Gellos

1 WO

2

3

4

5

6 IN THE UNITED STATES DISTRICT COURT

7 FOR THE DISTRICT OF ARIZONA

8

9 Susan Gellos, et al., No. CV-24-01529-PHX-GMS

10 Plaintiffs, ORDER

11 v.

12 City of Phoenix, et al.,

13 Defendants.

14

15 Pending before the Court is Defendants Officer Christopher Turiano, Officer

16 William Gates, and City of Phoenix’s (the “Phoenix Defendants”1) Motion to Dismiss the

17 First Amended Complaint. (Doc. 32). For the reasons below, the motion is granted.

18 BACKGROUND

19 On January 27, 2025, the Court granted in part and denied in part the Phoenix

20 Defendants’ first Motion to Dismiss (Doc. 18). (See Doc. 27, as amended by Doc. 28).2

21 In their initial complaint, Plaintiffs—Susan Gellos and her daughter Taryn Foster—

22 brought a claim for excessive force, in violation of the Fourteenth Amendment and 42

23 U.S.C. § 1983, against the Phoenix Defendants, claiming that Officer Turiano’s use of an

24 armlock to subdue Gellos—a concertgoer who was asked to leave the venue—coupled with

25 Officer Turiano’s use of “even more force” when Gellos attempted to position her body to

26

1 Officer Turiano and Officer Gates (the “Officers”) are both police officers with the

27 Phoenix Police Department.

2 The factual background and legal standards and conclusions set forth in that

28 Order—Gellos v. City of Phoenix, 2025 WL 307050 (D. Ariz. Jan. 27, 2025) (Doc. 28)—

are incorporated here by reference.

1 relieve her initial pain, was objectively unreasonable and worsened injuries that Gellos had

2 previously suffered to her right arm. (Doc. 1 at 8-10, 15). Plaintiffs also brought a § 1983

3 claim against Officer Gates for failure to intervene. (Id. at 16). Finally, Plaintiffs brought

4 a host of state law claims against the Phoenix Defendants, Richard Brunton (a private

5 security guard at the concert venue), a number of unknown “persons, agents, servants,

6 employees, corporations and/or business entities,” and the marital communities of the

7 individual defendants. (Id. at 7-8, 11-14).3

8 The Court dismissed Plaintiffs’ § 1983 claims without prejudice, holding that

9 Officers Turiano and Gates were entitled to qualified immunity. (Doc. 28 at 3-6). First,

10 regarding the claim of excessive force, the Court held that Plaintiffs failed to plead facts

11 demonstrating that Officer Turiano’s use of force towards Gellos violated a “clearly

12 established” constitutional right. (Id. at 4-5). Second, in dismissing the failure to intervene

13 claim against Officer Gates, the Court ruled that Plaintiffs failed to meet their burden of

14 identifying cases clearly establishing the law on when an officer has a “realistic opportunity

15 to intercede.” (Id. at 5-6).

16 The Court, exercising supplemental jurisdiction over the remaining state law claims,

17 allowed the claims of gross negligence and negligent infliction of emotional distress

18 against the City of Phoenix to proceed, noting that the Phoenix Defendants did not assert

19 lack of plausibility. (Id. at 6-8). Plaintiffs were granted leave to amend their complaint

20 within thirty days. (Id. at 7). Plaintiffs timely filed their amended complaint on February

21 26, 2025. (Doc. 29).

22 In their amended complaint, Plaintiffs reassert the following five claims:

23 • Count I: Gross negligence against the City of Phoenix;

24 3 Plaintiffs brought state law claims of (1) gross negligence against the Phoenix

Defendants; (2) negligence against Brunton and other unidentified security guards; (3)

25 intentional infliction of emotional distress against all defendants; (4) negligent infliction of

emotional distress against all defendants; and (5) assault and battery against all defendants.

26 (Doc. 1 at 11-14). Prior to oral argument on the Phoenix Defendant’s first motion to

dismiss, held on January 17, 2025, the parties agreed to dismiss (1) the gross negligence

27 and negligent infliction of emotional distress claims against the Officers without prejudice;

(2) the intentional infliction of emotional distress claim against the Phoenix Defendants

28 with prejudice; and (3) the assault and battery claim against the Phoenix Defendants

without prejudice. (Doc. 28 at 1).

