Warden v. Walkup

          ORDER

          Bernardo P. Velasco United States Magistrate Judge.

         Pending before the Court are: (1) Plaintiff's Motion to Amend Complaint (Doc. 78); (2) Defendants' Motion for Sanctions for Violation of Federal Rules of Civil Procedure, Rule 11 (Doc. 81); (3) Plaintiff's “Motion for Oral Argument on COT Motion for Sanctions” (Doc. 96); (4) Plaintiff's Motion for Ruling on Plaintiff's Motion to Amend Complaint (Doc. 100), and (5) Plaintiff's Second Motion for Ruling on Motion to Amend Complaint (Doc. 104). Each motion is addressed below.

         I. Factual & Procedural Background

         In 2013, Plaintiff, acting pro se, filed complaints in CV 13-283-TUC-DCB and CV 13-1067-TUC-DCB which, in pertinent part, alleged violations under 42 U.S.C. § 1983 relating to Plaintiff's alleged arrest and removal from a Mayor and Council meeting on September 13, 2011. Named Defendants include Tucson Police Officer Couch who, together with an unidentified officer, allegedly arrested Plaintiff on September 13, 2011 at the Mayor and Council meeting, and John Doe defendants. (CV 13-268-TUC-DCB (Doc. 1); CV 13-1067 (Doc. 1).) In CV 13-283, the District Court dismissed, inter alia, the claims arising from Plaintiff's removal from the Mayor and Council meeting for failure to state a claim under Rule 8 of the Federal Rules of Civil Procedure. The District Court also dismissed CV 13-1067 under the doctrine of claim preclusion. The Ninth Circuit Court of Appeals subsequently reversed the dismissal in CV 13-283, vacated the judgment in CV 13-1067, and remanded both actions for further proceedings.

         Upon remand, the actions were consolidated and Plaintiff filed a Second Amended Complaint. The Second Amended Complaint filed in the consolidated actions includes “UNIDENTIFIED OFFICER” in the caption, names as one of the Defendants an “unidentified” Tucson City Police Officer and alleges that “Defendants Couch and the ‘Unidentified Officer,' acting without probable cause to believe an offense had been committed, arrested Plaintiff, took Plaintiff into custody, and removed him from the Mayor and Council Chambers” on September 13, 2011. (CV 13-283-TUC-DCB (BPV) at Doc. 59, ¶¶ 13, 26, 27.) Plaintiff alleges that these actions violated his First Amendment right to free speech and resulted in false arrest. (Id. at ¶36(d), 37, 42-43). On November 9, 2017, the Court entered a scheduling order, permitting discovery to proceed and setting a deadline of January 31, 2018 for seeking leave to amend the complaint. (Doc. 70^[1].)

         II. Plaintiff's Motion to Amend Complaint (Doc. 78)

         Within the deadline for seeking leave to amend the complaint, Plaintiff seeks to file a Third Amended Complaint (TAC) to: (1) allege additional facts (Doc. 78-1 at ¶¶ 5, 18-23, 35); (2) clarify that Defendant Riojas is sued in his individual and official “capacity as a Tucson City Employee” (Id. at ¶10); (3) identify the “unidentified” officer who assisted Defendant Couch as Officer Shane Sholl (Id. at ¶¶ 13, 32-33, 41, 43(c)-(d), 43(j), 46(1)-47)^[2]; and (4) correct dates (Id. at ¶¶ 28, 30).

         Whether to allow amendment of the complaint is governed by Rule 15(a), which provides that “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). When determining whether to grant leave to amend under Rule 15, the court should consider whether: (1) there has been undue delay, bad faith, or dilatory motive on the part of the moving party; (2) there have been repeated failures to cure deficiencies by previous amendments; (3) there has been undue prejudice to the opposing party by virtue of the allowance of the amendment; and (4) amendment would be futile. Sharkey v. O'Neal, 778 F.3d 767, 774 (9th Cir. 2015) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Defendants assert that Plaintiff's attempt to amend the Second Amended Complaint to state a claim against Officer Sholl should be denied because it is futile as barred by the statute of limitations. (Doc. 82.)

         In Arizona, a two-year statute of limitations applies to civil rights claims brought under 42 U.S.C. § 1983. TwoRivers v. Lewis, 174 F.3d. 987, 991 (9th Cir. 1999). A § 1983 claim accrues when the plaintiff “knows or has reason to know of the injury which is the basis of the cause of action.” Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (internal quotation marks and citation omitted). Thus, the statute of limitations expired in September 2015.

         Rule 15(c) of the Federal Rules of Civil Procedure allows for relation back of amendments to the date of the original pleading in certain circumstances. Rule 15(c) is to be liberally applied. ASARCO, LLC v. Union Pac. R. Co., 765 F.3d 999, 1004 (9th Cir. 2004 (citation omitted). Whether an amended complaint relates back is committed to the Court's discretion. Louisiana-Pac. Corp. v. ASARCO, Inc., 5 F.3d 431, 434-35 (9th Cir. 1993). The purpose of Rule 15(c) “is to provide maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities.” ASARCO, LLC, 765 F.3d at 1005 (internal quotation marks and citation omitted).

         Under Rule 15(c)(1)

         An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set ...