even when disregarding D.R.R.’s testimony. (Doc. 50-1 at 220 (non-
electronically filed exhibit).)5 Furthermore, at a suppression hearing, the state trial court
found probable cause for Plaintiff’s arrest based solely on the information known to
officers at the time of the arrest, which did not include any statements by D.R.R. (Doc. 50-
1 at 221 (non-electronically filed exhibit).) Given these additional findings of probable
cause for Plaintiff’s arrest and prosecution—findings that are independent of D.R.R.’s
challenged testimony—Plaintiff cannot show that his “arrest and detention would not have
occurred” but for Defendants’ “deliberate falsehood or reckless disregard for the truth.”
Nieves Martinez v. United States, 997 F.3d 867, 879-80 (9th Cir. 2021) (probable cause
finding not reviewable in subsequent civil proceeding absent elements of judicial deception
claim) (internal quotation and alteration marks omitted).
5 The Court may consider these rulings in evaluating Defendants’ Rule 12(b)(6) Motions
because they are appropriate subjects of judicial notice. See Ritchie, 342 F.3d at 908;
United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007).
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Upon evaluation of the arguments raised in the parties’ briefs, the Court finds that
the probable cause findings made during Plaintiff’s state-court criminal proceedings are
entitled to preclusive effect. Accordingly, there was probable cause for Plaintiff’s arrest
and prosecution, and Plaintiff cannot prove his claims for false arrest, false imprisonment,
and malicious prosecution. See Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th
Cir. 2015) (the absence of probable cause is a necessary element of § 1983 false arrest and
malicious prosecution claims); Cota v. Penzone, No. CV-18-02535-PHX-RM, 2019 WL
415703, at *5 (D. Ariz. Feb. 1, 2019) (the existence of probable cause is fatal to false arrest
and false imprisonment claims). The Court will accordingly dismiss with prejudice
Plaintiff’s § 1983 claims for false arrest, false imprisonment, and malicious prosecution.
2. Personal Involvement in Alleged Constitutional Violations
There are additional deficiencies in the claims asserted in the FAC. To state a claim
under § 1983, a plaintiff must allege facts plausibly showing that each defendant personally
participated in an alleged constitutional violation. Jones v. Williams, 297 F.3d 930, 934
(9th Cir. 2002). Here, as Defendants argue (Doc. 50 at 9; Doc. 51 at 17-18), Plaintiff’s
FAC impermissibly lumps Defendants together without specifying how each individual
Defendant was personally involved in any alleged constitutional violations.
For example, the FAC names Bunting and Rafael Flores as Defendants but makes
no factual allegations concerning any actions taken by those individuals. (See generally
Doc. 45.) The FAC alleges that Defendants Rodriguez, Alfonso Flores, and Silva arrived
at the scene after Plaintiff’s discovery of the body of Mr. Buitimea, but there are no
allegations concerning any allegedly unconstitutional actions taken by those Defendants.
(See id. at 9-10 ¶¶ 48, 49.) The FAC contends that Silva became directly involved in the
investigation leading to the decision to arrest and charge Plaintiff (id. at 10 ¶ 49), but this
conclusory assertion, devoid of any supporting facts, is not entitled to a presumption of
truth. See Ashcroft, 556 U.S. at 678 (“naked assertions devoid of further factual
enhancement” are insufficient (internal quotation and alteration marks omitted)).
Furthermore, the mere fact that Silva arrived at the scene of the investigation, without more,
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is insufficient to establish that Silva engaged in “investigative functions normally
performed by a detective or police officer,” Buckley v. Fitzsimmons, 509 U.S. 259, 273
(1993), as opposed to engaging in conduct “intimately associated with the judicial phase
of the criminal process,” Imbler v. Pactman, 424 U.S. 409, 430 (1976). Accordingly, the
FAC also fails to establish that Silva’s conduct falls outside the bounds of absolute
prosecutorial immunity.
The FAC alleges only that Defendant Castaneda and other officers walked
Plaintiff’s property with Plaintiff and his dogs prior to the discovery of Mr. Buitimea’s
body. (Id. at 8 ¶ 40.) Plaintiff fails to explain how walking the property with him violated
his constitutional rights. The FAC alleges only that Defendant Barba interviewed Plaintiff
and his wife after the discovery of the body. (Id. at 11-12 ¶¶ 57, 61.) Although Plaintiff
alleges that officers lied to him during their interview of him (id. at 11-12 ¶ 61), he does
not raise any claims premised on an unconstitutional interrogation, and the FAC includes
no other facts relating to Defendant Barba’s involvement in the decisions to arrest, charge,
and prosecute Plaintiff.
Accordingly, Defendants Bunting, Rafael Flores, Alfonso Flores, Rodriguez, Silva,
Castaneda, and Barba, are entitled to dismissal not only because Plaintiff cannot establish
a lack of probable cause for his arrest and prosecution, but also because the FAC fails to
allege facts plausibly showing that these Defendants were personally involved in any
alleged constitutional deprivations.
3. Conspiracy
There appears to be some confusion as to whether the FAC asserts a conspiracy
claim under 42 U.S.C. § 1983 or § 1985. The FAC refers to § 1983 only (Doc. 45 at 22-
23 ¶¶ 102-107), but the Motion to Dismiss filed by the County Defendants (Doc. 50 at 16-
17) and Plaintiff’s Response thereto (Doc. 58 at 18-19) address whether a conspiracy claim
was adequately pled under § 1985.