1 • Count II: Negligence against Brunton and other unidentified security guards;

2 • Count III: Negligent infliction of emotional distress against the City of Phoenix;

3 • Count V:4 Excessive force in violation of the Fourteenth Amendment and 42

4 U.S.C. § 1983 against Officer Turiano; and

5 • Count VI: Duty and failure to intervene against Officer Gates.

(Id.). Plaintiffs include additional factual allegations regarding Officer Turiano’s use of

6

force, averring that he was aware that Gellos’s arm was injured before he apprehended her,

7

knew that any physical manipulation would cause Gellos excessive pain and suffering, and

8

yet still put her in an armlock. (Id. ¶¶ 40-44). And, when Gellos began screaming and

9

repositioned her body to relieve the pain in her arm, Officer Turiano, instead of backing

10

off, responded with more force, resulting in additional injury to Gellos. (Id. ¶¶ 45-50).

11

Finally, Plaintiffs newly allege that Officer Gates stood by and watched Officer Turiano

12

manipulate Gellos’s arm, and, despite Gellos’s screams of pains, failed to intervene to

13

prevent Officer Turiano’s actions—even though Officer Gates had “plenty of time to do

14

so” and “could have told Turiano that what he was doing was unnecessary, overbroad, and

15

was the cause and creation of excessive force.” (Id. ¶¶ 55-60).

16

The Phoenix Defendants moved to dismiss the counts brought against them for

17

failure to state a claim. (Doc. 32). They contend that qualified immunity still bars the

18

federal claims brought against the Officers (Counts V and VI), and that Plaintiffs failed to

19

sufficiently plead claims for gross negligence and negligent infliction of emotional distress

20

against the City of Phoenix as a matter of law (Counts I and III). (Id.).

21

LEGAL STANDARD

22

A. Failure to State a Claim

23

The Court must dismiss an action where a plaintiff “fail[s] to state a claim upon

24

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint must “contain

25

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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4 Plaintiffs mislabel their fourth claim as “Count V” and their fifth claim as “Count

28 VI.” (Doc. 29 at 10, 12). The Court will still refer to the § 1983 claim against Officer

Turiano as “Count V” and the § 1983 claim against Officer Gates as “Count VI.”

1 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

2 550 U.S. 544, 570 (2007)). While the Court must “construe the pleadings in the light most

3 favorable to the nonmoving party,” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005),

4 a complaint may still be dismissed as a matter of law “for one of two reasons: (1) lack of a

5 cognizable legal theory or (2) insufficient facts under a cognizable legal claim.” Robertson

6 v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); Iqbal, 556 U.S. at 678

7 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the

8 court to draw the reasonable inference that the defendant is liable for the misconduct

9 alleged.”). The Court need not accept the legal conclusions contained in a complaint as

10 true, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere

11 conclusory statements, do not suffice” as factual content. Iqbal, 556 U.S. at 678 (citing

12 Twombly, 550 U.S. at 555).

13 B. Qualified Immunity

14 Qualified immunity shields state actors “from liability for civil damages insofar as

15 their conduct does not violate clearly established statutory or constitutional rights of which

16 a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

17 “Because qualified immunity is an immunity from suit rather than a mere defense to

18 liability,” immunity disputes should be resolved “at the earliest possible stage in litigation.”

19 Pearson v. Callahan, 555 U.S. 223, 231-32 (2009) (citation modified).

20 Plaintiffs can clear the qualified immunity hurdle only if they demonstrate that (1)

21 the officer “violated a federal statutory or constitutional right” and (2) the unlawfulness of

22 the officer’s conduct was “clearly established at the time” of the violation. District of

23 Columbia v. Wesby, 583 U.S. 48, 62-63 (2018) (quoting Reichle v. Howards, 566 U.S. 658,

24 664 (2012)); Shooter v. Arizona, 4 F.4th 955, 961 (9th Cir. 2021) (plaintiff has burden of

25 proof to demonstrate that the right was clearly established). The Court, in its discretion,

26 can “address the clearly established prong of the qualified immunity test first.” Shooter, 4

27 F.4th at 961 (internal quotation marks and citations omitted); Callahan, 555 U.S. at 236.

28 A right is “clearly established” if, “at the time of the officer’s conduct, the law was

1 sufficiently clear that every reasonable official would understand that what he is doing is

2 unlawful.” Wesby, 583 U.S. at 63 (emphasis added) (internal quotation marks and citations

3 omitted). While “a case directly on point” is not required, “existing precedent must have

4 placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563

5 U.S. 731, 741 (2011). Indeed, a clearly established right must be “settled law.” Wesby,

6 583 U.S. at 63 (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)). “It is not enough

7 that the rule is suggested by then-existing precedent.” Id. (emphasis added). Instead, the

8 right must be dictated by either “controlling authority or a robust consensus of cases of

9 persuasive authority.” Id. (internal quotation marks and citations omitted).

