United States District Court, D. Arizona
Bernardo P. Velasco United States Magistrate Judge.
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.
Factual & Procedural Background
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.
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.
Plaintiff's Motion to Amend Complaint (Doc. 78)
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); and (4) correct
dates (Id. at ¶¶ 28, 30).
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.)
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.
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).
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 ...