Brogdon v. Phoenix Police Department et al

Filing 24

ORDER (Service Packet) the reference to the Magistrate Judge is withdrawn as to Defendants' Motion to Dismiss the First Amended Complaint 19 . Defendants' Motion to Dismiss 19 is denied. Count II (in part) of the First Amended Complaint is dismissed. The Clerk of Court must send Plaintiff a service packet for defendant City of Phoenix. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. Signed by Senior Judge Robert C Broomfield on 5/11/12. (TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 George Albert Brogdon, Plaintiff, 11 12 vs. 13 Phoenix Police Department, et al., 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-1675-PHX-RCB (MEA) ORDER 16 17 Plaintiff brought this is civil rights case against the City of Phoenix Police Department 18 and various officers alleging excessive force and other claims arising from his arrest on 19 March 18, 2011. (Doc. 1.) Defendants move to dismiss the First Amended Complaint on 20 the ground that Plaintiff did not receive permission from the Court to file a First Amended 21 Complaint. (Doc. 19, ref. Doc. 11.) The Court will deny the motion and direct service of the First Amended Complaint 22 23 on the City of Phoenix. 24 I. Background 25 Plaintiff filed his original complaint in August 2011. (Doc. 1.) On October 7, 2011, 26 the Court screened the Complaint pursuant to 28 U.S.C. § 1915A(a) and directed Mancha to 27 answer the claim that he used excessive force and Torres to answer the claim that he failed 28 to intercede and encouraged the excessive force. (Doc. 7.) The Court dismissed the 1 remaining claims and Defendants. (Id.) The Court gave Plaintiff 21 days from the date of 2 the order to return the service packets and granted Plaintiff’s request for two court-approved 3 forms for filing amended complaints. (Id.) 4 On November 28, 2011, Plaintiff filed an amended Complaint. (Doc. 11.) On 5 December 27, 2011, the Court gave Plaintiff until January 20, 2012, to return the service 6 packets for Mancha and Torres. (Doc. 13.) The service packets were returned on January 7 6, and on January 20, the Clerk of Court forwarded the summonses, notice, amended 8 complaint, and orders to the United States Marshal Service. (Doc. 14.) Mancha returned the 9 waiver of service on February 3 and Torres returned his waiver of service on February 7. 10 (Docs. 15, 17.) Defendants now move to dismiss the First Amended Complaint because Plaintiff did 11 12 not obtain permission from the Court or Defendants to file it. (Doc. 19.) 13 II. Motion to Dismiss 14 A. 15 The Federal Rules of Civil Procedure provide that a party 16 may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service a motion under Rule 12(b), (e), or (f), whichever is earlier. 17 Legal Standards 18 19 Fed. R Civ. P. 15(a)(1). In all other cases a party must either obtain written consent from the 20 opposing party or leave of court, which is to be freely granted. Fed. R Civ. P. 15(a)(2). 21 B. Parties’ Contentions 22 Defendants argue that the First Amended Complaint was lodged before Defendants 23 were served and that Plaintiff failed to serve Defendant the original complaint. (Doc. 19 at 24 3.) They contend that Plaintiff required either their consent or the Court’s permission before 25 he could amend the Complaint and so the First Amended Complaint should be dismissed. 26 (Id.) They point out that the First Amended Complaint has not been screened. (Id. at 2.) 27 Plaintiff opposes the motion, asserting that he believed that when the Court granted 28 his request for additional forms to file an amended complaint, he had been granted -2- 1 permission to amend. (Doc. 21 at 1.) He argues that Defendants are asserting a procedural 2 rule with which he was unfamiliar and that he had no way to obtain Defendants’ permission 3 to file an amended complaint because they had not been served and had no counsel. (Id. at 4 3.) Defendants reply that Plaintiff is required to familiarize himself with the rules of civil 5 procedure and specifically those rules regarding proper amendment of pleadings. (Doc. 23 6 at 2-3.) 7 C. 8 The Court will deny the motion to dismiss the First Amended Complaint but will 9 Analysis screen the First Amended Complaint pursuant to 28 U.S.C.§ 1915A(a). 10 Defendants essentially argue that Plaintiff could not amend his complaint before a 11 complaint was served on them. They cite to no case law so interpreting Federal Rule of Civil 12 Procedure 15(a). Rule 15(a) appears to apply to amendments after service of a complaint, 13 which would be the usual sequence of events. Here, no complaint had been served at the 14 time of service of the First Amended Complaint. The Court notes that the First Amended 15 Complaint was not, in fact, lodged by the Clerk of Court; it was filed. And it was the Court 16 that forwarded the First Amended Complaint to the United States Marshal Service for service 17 of process, not Plaintiff. 18 III. Screening the First Amended Complaint 19 A. Statutory Screening of Prisoner Complaints 20 The Court is required to screen complaints brought by prisoners seeking relief against 21 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 22 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 23 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 24 be granted, or that seek monetary relief from a defendant who is immune from such relief. 25 28 U.S.C. § 1915A(b)(1), (2). 26 A pleading must contain a “short and plain statement of the claim showing that the 27 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 28 demand detailed factual allegations, “it demands more than an unadorned, the-defendant-3- 1 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 2 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 3 statements, do not suffice.” Id. 4 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 5 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 6 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 7 that allows the court to draw the reasonable inference that the defendant is liable for the 8 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 9 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 10 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 11 allegations may be consistent with a constitutional claim, a court must assess whether there 12 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. But as the 13 United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue 14 to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A 15 “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal 16 pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per 17 curiam)). 