10 The clearly established right must be defined with specificity. City of Escondido v.

11 Emmons, 586 U.S. 38, 42 (2019) (reversing denial of qualified immunity at summary

12 judgment where the lower court only defined the clearly established right “at a high level

13 of generality”). Specificity is “especially important in the Fourth Amendment context”—

14 the Supreme Court “has recognized that it is sometimes difficult for an officer to determine

15 how the relevant legal doctrine, here excessive force, will apply to the factual situation the

16 officer confronts.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation modified).

17 Thus, the inquiry for the Court at the pleading stage is to determine “whether the

18 complaint alleges sufficient facts, taken as true, to support the claim that the officials’

19 conduct violated clearly established constitutional rights of which a reasonable officer

20 would be aware ‘in light of the specific context of the case.’” Keates v. Koile, 883 F.3d

21 1228, 1235 (9th Cir. 2018) (quoting Mullenix, 577 U.S. at 12). If the complaint fails to

22 “contain[] even one allegation of a harmful act that would constitute a violation of a clearly

23 established right,” then the complaint must be dismissed. See id. (citation omitted).

24 DISCUSSION

25 I. Federal Claims (Counts V and VI)

26 Both of Gellos’s federal claims are barred by qualified immunity. Gellos still has

27 not identified cases demonstrating that Officer Turiano and Officer Gates violated any

28

1 clearly established constitutional rights. The Court will analyze each claim in turn.5

2 A. Officer Turiano is Still Entitled to Qualified Immunity on Count V.

3 Gellos again fails to meet her burden in alleging sufficient facts to support her claim

4 that Officer Turiano violated her clearly established constitutional rights.

5 The Court accepts the following factual allegations involving Officer Turiano as

6 true: Gellos, described as a “small senior citizen,” attended a concert on March 9, 2023, at

7 the Footprint Center with Foster, her daughter. (Doc. 29 ¶¶ 19, 62). Before Plaintiffs found

8 their seats, Gellos verbally quarreled with another patron, who then told Footprint security

9 that Gellos and Foster were fighting with the patrons. (Id. ¶¶ 20-22). Footprint security

10 subsequently approached Plaintiffs and indicated that security had reason to believe they

11 were intoxicated. (Id. ¶ 23). After receiving assurance from Plaintiffs, Footprint security

12 escorted them to their seats. (Id. ¶¶ 24-26).

13 Twenty minutes later while buying drinks, Gellos had a second interaction with the

14 same patron from earlier. (Id. ¶¶ 28-29). Fifteen minutes after the second interaction, a

15 Footprint employee asked Gellos to leave but stated that Foster could stay. (Id. ¶ 30).

16 Plaintiffs remained calm but protested. (Id. ¶¶ 31-32). Footprint security then “grabbed

17 Gellos by all four limbs and forcefully and indelicately carried her out of the seating areas

18 of the arena.” (Id. ¶¶ 33-34). Richard Brunton, a member of Footprint security, violently

19 swung Gellos and wrenched her arm, at which point Gellos began to feel extreme pain.

20 (Id. ¶¶ 35-36). Gellos believed that Brunton had broken her arm. (Id. ¶ 37).

21 Shortly thereafter, the Footprint security detail met with Officer Turiano and Officer

22 Gates. (Id. ¶ 39). Gellos was “dwarfed by the officers.” (Id. ¶ 63). Gellos was “very clear

23 with” Officer Turiano—who had heard her cries of pain—that her arm was injured and that

24 movement to her arm was excruciating. (Id. ¶¶ 40-43). Gellos was then pushed into an

25 elevator by Brunton, who had her arm locked behind her. (Id. ¶ 44). In the elevator, Officer

26 Turiano put Gellos’s right arm into an armlock, at which point Gellos began screaming.

27 5 Though the amended complaint alleges that “Plaintiffs’ rights to freedom from

unreasonable seizures” were violated (Doc. 29 ¶ 107 (emphasis added)), Plaintiffs concede

28 that “Foster is not asserting any federal claims in this action.” (Doc. 35 at 3). Thus, the

Court will analyze only whether Gellos has properly pleaded her federal claims.

