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Ross v. Glendale Police Department

United States District Court, D. Arizona

October 27, 2017

Shawna Ross, Plaintiff,
v.
Glendale Police Department, et al., Defendants.

          REPORT AND RECOMMENDATION

          HONORABLE DIANE J. HUMETEWA, U.S. DISTRICT JUDGE.

         Before 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.

         This 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.

         I. BACKGROUND

         On 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)

         Relevant 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.)

         Upon 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)

         II. MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

         In her 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)

         For the 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.

         III. STANDARD FOR DECIDING A MOTION TO AMEND

         Federal 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).

         The 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).

         IV. DISCUSSION

         Defendants 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 ...


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