United States District Court, D. Arizona
Murray Snow Chief United States District Judge.
before the Court is the Defendants' Motion for Summary
Judgment (Doc. 87) and Plaintiffs' Motion for Leave to
Amend the Complaint (Doc. 97).
record, viewed in the light most favorable to the Plaintiffs,
shows the following: Plaintiffs' relative, decedent Derek
Adame, was sleeping in a Nissan Sentra around 1:00 A.M. on
November 26, 2016, when Defendant Joseph Gruver, a police
officer for the City of Surprise, drove past the vehicle.
Officer Gruver was responding to a suspicious vehicle call.
He parked his patrol car nearby and ran the license plate of
the vehicle and the plates came back as stolen. (Doc. 88-2 at
5). At this time, Officer Gruver did not know any other
additional information about the vehicle. Before exiting his
vehicle, Officer Gruver turned on the police vehicle's
bright “takedown” lights.
Gruver approached Adame's vehicle from the passenger
side. (Doc. 91 Ex. E at 0:30-0:50) As he came around the back
of the vehicle, Officer Gruver noticed that there was an
individual in the driver's seat, who was “leaning
over to the side.” (Doc. 88- 2 at 6). Officer Gruver
opened the passenger side door, drew his weapon and
immediately stated, “Surprise Police. Let me see your
hands.” (Doc. 91, Ex. E at 1:15-1:17). He instructed
Adame to keep his hands on the steering wheel and said,
“until I figure out what's going on, you're
going to stay right there.” (Id. at 1:39-1:48,
2:07-2:13). At the same time, another Surprise Police
Officer, Shaun McGonigle was approaching. (Id., Ex.
C At 0:00-0:35). Officer Gruver again told Adame to keep his
hands up and visible. (Id. at 3:10-3:15).
initially complied. He then started the car while maintaining
his left hand on the steering wheel. (Doc. 91 Ex. C at 0:37).
After Adame started the car, Officer Gruver entered the
vehicle. (Id. Ex. E at 3:26-3:28; id., Ex.
C. at 0:37-0:41). Officer McGonigle arrived by the car as it
began to pull away. (Id. Ex. C at 0:25-0:39). As the
car began to accelerate, Officer Gruver yelled “Keep
them up! Keep them up right now! Don't move!” and
then immediately fired two shots. (Id. Ex. E at
3:21-3:31). The passenger side door remained open as the
shots were fired. (Doc. Ex. C at 0:35-0:43). When he was
shot, Adame's left hand was on the steering wheel and his
right hand was in the area by the gearshift. (Id.,
Ex. E. 3:28-3:30). Adame's upper body fell on the center
console as the vehicle sped away, and Officer Gruver fell out
of the vehicle. (Id. at 3:31-3:38). Adame's
vehicle ultimately crashed into a truck parked in a
neighboring driveway. (Id. Ex. C at 1:31). After the
vehicle crashed, but before the police were able to inspect
the vehicle, Officer Gruver was asked if Adame had a gun.
Officer Gruver responded, “No. He took off with me in
the car.” (Id. at 7:35-7:43). At no time
during this encounter did either officer see a weapon in the
Adame and Clarisa Abarca (“Plaintiffs”) then
filed this action for relief. Defendants now move for summary
judgment on Plaintiffs' remaining claims.
Fourth Amendment Standing
Amendment rights are personal and may not be asserted
vicariously. Alderman v. U.S., 394 U.S. 165, 174
(1969). Fourth Amendment standing law applies to claims made
against public officials and entities. See Longoria v.