1 (Id. ¶¶ 47-48). As Gellos attempted to position her body to relieve the pain, Officer

2 Turiano, “instead of backing off and allowing Gellos to position her body in a fashion to

3 reduce the excruciating pain,” responded with more force, worsening Gellos’s injuries. (Id.

4 ¶¶ 49-50). Gellos “never intended to resist,” and any physical contact with the Officers

5 was unintentional and due to her pain. (Id. ¶¶ 66-68). The totality of the force used against

6 Gellos caused her right humerus to “snap.” (Id. ¶¶ 64, 75, 114).

7 Considering these alleged facts, Officer Turiano is entitled to qualified immunity.

8 Gellos, in her briefing, fails to define her clearly established right with specificity. Gellos

9 avers that Officer Turiano violated her “right to be free from the application of non-trivial

10 force [by police] for engaging in mere passive resistance.” (Doc. 35 at 4 (quoting Gravelet-

11 Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013)). But Gellos defines her right at

12 too high a level of generality. See Emmons, 586 U.S. at 43. The Supreme Court, when

13 discussing the application of the exact case that Gellos cites, has instructed courts to

14 “explain how that case law prohibited [the officer’s] actions in this case” when evaluating

15 the clearly-established prong of the qualified immunity test. Id. And though the Supreme

16 Court has also explained that “a general constitutional rule already identified in the

17 decisional law may apply with obvious clarity to the specific conduct in question,” Taylor

18 v. Riojas, 592 U.S. 7, 9 (2020) (citations omitted), here, it is not obviously clear that

19 Gravelet-Blondin applies to Officer Turiano’s conduct.

20 In Gravelet-Blondin, the Ninth Circuit held that an officer who tased a plaintiff-

21 bystander was not entitled to qualified immunity. 728 F.3d at 1089-90, 1092-96. There,

22 the plaintiff, who responded to noise coming from the direction of his neighbor’s house,

23 was standing “some thirty-seven feet” away from a group of officers who had subdued

24 plaintiff’s neighbor onto the ground. Id. at 1090. Though plaintiff “made no threatening

25 gestures” towards the officers while taking “one or two steps back,” the defendant-officer

26 pointed a taser at him and yelled at him to “get back.” Id. The defendant-officer then

27 “began to warn [plaintiff] that he would be tased if he did not leave, but fired his taser

28 before he had finished giving that warning.” Id. Plaintiff was tased in “dart mode,” which

1 caused him “excruciating pain, paralysis, and loss of muscle control.” Id. The Ninth

2 Circuit, after finding that the officer’s use of force was unreasonable and excessive, held

3 that the “right to be free from the application of non-trivial force for engaging in passive

4 resistance was clearly established.” Id. at 1092-94.

5 But the facts and subsequent legal holdings in Gravelet-Blondin do not place the

6 specific constitutional question in this case “beyond debate.” See al-Kidd, 563 U.S. at 741.

7 First, there are substantial differences in methods of force employed by the officers.

8 Gravelet-Blondin involved the use of a taser in dart mode, whereas here, Gellos was placed

9 in an armlock by Officer Turiano. See Schmitz v. Garrison, 2025 WL 3280560, at *5 (D.

10 Or. Nov. 24, 2025) (holding that an officer’s use of force, which consisted of punching

11 plaintiff and bringing him to the ground to handcuff him, was “too factually distinct for the

12 relatively general rule in Gravelet-Blondin to apply”). The cases relied upon by the

13 Gravelet-Blondin court in defining the clearly established rule also involved different

14 methods of force that are too factually distinct from the situation here. See Nelson v. City

15 of Davis, 685 F.3d 867, 881 (9th Cir. 2012) (pepper spray pellets); Deorle v. Rutherford,

16 272 F.3d 1272, 1282 (9th Cir. 2001) (shooting a lead-filled beanbag round); Headwaters

17 Forest Def. v. County of Humboldt, 276 F.3d 1125, 1131 (9th Cir. 2002) (pepper spray).

18 Moreover, when determining whether the plaintiff’s constitutional right was clearly

19 established, the Gravelet-Blondin court conducted an inquiry into whether it was clear that

20 using a taser in dart mode was considered a non-trivial use of force at the time of plaintiff’s

21 injury. 728 F.3d at 1094-96. But here, in contrast, Gellos offers no line of cases suggesting

22 that using an armlock to subdue a patron being removed from a venue was clearly

23 established as a non-trivial use of force in 2023. In fact, the body of case law from the

