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Atencio v. Arpaio

United States District Court, Ninth Circuit

December 9, 2013

Ernest Joseph Atencio, et al., Plaintiffs,
Sheriff Joseph Arpaio, et al., Defendants.


PAUL G. ROSENBLATT, District Judge.

Before the Court is Plaintiffs' Motion to Amend First Amended Complaint, filed September 19, 2013. (Doc. 89.) Plaintiffs move to amend their First Amended Complaint to add municipal liability claims against the City of Phoenix for failure to train its officers in recognizing and responding to mental illness. Defendants filed a response in opposition. (Doc. 105.) For the reasons set forth below, the motion is denied.


On December 15, 2011, Phoenix Police Officer Sarah Roberts arrested Ernest Marty Atencio ("Atencio") following an incident in which he reportedly kicked an apartment door and approached a woman and began yelling at her. Atencio was transported to the Fourth Avenue Jail, where county health officers performed a medical screening. Due to Atencio's erratic behavior, they recommended that he be placed in a "safe cell."

Officer Patrick Hanlon then escorted Atencio to the Linescan Room. The first amended complaint alleges that Hanlon used excessive force by leading Atencio "with his hands and arms in a bent position." (Doc. 50, ¶ 54.) When asked to remove his shoes, Atencio tensed up and became physically noncompliant. Hanlon and Officer Nicholas French began to struggle him physically.[1] ( Id., ¶ 60.) Maricopa County detention officers joined the struggle and wrestled Atencio to the ground. During the altercation Sergeant Weirs deployed his taser. ( Id., ¶ 63.) The county detention officers subdued Atencio and placed him in a safe cell. They re-entered the room approximately ten minutes later, concerned that Atencio was not breathing. Efforts to revive him failed. He was transported to the hospital and pronounced dead.

On October 23, 2012, Plaintiffs filed a complaint in Maricopa County Superior Court alleging, among other claims, civil rights violations under 42 U.S.C. § 1983. The case was removed to this Court on November 6, 2012. Plaintiffs filed their first amended complaint on May 3, 2013. (Doc. 50.)


Plaintiffs seek to amend their complaint under Rule 15 of the Federal Rules of Civil Procedure to add federal and state municipal liability claims against the City of Phoenix for its "failure to train Officers Roberts, French, and Hanlon on the recognition of and appropriate response to mental illness and excited delirium." (Doc. 89 at 2.) According to Plaintiffs, they learned during discovery that the City provides training courses entitled "Dealing with the Mentally Ill" and "Excited Delirium." The proposed amended complaint adds two counts alleging that despite the existence of these courses the City failed to provide Officers Roberts, Hanlon, and French adequate training. (Doc. 109 at 5-6.)

1. Good cause under Rule 16(b)(4)

In opposing Plaintiffs' request, Defendants note that the deadline for filing motions to amend, as established in the Court's scheduling order, was May 3, 2013 (Doc. 32), four and a half months before Plaintiffs filed the pending motion. Defendants argue, therefore, that Plaintiff's request must be analyzed under the good cause standard provided by Rule 16(b)(4) rather than the liberal standard for amendment under Rule 15(a).

"Once the district court had filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 which established a timetable for amending pleadings that rule's standards controlled." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Under Rule 16(b)(4), "[a] schedule may be modified only for good cause shown and with the judge's consent." While a court may take into account any prejudice to the party opposing modification of the scheduling order, "the focus of the inquiry is upon the moving party's reasons for seeking modification.... If that party was not diligent, the inquiry should end." Id. at 609.

Plaintiffs contend that they were diligent because they learned the information upon which their new claims are based-i.e., the officers' participation in the training programs offered by the City-only when they deposed the officers. (Doc. 109 at 3; see Doc. 89 at 2, 5-6.) Plaintiffs deposed Officer Roberts on June 26, 2013; Officer French on August 6, 2013; and Officer Hanlon on September 9, 2013. The motion to amend was filed September 19, ten days after the Hanlon deposition. Based on this time-line, the Court finds that Plaintiffs were diligent in seeking to amend their complaint based on the information elicited in the depositions.

2. Futility of amendment

Defendants also argue that amendment should be denied under Rule 15, principally on the grounds that amendment would be futile. "A district court does not err in denying leave to amend where the amendment would be futile... or would be subject to dismissal." Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991); see also Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) ...

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