18 B. 19 In Count I, Plaintiff asserts that on March 18, 2011, Defendant Mancha used force 20 against Plaintiff and his cousin, which injured Plaintiff by cutting his mouth and scratching 21 his cornea. (Doc. 11.) At the time, Plaintiff was unarmed and “did not make any threatening 22 gesture towards” Mancha and had his hands on his head when Mancha approached because 23 Plaintiff had seen Mancha assault Plaintiff’s cousin. In Count II, Plaintiff alleged that Torres 24 watched as Mancha used force against Plaintiff without intervening, and Torres verbally 25 encouraged Mancha and Torres verbally harassed and threatened Plaintiff for bleeding on 26 him and his car. In Count III, Plaintiff alleged that he was assaulted due to improper training 27 by the City of Phoenix. (Id.) 28 First Amended Complaint As the Court noted in its first screening Order, allegations of harassment do not state -4- 1 a constitutional violation; therefore, claims of verbal harassment by Torres will be dismissed. 2 (See Doc. 7 at 5.) The remaining allegations adequately state claims against Mancha, Torres, 3 and the City of Phoenix. The Court will direct these Defendants to respond to the First 4 Amended Complaint. 5 IV. Heck v. Humphrey 6 It appears from the record in this case that Plaintiff was prosecuted for and convicted 7 of several felonies, including aggravated assault and unlawful flight from law enforcement, 8 and that these convictions were related to the events and arrest on March 18, 2011. (Doc. 7 9 at 3.) As such, Plaintiff’s claims of excessive force may be barred by Heck v. Humphrey, 10 512 U.S. 477, 486-87 (1994). To recover damages for harm caused by actions whose 11 unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove 12 that the conviction or sentence has been reversed on direct appeal, expunged by executive 13 order, declared invalid by a state tribunal, or called into question by a federal court’s issuance 14 of a writ of habeas corpus. Heck, 512 U.S. at 486-87. If the plaintiff’s conviction or 15 sentence arises out of the same facts that underlie the alleged unlawful behavior for which 16 damages are sought, the § 1983 suit must be dismissed. Smithart v. Towery, 79 F.3d 951, 17 952 (9th Cir. 1996); see also Cunningham v. Gates, 312 F.3d 1148, 1155 (9th Cir. 2002). 18 The Court cannot determine on the face of the First Amended Complaint whether the 19 claims are barred by Heck. This determination must await a motion for summary judgment. 20 IT IS ORDERED: 21 22 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion to Dismiss the First Amended Complaint (Doc. 19.) 23 (2) Defendants’ Motion to Dismiss the First Amended Complaint (Doc. 19) is denied. 24 (3) Count II (in part) of the First Amended Complaint is dismissed. 25 (4) Defendants Mancha, Torres, and the City of Phoenix must answer the First 26 Amended Complaint. 27 (5) The Clerk of Court must send Plaintiff a service packet including the First 28 Amended Complaint (Doc. 11), this Order, and both summons and request for waiver forms -5- 1 for Defendant City of Phoenix. 2 (6) Plaintiff must complete and return the service packet to the Clerk of Court within 3 21 days of the date of filing of this Order. The United States Marshal will not provide service 4 of process if Plaintiff fails to comply with this Order. 5 (7) If Plaintiff does not either obtain a waiver of service of the summons or complete 6 service of the Summons and Complaint on a Defendant within 120 days of the filing of the 7 Complaint or within 60 days of the filing of this Order, whichever is later, the action may be 8 dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i). 9 10 (8) The United States Marshal must retain the Summons, a copy of the First Amended Complaint, and a copy of this Order for future use. 11 (9) The United States Marshal must notify Defendant City of Phoenix of the 12 commencement of this action and request waiver of service of the summons pursuant to Rule 13 4(j)(2) of the Federal Rules of Civil Procedure and Rule 4.1(c) of the Arizona Rules of Civil 14 Procedure. The notice to Defendants must include a copy of this Order. The Marshal must 15 immediately file signed waivers of service of the summons. If a waiver of service of 16 summons is returned as undeliverable or is not returned by a Defendant within 30 days 17 from the date the request for waiver was sent by the Marshal, the Marshal must: 18 (a) personally serve copies of the Summons, First Amended Complaint, and 19 this Order upon Defendant pursuant to Rule 4(j)(2) of the Federal Rules of Civil 20 Procedure; and 21 (b) within 10 days after personal service is effected, file the return of service 22 for Defendant, along with evidence of the attempt to secure a waiver of service of the 23 summons and of the costs subsequently incurred in effecting service upon Defendant. 24 The costs of service must be enumerated on the return of service form (USM-285) and 25 must include the costs incurred by the Marshal for photocopying additional copies of 26 the Summons, Complaint, or this Order and for preparing new process receipt and 27 return forms (USM-285), if required. Costs of service will be taxed against the 28 personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil -6- 1 Procedure, unless otherwise ordered by the Court. 2 (10) A Defendant who agrees to waive service of the Summons and First 3 Amended Complaint must return the signed waiver forms to the United States Marshal, 4 not the Plaintiff. 5 (11) Defendants must answer the First Amended Complaint or otherwise respond by 6 appropriate motion within the time provided by the applicable provisions of Rule 12(a) of 7 the Federal Rules of Civil Procedure. 8 (12) Any answer or response must state the specific Defendant by name on whose 9 behalf it is filed. The Court may strike any answer, response, or other motion or paper that 10 11 does not identify the specific Defendant by name on whose behalf it is filed. DATED this 11th day of May, 2012. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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