24 Ninth Circuit might suggest otherwise. See Bernal v. Sacramento Cnty. Sheriff’s Dep’t, 73

25 F.4th 678, 684 n.2, 691 (9th Cir. 2023) (noting that “a twist-lock”—“a type of control hold

26 which uses pain to gain control”—“is one of the least intrusive control holds available”);

27 Tatum v. City & County of San Francisco, 441 F.3d 1090, 1096-97 (9th Cir. 2006) (use of

28 a control hold to secure plaintiff prior to arrest was objectively reasonable and observing

1 that the Ninth Circuit has “held more aggressive police conduct than [the officer’s]

2 objectively reasonable, even where the conduct resulted in serious physical injury”);

3 Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994) (holding that use of force

4 consisting only of physical pressure administered on plaintiffs’ limbs in increasing degrees,

5 resulting in pain, “was less significant than most claims of force”); Eberle v. City of

6 Anaheim, 901 F.2d 814, 815, 820 (9th Cir. 1990) (application of finger-hold to move

7 patron, reported as “being belligerent” by stadium staff, from stadium seating to a safe area

8 was reasonable); see also Donovan v. Phillips, 685 F. App’x 611, 612-13 (9th Cir. 2017)

9 (unpublished) (describing an officer’s application of a control hold—which included

10 gripping plaintiff’s wrist, pulling her arm downward, and causing her to roll onto the

11 ground—as a use of “minimal force”). Thus, it cannot be said that every reasonable officer

12 would have understood that placing Gellos in an armlock when removing her from the

13 Footprint Center was unlawful. See Wesby, 583 U.S. at 63.

14 Next, there are notable differences in the circumstances leading up to the use of

15 force. Here, in contrast with Gravelet-Blondin, Gellos was not a mere bystander who “was

16 perfectly passive, engaged in no resistance, and did nothing that could be deemed

17 particularly bellicose.” See 728 F.3d at 1092 (internal quotation marks omitted). Instead,

18 Gellos had been confronted twice by Footprint security due to reports about intoxication

19 and fighting (Doc. 29 ¶¶ 20-30), protested after being asked by Footprint security to leave

20 the arena (id. ¶¶ 31-32), and was forcibly removed from her seat by Footprint security—

21 and suffered initial injury—prior to Officer Turiano’s involvement (id. ¶¶ 33-36). Cf. Rice

22 v. Morehouse, 989 F.3d 1112, 1117, 1127 (9th Cir. 2021) (relying on Gravelet-Blondin and

23 other Ninth Circuit case law to hold that a plaintiff who was perfectly passive, engaged in

24 no resistance, and did nothing that could be deemed particularly bellicose—yet was still

25 removed from his vehicle, forcibly thrown down to the ground, and repeatedly struck,

26 kneed, and had his arms and shoulders wrenched and his fingers twisted—could establish

27 that the officers violated his clearly established right to be free from the application of non-

28 trivial force for engaging in mere passive resistance). Furthermore, even though Gellos

1 did not resist when she was placed in an armlock, Officer Turiano was not on clear notice

2 that his decision to employ more force in response to Gellos repositioning her body to

3 relieve her pain was unlawful. See Tatum, 441 F.3d at 1097 (9th Cir. 2006) (“Even

4 accepting [the] contention that [suspect] sought to escape [the officer’s] grasp to shift into

5 a less painful position, [suspect] still resisted arrest, which justified [the officer’s]

6 continued application of the control hold.”); Arpin v. Santa Clara Valley Transp. Agency,

7 261 F.3d 912, 922 (9th Cir. 2001) (granting qualified immunity where plaintiff “stiffened

8 her arm and attempted to pull it away” while she was being handcuffed, “which was

9 impermissible regardless of whether [the officer] had probable cause to arrest her”).

10 And finally, Gellos does not point to case law clearly establishing that Officer

11 Turiano’s decision to employ an armlock, despite his knowledge that Gellos was in pain

12 prior to his use of force, was unlawful. See, e.g., Schmitz, 2025 WL 3280560, at *5

13 (granting qualified immunity even where plaintiff informed officers that “he was not able

14 to put his hands behind his back because of a prior shoulder injury”); Malek v. Green, 2017

15 WL 4284117, at *18 (N.D. Cal. Sept. 27, 2017) (granting qualified immunity where

16 plaintiff did not cite any “[r]elevant authority” discussing “whether it is unreasonable for

17 an officer to continue handcuffing once the suspect has complained of pain from a pre-

18 existing injury”). And though Gellos alleges that Officer Turiano’s decision to employ an

19 armlock was “clearly unnecessary” (Doc. 29 ¶¶ 45, 53), such a legal conclusion does not

20 relieve Gellos of her burden to identify “settled law” demonstrating that Officer Turiano’s

21 conduct was unlawful. See Wesby, 583 U.S. at 63.

