Opinion
No. CV 18-00843 PHX SRB (CDB)
11-04-2020
Victor Flores, Plaintiff, v. Brandon Ekren, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN R. BOLTON:
Before the Court is Plaintiff's motion for leave to further amend and correct his Amended Complaint, citing Rules 15 and 19 of the Federal Rules of Civil Procedure. (ECF No. 112). Plaintiff seeks leave to add an "indispensable party, the City of Mesa in the interest of justice." (ECF No. 112 at 1). Because a magistrate judge cannot decide a matter dispositive of a claim or defense, the undersigned recommends as follows.
I. Background
Plaintiff presents the procedural background of this matter as follows:
On March 15, 2018, Plaintiff Flores filed his [] pro per original Civil Rights Complaint by Prisoner form. Due to his lack of knowledge of the actual names of the police officers that used excessive force on him during his arrest, he only named Defendant B. Ekren, an employee with the City of Mesa (herein "Mesa"), Police Department ("Mesa PD") (DOC 1-1).
On July 10, 2018, the DOJ, U.S. Marshals Service personally served Defendant Ekren at the Mesa PD with the original complaint (DOC 13). Defendant Pezzelle was not personally served.
August 20, 2018, Judge Fine issued an order confirming Defendant Ekren had been served but failed to file an answer to the original complaint and [was] subject to default. She ordered the U.S. District Court Clerk to "[] provide a copy of this order to the City of Mesa Attorney's Office, P.O. Box 1466, Mesa, AZ, 85211-1466." (DOC 14-1)
August 28, 2018, DOJ, Assistant A.G. Paul A. Bullis [(]"A.G. Bullis"), filed a Notice of Potential Representation that Defendant Ekren "was acting as member of a federal task force and potentially considered a federal employee entitled to representation by the Department. ...["] (DOC 15).
September 14, 2018, A.G. Bullis filed his Notice of Appearance for Ekren, presumptively representing Ekren was approved as a federal employee under 28 C.F.R. 50.15 (DOC 18).
September 19, 2018, Judge Fine also confirmed the representation made by the DOJ, A.G. Office that the Mesa Police Officer Defendant Ekren will [potentially] be deemed a Federal employee that made the arrest of Plaintiff in the capacity of a Federal Task Force (DOC 19-1). She then ordered the U.S. District Clerk of the Court to send by certified mail a copy of the Summons, Complaint and her Order to the Clerk of the U.S. A.G. Office for the District of Arizona and the Attorney General pursuant to Rule 4(i)(1) FRCP (DOC 19-1).
November 23, 2018, A.G. Bullis filed an Answer for Defendant Ekren again implying she received approval to represent him but admitted that Ekren is an employee with Mesa and its Police Department (Badge 15031) (DOC 24).
March 26, 2019, DOJ, A.G. Schoch ("A.G. Schoch") filed her Notice of Appearance for Defendant Ekren (DOC 39) also implying by her representation he is a Federal employee.
April 2, 2019, DOJ, A. G. Bullis, files his Notice of Attorney Withdrawal and indicates A.G. Schoch remains counsel for Ekren [].
April 12, 2019, Judge Camille D. Bibles issued an Order allowing the in pro per prisoner Plaintiff to file a prisoner's First Amended Complaint form (herein "First Complaint") adding Mesa Police Officer Michael Pezzelle to the action. The Judge Ordered that after the docketing of the First Amended Complaint the A.G. representing Defendant Ekren must notify the Court whether counsel will accept service of process for "the added Defendants" (DOC 49).
May 13, 2019, Plaintiff Flores filed his First Amended Complaint naming Defendants Ekren and Pezzelle as employees with the City of Mesa, PD (DOC 58, 59, 69).
June 14, 2019, DOJ, A.G. Schoch filed her "United States' Response Regarding Acceptance of Service on Behalf of Defendants ... and Pezzelle" of Plaintiff's First Amended Complaint (DOC 49). She concludes, she "has not been appointed to represent Defendant ... Pezzelle and cannot accept service on their behalf at this time." (DOC 74)
June 17, 2019, Judge Bibles, ordered Defendant Pezzelle to file an answer or response to the First Amended Complaint pursuant to the FRCP 12(a) deadline.
July 2, 2019, DOJ, Assistant A.G. Lisa Hemann (herein A.G. Hemann") filed her Notice of Substitution of Counsel for A.G. Schoch for Defendant Ekren (DOC 80).
July 25, 2019, Attorney Charles Slack-Mendez filed his Notice of Appearance for Plaintiff Flores (DOC 87).
October 3, 2019, A.G. Hemann filed an Answer to the First Amended Complaint (DOC 69) for Defendant Pezzelle. Then they filed a motion for summary judgment (DOC 105).
March 11, 2020, Defendants filed a Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment (DOC 109).(ECF No. 112 at 2-5) (emphasis in original).