Pinal City, 2015 WL 13654010 at *2 (D. Ariz. 2015). For
Plaintiffs who bring 1983 actions, “the survivors of an
individual killed as a result of an officer's excessive
use of force may assert a Fourth Amendment claim on that
individual's behalf if the relevant state's law
authorizes a survival action.” Moreland v. Las
Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th
Cir. 1998). Arizona's state law authorizes a survival
action by a personal representative of the decedent's
estate. See Ariz. Rev. Stat. § 14-3110. If a
representative of the decedent's estate does not bring
the claim under the Fourth Amendment, that claim cannot
proceed. See Smith v. City of Fontana, 818 F.2d
1411, 1417 (9th Cir. 1987) (“The children were not
directly subjected to the excessive use of state force and
therefore cannot maintain personal causes of action under
section 1983 in reliance on this Fourth Amendment
theory.”), overruled on other grounds,
Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040
n.1 (9th Cir. 1999) (en banc). Plaintiffs, recognizing this
error in their complaint, now move to amend to add Maria
Adame as personal representative of Derek Adame's estate
under Federal Rule of Civil Procedure 17.
in this case purportedly agreed to dismiss all claims on
behalf of the estate with prejudice in a prior order.
(See Doc. 52). After briefing was completed on these
two pending motions, the Court requested the parties to
submit supplemental briefing on whether the Plaintiffs had
authority or standing to agree to the dismissal of the
estate's claims with prejudice. (Doc. 105). Nothing
provided by either party in that briefing suggested there was
a personal representative appointed at the time of the
stipulation, or that there was otherwise a basis on which the
estate's claims could be dismissed with prejudice.
Therefore, in this order, the Court is both reconsidering the
dismissal of the estate's claims with prejudice as well
Plaintiffs' motion to amend the complaint.
time the Court entered its order in granting the parties'
stipulation, the estate did not have an authorized personal
representative in the negotiations, and therefore, Plaintiffs
in this action did not have standing to bring or agree to
dismiss the claims of the estate. See Ariz. Rev.
Stat. § 14-3703(c) (explaining that the personal
representative of the estate has standing to sue and be
sued). Accordingly, the stipulation to dismiss the claims of
the estate with prejudice is void, because the estate itself
did not agree to dismiss its claims through an authorized
under Federal Rule of Civil Procedure 17 is available where
“counsel makes understandable error in naming the real
party in interest.” Jones v. Las Vegas Metropolitan
Police Department, 873 F.3d 1123, 1128 (9th Cir. 2017).
Under Rule 17, “[t]he Court may not dismiss an action
for failure to prosecute in the name of the real party in
interest until, after an objection, a reasonable time has
been allowed for the real party in interest to . .
.join.” Fed.R.Civ. P. 17(a)(3). “This [rule] is
consistent with [the] longstanding policy in favor of
deciding cases on the merits.” Jones, 873 F.3d
at 1128. Like the plaintiffs in Jones, Plaintiffs
here mistakenly named Ms. Adame and Ms. Abarca in their
personal capacity as the party for their excessive force
claim against the Defendants. “Rather than enter
judgment immediately after noting the deficiency, the
district court should . . . give plaintiffs a reasonable
opportunity to substitute the right party.” Maria Adame
is now the appointed personal representative of the estate of
the decedent and is therefore the real party in interest for
the Fourth Amendment claim. (Doc. 97, Ex. C). Contrary to
Defendant's suggestion, Plaintiffs are not seeking to add
an entirely new claim. Since the beginning of this case,
Plaintiffs maintained an excessive force claim against the
Defendants. (See Doc. 26 at 10) (asserting that
“[t]he actions of Defendant Gruver . . . violated and
deprived Adame of his clearly established and well-settled
civil rights to be free from the use of excessive and deadly
force. . . .”). It is on this claim that Plaintiffs now
seek to substitute the personal representative of
decedent's estate. Because the prior agreement of the
parties did not extinguish the estate's excessive force
claim, and because the estate is the only party who could
properly bring this claim, Plaintiffs will be allowed to
amend their complaint to substitute the personal
representative of the estate for the named plaintiffs on the
excessive force claim. Id. at 1129 (permitting
plaintiffs to substitute the personal representative
decedent's estate in an excessive force action for a
different plaintiff under Federal Rule of Civil Procedure
Defendants wish to conduct additional discovery relating to
the decedent's estate, they may file a motion with the