22 Accordingly, Gellos has failed to meet her “burden of pointing to prior case law that

23 articulates a constitutional rule specific enough to alert these officers in this case that their

24 particular conduct was unlawful.” Hughes v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir.

25 2022) (emphasis added). As such, the Court need not evaluate the first prong of the

26 qualified immunity analysis—whether Officer Turiano’s conduct constituted excessive

27 force. The Court will dismiss Count V with prejudice and deny Gellos leave to amend the

28 claim. Gellos has not demonstrated that she can plead any additional facts to overcome

1 Officer Turiano’s qualified immunity. Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003

2 (9th Cir. 2010) (“A district court may deny a plaintiff leave to amend if it determines that

3 allegation of other facts consistent with the challenged pleading could not possibly cure

4 the deficiency.” (citation modified)).

5 B. The Failure to Intervene Claim Against Officer Gates (Count VI) Fails

Because it is Predicated on Officer Turiano’s Conduct.

6

Gellos’s claim against Officer Gates for failure to intervene is also unsuccessful.

7

The Court accepts the following factual allegations involving Officer Gates as true:

8

Officer Gates, like Officer Turiano, heard Gellos’s cries of pain about her arm as she was

9

being forcefully escorted out of the arena by Footprint security. (Doc. 29 ¶¶ 40-42). And

10

while Officer Turiano placed Gellos in an armlock in the elevator, Officer Gates stood by

11

and allowed the use of force to continue, even though he had “plenty of time” to tell Officer

12

Turiano “that what he was doing was unnecessary, overbroad, and was the cause and

13

creation of excessive force.” (Id. ¶¶ 55-60).

14

But while Gellos correctly identifies that “police officers have a duty to intercede

15

when their fellow officers violate the constitutional rights of a suspect or other citizen”

16

(Doc. 35 at 7 (quoting Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000)), such a

17

duty is predicated on an underlying constitutional violation. See Tobias v. Arteaga, 996

18

F.3d 571, 583-84 (9th Cir. 2021); Green v. City & County of San Francisco, 751 F.3d 1039,

19

1051 (9th Cir. 2014); Jackson v. City of Bremerton, 268 F.3d 646, 653-54 (9th Cir. 2001);

20

see also Shepard v. Perez, 609 F. App’x 942, 942-43 (9th Cir. 2015) (unpublished) (“A

21

failure-to-intervene claim requires an underlying constitutional violation.”).

22

Here, the Court has held that Officer Turiano’s conduct did not violate Gellos’s

23

clearly established constitutional rights. Thus, there is no conduct that any failure to

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intervene claim against Officer Gates could be predicated on. Therefore, because the Court

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has dismissed the excessive force claim against Officer Turiano, Gellos does not have a

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viable claim for failure to intervene against Officer Gates. Count VI, like Count V, is

27

dismissed with prejudice. Telesaurus VPC, 623 F.3d at 1003.

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l II. State Law Claims (Counts I, II, and IID)

2 Because Plaintiffs have again failed to overcome dismissal of their federal claims

|| based on qualified immunity, the Court has now, with prejudice, “dismissed all claims over

which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).. The Court thus declines to

5 || exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims: Counts J,

6|| Il, and Ill. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the

7\| federal claims are dismissed before trial . . . the state claims should be dismissed as well.’’);

8 || Les Shockley Racing, Inc. v. Nat’l Hot Rod Ass’n, 884 F.2d 504, 509 (9th Cir. 1989).

9|| Plaintiffs, if they so choose, should refile these claims in state court.

10 CONCLUSION

11 Accordingly,

12 IT IS THEREFORE ORDERED that the Phoenix Defendants’ Motion to Dismiss

□□ (Doc. 32) is GRANTED.

14 IT IS FURTHER ORDERED that Count V and Count VI are DISMISSED with

15 || prejudice.

16 IT IS FURTHER ORDERED that Count I, Count I, and Count HI are

|| DISMISSED without prejudice.

18 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action.

19 Dated this 30th day of January, 2026.

22 Senior United States District Judge

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