“Conspiracy is not itself a constitutional tort under § 1983,” and allegations of a
conspiracy do “not enlarge the nature of the [§ 1983] claims asserted by the plaintiff, as
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there must always be an underlying constitutional violation.” Lacey v. Maricopa Cnty.,
693 F.3d 896, 935 (9th Cir. 2012). Because Plaintiff has failed to allege an underlying
constitutional violation for false arrest, false imprisonment, or malicious prosecution,
Plaintiff has also failed to allege a § 1983 conspiracy. See Hart v. Parks, 450 F.3d 1059,
1069, 1071-72 (9th Cir. 2006) (conspiracy claim fails absent an underlying constitutional
violation).
To the extent Plaintiff is attempting to raise a claim for conspiracy under 42 U.S.C.
§ 1985, “the absence of a section 1983 deprivation of rights precludes a section 1985
conspiracy claim predicated on the same allegations.” Caldeira v. Cnty. of Kauai, 866 F.2d
1175, 1182 (9th Cir. 1989). Furthermore, to state a claim for conspiracy under § 1985, a
plaintiff must allege that the defendants’ actions were motivated by a discriminatory
animus based on a suspect or quasi-suspect class. Griffin v. Breckenridge, 403 U.S. 88,
102 (1971); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). The FAC
alleges that Hathaway “decried ranchers who claimed that there was” a border crisis, and
that Defendants’ prosecution was “based upon malice to make an example of [Plaintiff]
with the other ranchers on the border who had complained about the influx of dangerous
immigrant activity.” (Doc. 45 at 5, 13 ¶¶ 23, 66.) But a group of ranchers complaining of
a border crisis does not constitute a protected class for purposes of § 1985. See Bray v.
Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993) (“a group of individuals who
share a desire to engage in conduct that the § 1985(3) defendant disfavors” does not
constitute a protected class for purposes of the statute). Finally, a conspiracy under § 1985
requires that “two or more persons . . . conspire,” 42 U.S.C. § 1985(3), and Santa Cruz
County and its employees are “‘considered to constitute a single legal entity that cannot
conspire with itself[.]’” Dains v. Maricopa Cnty., No. 2:07-cv-2606-HRH, 2009 WL
10673606, at *7 (D. Ariz. Jan. 12, 2009) (quoting Dickerson v. Alachua Cnty. Comm’n,
200 F.3d 761, 768 (11th Cir. 2000)).
Accordingly, Plaintiff’s conspiracy claim will be dismissed. Because the existence
of probable cause precludes Plaintiff from stating a viable conspiracy claim, and because
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Plaintiff has failed to cure the defects of this claim after amendment, the Court will dismiss
the conspiracy claim with prejudice.
4. Monell Liability
A governmental entity may be held liable under § 1983 only “when 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, inflicts the injury[.]” Monell, 436
U.S. at 694. Municipal policy includes “the decisions of a government’s lawmakers, the
acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011).
Plaintiff cannot establish Monell liability without establishing an underlying
constitutional injury. See City of Los Angeles v. Heller, 475 U.S 796, 799 (1986). As
discussed above, Plaintiff cannot establish an underlying constitutional injury because he
cannot establish a lack of probable cause for his arrest and prosecution. Accordingly,
Plaintiff’s Monell claim will be dismissed with prejudice.
5. Conditions of Pretrial Confinement
In its January 5, 2026 Order, the Court dismissed Plaintiff’s claim alleging
unconstitutional conditions of pretrial confinement claim because vicarious liability is
inapplicable to § 1983 suits, and Plaintiff’s Complaint alleged only that Defendant
Marquez was in charge of the treatment Plaintiff received while in pretrial confinement,
without attributing any allegedly unconstitutional actions to Marquez or to any other named
defendants. (Doc. 44 at 14.)
Plaintiff’s FAC makes no attempt to cure these defects, again alleging only actions
taken by unnamed detention officers who were supervised by Marquez. (Doc. 45 at 3, 16
¶¶ 13, 79.) Furthermore, Plaintiff does not respond to the County Sheriff Defendants’
argument that the FAC’s allegation that Marquez oversaw jail operations is insufficient to
impose constitutional liability. (Doc. 51 at 18; see Doc. 58.)
Because a § 1983 claim against Marquez cannot be premised on a theory of
vicarious liability, and because Plaintiff has not alleged that any named Defendant was
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personally involved in the treatment he received while in pretrial confinement, the Court
will dismiss Count 3 of Plaintiff’s FAC and Defendant Marquez. Because Plaintiff has had
an opportunity to cure the defects in this claim but has failed to do so, and because
Plaintiff’s Response does not indicate that Plaintiff is able do so, the Court will dismiss
Count 3 and Defendant Marquez with prejudice.
IT IS ORDERED that Defendants’ Motions to Dismiss (Docs. 50, 51) are granted.
Plaintiff’s First Amended Complaint (Doc. 45) and this action are dismissed. The
dismissal is without prejudice as to Defendant Hunley and with prejudice as to all other
Defendants. The Clerk of Court is directed to enter judgment in Defendants’ favor and
close this case.
Dated this 17th day of August, 2026.
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