United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE DIANE J. HUMETEWA, U.S. DISTRICT JUDGE.
the Court is Plaintiff's Motion to File Amended Complaint
(Doc. 26) and associated lodged proposed Second Amended
Complaint (“SAC”) (Doc. 26-1). Remaining
Defendant Joseph Faranda responded in opposition to the
Motion (Doc. 27), after which the other remaining Defendant,
Jim Carlo, filed a joinder to Faranda's response, and
asked that the joinder serve as his response to
Plaintiff's motion (Doc. 28). Accordingly, Faranda's
response is considered the position of both Defendants.
Plaintiff did not file a reply to Defendants' response.
matter is before the undersigned on referral from the
District Judge. The Court has a continuing obligation to
screen complaints brought by prisoners seeking relief against
an officer or employee of a governmental entity. See
28 U.S.C. § 1915A(a). The screening requirement extends
to proposed amended complaints. Because a magistrate judge
cannot decide a “matter dispositive of a claim or
defense or a prisoner petition challenging the conditions of
confinement, ” Rule 72(b)(1), Federal Rules of Civil
Procedure, the undersigned recommends as follows.
February 2, 2016, Plaintiff filed her original Complaint in
Maricopa County Superior Court, designating the action as one
of “wrongful death/excessive force” for the
February 6, 2014 shooting death of Plaintiff's husband,
Stephen Wayne Ross by “Glendale Police.” (Doc.
1-1 at 13, 16) Defendant Faranda, a Deputy United States
Marshal (“DUSM”), removed the case to this Court,
asserting that removal was proper because he was being sued
for actions taken while he was acting under the color of
federal law. (Doc. 1 at 2) The Court found that removal was
appropriate under 28 U.S.C. § 1442(a)(1). (Doc. 6 at 2)
The Court dismissed Plaintiff's Complaint for failure to
comply with Local Rule of Civil Procedure 3.4, and gave
Plaintiff leave to file an amended complaint. (Id.
at 3-5) On June 6, 2016, Plaintiff filed a First Amended
Complaint (FAC), asserting one count of “excessive
force by an officer” under the Eighth Amendment against
Glendale Police Department Detective Jim Carlo and DUSM
Faranda. (Doc. 7 at 3)
facts Plaintiff alleged in her FAC included the following. On
February 6, 2014, Defendant Carlo entered a grocery store
parking lot “with the intention of apprehending and
arresting Michael Ross, ” Stephen Ross's twin
brother. (Id. at 4, 6) Detective Carlo, who was
accompanied by approximately seven unmarked law enforcement
vehicles, planned to conduct a “vehicle
containment” of the “suspect's” vehicle
by placing his vehicle in front of Ross's car and also
positioning Detective Anderson's vehicle behind
Ross's car. (Id. at 4) Once they were in
position, Carlo gave the command to “execute, execute,
execute.” (Id. at 5) While Detectives Carlo
and Anderson were blocking Ross's vehicle with their
front bumpers, the suspect's vehicle “rammed”
Carlo's vehicle. (Id.) Detective Carlo alleges
he saw the suspect driver reach for a gun, and so Carlo drew
his gun and shot at the individual through the windshield.
(Id.) DUSM Faranda fired a shot into the front
passenger door of the vehicle. (Id. at 6) The
individual in the vehicle sustained 15 gunshot wounds.
(Id.) After the individual was transported to the
hospital and pronounced dead, he was identified as
Plaintiff's husband, Stephen Ross, not as his twin
brother Michael. (Id.)
screening pursuant to 28 U.S.C. § 1915A(a), this Court
determined that Plaintiff stated a Fourteenth Amendment due
process claim against Detective Carlo and DUSM Faranda, and
directed them to answer the claim. (Doc. 8 at 5) The Court
also found that the substantive due process right in the
companionship of a parent or child found in 42 U.S.C. §
1983 cases arguably applied to the loss of a spousal
relationship alleged in this case. (Id. at 5-6.)
Insofar as Plaintiff was attempting to allege a Fourth
Amendment claim of excessive force by police in the course of
an arrest, the Court dismissed that claim because Plaintiff
did not allege facts to support that she was entitled to
bring a survival action under Arizona state law.
(Id. at 3-5, 7) Defendants then moved to dismiss on
the bases of qualified immunity and failure to state a claim.
(Docs. 15, 17) The Court denied Defendant Faranda's
motion, in which Defendant Carlo had joined. (Doc. 24)
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
motion, Plaintiff seeks to add seven additional plaintiffs,
as follows: (1) Stephen Ross's parents, Gary Ross and
Marilyn Ross (alleging loss of parental relations); (2)
Stephen Ross's children, Stephanie Ross, Skylar Ross, and
Sebastian Ross (alleging loss of paternal relations); and (3)
Stephen Ross's brothers, Michael Ross and Jon Ross
(alleging loss of sibling relations). (Doc. 26-1 at 3)
Plaintiff alleges for herself the loss of spousal
relationship “as the executor and wife of Stephen
Ross.” (Id.) The motion also provides
“additional details of [the] incident that resulted in
the death of Stephen Ross.” (Doc. 26 at 1)
reasons provided below, the Magistrate Judge recommends that
Plaintiff's motion to add plaintiffs and to assert any
claim(s) on her own behalf as personal representative of Mr.
Ross's estate should be denied as futile.
STANDARD FOR DECIDING A MOTION TO AMEND
Rule of Civil Procedure 15 governs amendments to pleadings
generally. Except when an amendment is pleaded as a
“matter of course, ” as defined by the rule,
“a party may amend its pleading only with the opposing
party's written consent or the court's leave.”
Fed.R.Civ.P. 15(a)(2). Courts must “freely give leave
when justice so requires.” Id. Requests for
leave are generally granted with “extreme
liberality.” Moss v. U.S. Secret Serv., 572
F.3d 962, 972 (9th Cir. 2009) (citation omitted).
However, granting a plaintiff leave to amend “is
subject to the qualification that the amendment not cause
undue prejudice to the defendant, is not sought in bad faith,
and is not futile.” Bowles v. Reade, 198 F.3d
752, 757 (9th Cir. 1999) (citation omitted).
Prison Litigation Reform Act requires dismissal of
allegations that fail to state a claim upon which relief can
be granted prior to ordering service of an amended complaint
on the added defendants. 42 U.S.C. § 1997e(c)(1);
see, e.g., O'Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008). Futility of amendment is
sufficient to justify denial of a motion for leave to amend.
See Gordon v. City of Oakland, 627 F.3d 1092, 1094
(9thCir. 2010). A proposed amended complaint is
futile if it would be immediately “subject to
dismissal” pursuant to Fed.R.Civ.P. 12(b)(6), for
failure to state a claim on which relief may be granted,
accepting all of the facts alleged as true. See Steckman
v. Hart Brewing, Inc., 143 F.3d 1293, 1298
(9th Cir. 1998). In screening complaints, the
Court must liberally construe an incarcerated pro se
plaintiff's complaint. See, e.g., Estelle v.
Gamble, 429 U.S. 97, 106 (1976).
argue that Plaintiff's desire to add other plaintiffs is
futile because: (1) constitutional claims may not be asserted
vicariously; (2) the proposed claims of the additional
plaintiffs are untimely; and (3) such claims do not relate
back to the date of the original complaint. (Doc. 27 at 2-6)
Defendants further contend that Plaintiff's survival
claim asserted as Ross's widow and the purported executor
of his ...