July 2, 2020, Judge Susan R. Bolton denied Defendants['] MSJ. Specifically, the Judge rejected the Defendants Ekren and Pezzelle's position that they were federal employees as part of a federal USMS Task Force and are federal employees pursuant to 28 C.F.R. 50.15 (DOC 104, paragraphs 2-4, 34 USC 41503 ) and are immune from suit under 42 USC 1983 (DOC 110 at pages 9 - 11). Judge Bolton concluded that the only evidence Defendants presented in support of their assertion that they were federal actors of the Task Force "are their statements" (Id page 98, lines 27). [sic] Judge Bolton rejected Defendants['] statements based on their failure to supply any evidence supporting their representations of such and both Pezzelle/Ekren admitted they were acting in their capacity as City of Mesa Police Officers. Ekren was the "lead person" of the Task Force (Id at page 10, lines 1-14). That the DOJ/A.G. never "certified" Ekren or Pezzelle as Federal employees and it was not a Federal Task Force (Id). [sic]
Plaintiff did not name the City of Mesa or the Mesa Police Department as defendants in his original complaint, although he identified the defendants as Mesa police officers: the named defendants were "Officer B Ekren #15031 of Mesa Police Department," "And Others of Mesa Police Dept." (ECF No. 1 at 1).
The scheduling order, issued November 29, 2018, required any motion to add parties or amend the pleadings be filed no later than January 28, 2019; discovery be completed by April 29, 2019; and dispositive motions be filed by June 27, 2019. (ECF No. 25). The matter was reassigned on February 19, 2019. (ECF No. 32). The parties engaged in discovery, and Plaintiff was deposed on or about March 29, 2019. (ECF No. 42).
In the order granting leave to amend to identify Pezzelle and Lyles as the unknown defendants, the Court extended the deadline for submitting any further requests for discovery to July 9, 2019; required any newly added Defendants to depose Plaintiff no later than June 28, 2019; and extended the deadline for filing dispositive motions to September 25, 2019. (ECF No. 49). The Court did not extend the deadline for adding parties or further amending Plaintiff's claims.
Defendant Ekren and the unknown Defendants were identified in the original complaint as "of" the Mesa Police Department. (ECF No. 1 at 1). Defendants Ekren and Pezzelle were identified in the Amended Complaint as employees of the Mesa Police Department, and Defendant Lyles was identified as a United States Marshal. (ECF No. 69 at 1).
The day after Plaintiff's counsel filed his notice of appearance he stipulated to withdraw Plaintiff's then-pending motions to compel discovery, for the production of documents, and for subpoenas. (ECF No. 89).
On October 16, 2019, the Court granted the parties' joint motion to extend the deadlines for completing discovery, completing depositions, and for filing dispositive motions. (ECF No. 97 at 2). Plaintiff's counsel served requests for admissions and production on Defendants on November 15, 2019. (ECF No. 101). Defendants timely responded (ECF No. 102), and Plaintiff did not object to the responses nor seek to compel further discovery. Defendants Ekren and Lyles were deposed on November 14, 2019 (ECF No. 104-1 at 17; ECF No. 104-1 at 40), and Defendant Pezzelle was deposed on November 18, 2019 (ECF No. 104-1 at 52). On November 21, 2019, the Court granted a stipulation to dismiss Defendant Lyles, a Deputy United States Marshal, as a defendant. (ECF Nos. 99 & 100; ECF No. 104-1 at 42).
The Amended Complaint states a single cause of action for the use of excessive force against Plaintiff by Ekren, Pezzelle, and Lyles. (ECF No. 69 at 3-5). The proposed second amended complaint asserts a cause of action pursuant to 42 U.S.C. § 1983 for "Illegal Use of Excessive Force and Fabrication of Evidence" against "Defendants" "acting as individuals under color of the laws of the states of Arizona and/or California" (Count One). (ECF No. 112-1 at 13-14). Count Two of the proposed second amended complaint alleges a § 1983 claim for "Deliberate Indifference to Illegal Use of Excessive Force" against the City of Mesa. (ECF No. 112-1 at 14-15). Plaintiff alleges the City of Mesa "has a custom and policy of ignoring with a deliberate indifference its police officers, such as Defendants Ekren, Pezzelle [] use of excessive force and the violation of said federal and Constitutional rights during making arrest [sic] which resulted in the deprivation and violation of Plaintiff Flores's rights." (Id.). Count Three of the proposed second amended complaint is a claim of "violation of First Amendment (Right to Free Speech)," arising from Defendants Ekren and Pezelle's alleged breaking of Plaintiff's nose rendering it difficult to breath, combined with putting a "spit mask" on Plaintiff, punching him, and yelling at him to "'shut up!'" (ECF No. 112-1 at 15-16). Plaintiff asserts these actions interfered with his ability to yell for help and were in retaliation for the exercise of Plaintiff's "free speech rights [in violation of] his First, Eight [sic] and Fourteenth Amendment rights . . ." (ECF No. 112-1 at 16). Named as defendants in the proposed second amended complaint are Ekren, both individually and in his official capacity; Pezzelle, individually and in his official capacity; the City of Mesa; and Batista, individually and in his official capacity as the Chief of Police for the City of Mesa. (ECF No. 112-1 at 1).
Plaintiff asserts:
55. Defendants Ekren, Pezzelle watched each other intentionally violate and deprive Plaintiff Flores of his rights under 42 USC 1983 and the Fourth, Eighth. and Fourteenth Amendment of the United States Constitution and aided those violations by not stopping the excessive force each imposed on Plaintiff Flores as Police Officer which is a custom and policy of Defendant City of Mesa violating 34 USC 12601 .(ECF No. 112-1 at 14).
Plaintiff seeks leave to amend because:
As set forth herein (1) the Court determine[d] in the order on the motion for summary judgment that] both Defendants were, in fact, not "certified" federal employees covered under 28 C.F.R. 50.15; (2) were full-time employees and police officers with the City of Mesa only, which now implicates the City as an indispensable party requiring it be added to Plaintiff's Second Amended Complaint (attached) in the interest of justice pursuant to FRCP, Rules 15 and 19(ECF No. 112 at 2).
Rule 15.1(a) of the Local Rules of Civil Procedure provides:
A party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion, which must indicate in what respect it differs from the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to be added. The proposed amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits.
In the proposed second amended complaint, attached to the motion at ECF No. 112, all of Plaintiff's text is underlined, no text is stricken-through, and the caption of the pleading incorrectly indicates Judge Duncan, now retired, is the Magistrate Judge to whom the case is referred. (ECF No. 112-1). Accordingly, it would appear Plaintiff seeks to completely supplant the operative complaint, i.e., his Amended Complaint, with the proposed second amended complaint.
Defendants argue: "Plaintiff's Motion should be denied because he has failed to show good cause and because the proposed amendments would be futile. Further, justice does not require the Court to grant leave for the Second Amended Complaint in this case." (ECF No. 116 at 1). Defendants further contend:
. . . In support of his request [to amend], Plaintiff argues that, throughout the course of this action, he was misled by three separate Assistant U.S. Attorneys. However, Plaintiff's argument relies on a misunderstanding of the Court's summary judgment ruling and is wholly unsupported by any evidence or fact.(ECF No. 116 at 2) (emphasis added).
. . . Plaintiff construes the Court's summary judgment ruling as a conclusive finding that Defendants Brandon Ekren and Michael Pezzelle were not federal actors at the time of the conduct in question. To the contrary, the Court did not make a determination regarding Defendants Ekren and Pezzelle's status. Rather, the Court ruled that Defendants had not submitted sufficient evidence to establish that they were federal actors, as opposed to state actors, for the purpose of determining whether they were subject to liability under 42 U .S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Court's ruling does not conclusively establish that Defendants were not federal actors. Defendants maintain that they were federal actors during the alleged misconduct, and they will establish as much at trial. However, without this premise, Plaintiff's argument that Defendants' counsel "misled and induced" Plaintiff falls apart.
Defendants allege:
Counsel for Plaintiff entered his appearance on July 25, 2019. (Doc. 87.) Plaintiff's counsel inquired regarding Assistant U.S. Attorney Hemann's authority for representation. Based on their capacity as federally deputized Special U.S. Marshals, undersigned informed Plaintiff's counsel that she had authority to represent Defendants Ekren and Pezzelle. (Ex. 1 at Att. C.). Undersigned further stated that she did not represent the City of Mesa or the City of Mesa Police Department. (Ex. 1 at Att. C.) Further, in approximately September 2019, Plaintiff's counsel inquired as to whether
the Defendants would consent to amending the complaint a second time to add parties and/or claims. (Id., at Att. C, D.) Assistant U.S. Attorney Hemann communicated Defendants' position regarding Plaintiff's request to file a second amended complaint in this matter, explaining again that she only represented Defendants Ekren and Pezzelle, that federal officials are not subject to liability under 42 U.S.C.§ 1983, and that she believed there was an issue regarding the statute of limitations. (Id.) However, she asked him to inform her of his decision regarding the Second Amended Complaint, regardless. (Id.) The parties later stipulated to extend the discovery deadlines, which the Court granted on October 16, 2019. (Docs. 97, 98.) Later, during the deposition of Defendant Pezzelle, Plaintiff's counsel began questioning Defendant Pezzelle about his awareness of a City of Mesa investigation concerning a non-party in this action. Assistant U.S. Attorney Hemann, once again, informed Plaintiff's counsel that she did not represent the City of Mesa and that any such questions about the City of Mesa should be directed to the Mesa City Attorney. (Ex. B, Excerpt from transcript of Michael Pezzelle deposition.)(ECF No. 116 at 4-5).
After the close of discovery, Defendants filed a Motion for Summary Judgment on January 17, 2020 arguing that: (1) Plaintiff had failed to state a claim against them as federal actors; (2) even if he had, Defendants were entitled to qualified immunity; and (3) he had failed to present sufficient evidence in support of the essential elements of his claims, so he was not entitled to proceed to trial. (Docs. 103, 104.) The matter was fully briefed and, on July 2, 2020, the Court denied Defendants' motion reasoning, in part, that Defendants had failed to offer sufficient evidence to establish that they were federal actors. (Doc. 110.)
Plaintiff did not file a motion seeking leave to file the Proposed Second Amended Complaint until September 17, 2020. (Doc. 112.) He now seeks to add new parties, including the [sic] Ramon Batista, the City of Mesa, and an as-of-yet unidentified defendant. (Doc. 112-1, ¶¶ 7-9.) He further seeks to add new allegations concerning alleged false reports by Defendant Ekren, and a new claims against Defendants Ekren and Pezzelle for alleged fabrication of evidence and First Amendment violations. (Id., ¶¶ 19-47, 58-60; Doc. 112, pp. 5, 7.)
II. Analysis
Rule 15(a) of the Federal Rules of Civil Procedure provides that a plaintiff should be given leave to amend his complaint when justice so requires. Granting or denying leave to amend is a matter committed to the Court's discretion. Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). In exercising this discretion with regard to a motion to amend filed after a responsive pleading, the Court should consider, inter alia, the prejudice to the opposing party, whether granting the motion will result in undue delay, and whether the plaintiff has previously amended his complaint. Western Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991). Granting leave to amend causes substantial prejudice if it alters the litigation, creates additional discovery, or causes an extreme delay. See Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981) (affirming the district court's denial of a motion to amend when the amendment was "raised at the eleventh hour, after discovery was virtually complete and the Board's motion for summary judgment was pending before the court."). 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 (9th Cir. 2010). A motion to amend is futile if, accepting all of the facts alleged as true, the amended claim would be immediately "subject to dismissal" for failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998); Riverview Health Inst. LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
Discovery in this matter is completed, and Defendants' motion for summary judgment was denied; a settlement conference is set for December 1, 2020. Given that Plaintiff seeks to add at least two additional defendants and two claims for relief, the Court should exercise its discretion to deny the leave to amend because allowing amendment would prejudice the existing defendants. See Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990) (noting that "[p]rejudice to the opposing party is the most important factor" in determining whether to grant leave to amend); Ansari v. Plummer, 43 F.3d 1478, 1994 WL 692925 (9th Cir. 1994); Duggins v. Steak 'N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999) (upholding denial of leave to amend based on undue delay and undue prejudice to the defendant where the plaintiff sought amendment after the close of discovery).
Although Plaintiff asserts he was "misled" by Defendants and/or their counsel, the record indicates Plaintiff was not diligent in seeking the information or asserting the claims he now seeks to add to his pleading. Additionally, to the extent Plaintiff asserts he was "misled" into believing Defendants were acting as federal agents at the time of the incident giving rise to the complaint, it appears Defendants' representation by the United States Attorney's Office and the attachments to Defendants' sur-reply establish Defendants were deputized and acting as federal agents during the relevant events. (ECF No. 120-1 at 2-3). Plaintiff is incorrect with regard to his characterization of the Court's statements regarding this point in denying Defendants' motion for summary judgment. Furthermore, it appears Plaintiff's counsel was or should have been aware of any potential involvement or liability of the City of Mesa soon after he entered his appearance in this matter, before the close of discovery, and before the deadline for filing dispositive motions. Plaintiff does not allege that he was not afforded a means, through discovery or deposition, of obtaining the information Defendants purportedly failed to disclose regarding the exact nature of their employment or the potential involvement of the City of Mesa. Moreover, the order denying summary judgment in this matter issued July 2, 2020, and Plaintiff's motion to amend was not filed until September 17, 2020, displaying a lack of diligence with regard to the proposed amendment of Plaintiff's claims.
III. Conclusion
Allowing Plaintiff to add additional claims against an additional municipal defendant and an additional individual defendant at this time, which would prejudice the existing defendants, require reopening discovery, and delay resolution of this matter, which is now past the deadline for filing dispositive motions and may proceed to trial if not resolved at the settlement conference set for December 1, 2020, is not in the interests of justice. See Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).
Accordingly,
IT IS RECOMMENDED that Plaintiff's motion to amend (ECF No. 112) be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 4th day of November, 2020.
/s/_________
Camille D. Bibles
United States Magistrate Judge