Newton v. Phoenix, City of et al

Filing 27

ORDER that Judge Aspey's R&R 18 is rejected. Plaintiff's motion for leave to file an amended complaint 12 is granted. Plaintiff shall file an amended complaint by July 11, 2014. Signed by Judge David G Campbell on 6/13/2014. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hearman Lee Newton,
Plaintiff,

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ORDER

v.

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No. CV-13-01874-PHX-DGC

City of Phoenix, et al.,

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Defendants.

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Magistrate Judge Mark Aspey has filed a Report and Recommendation (“R&R”)

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(Doc. 18) regarding Plaintiff Hearman Lee Newton’s motion for leave to file an amended

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complaint (Doc. 12). Plaintiff has filed objections to the R&R (Doc. 22) and Defendant

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Michael Myers has responded (Doc. 24). For the reasons that follow, the Court declines

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to accept the R&R and will grant Plaintiff leave to amend.

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I.

Background.

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Plaintiff filed this case in September of 2013 pursuant to 42 U.S.C. § 1983,

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asserting claims under the Fourth and Fourteenth Amendments. Doc. 1. The Court

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granted Plaintiff’s request to proceed in forma pauperis, dismissed the claims under the

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Fourteenth Amendment, and required Defendant to answer Plaintiff’s Fourth Amendment

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excessive force claim. Doc. 5 at 5. Plaintiff filed a proposed amended complaint on

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March 6, 2014, alleging that Defendant used excessive force while arresting him in

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violation of his rights under the Eighth Amendment. Doc. 10, ¶¶ 16-17. Plaintiff’s

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proposed amended complaint alleges that Defendant shot him with a Taser without

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warning or provocation, again used the Taser while Plaintiff was lying unconscious on

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the ground, picked up Plaintiff and “slammed him to the ground,” “dragged him at least

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twenty feet by the handcuffs,” “slashed” Plaintiff with a “taser dart,” and refused to

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provide him with medical assistance. Id., ¶¶ 6-13. Plaintiff also filed a motion for leave

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to amend his complaint on March 17, 2014, requesting that he be allowed to amend his

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amended complaint “to advance his claims under both the Fourth Amendment and the

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Eighth Amendment.” Doc. 12 at 2. Judge Aspey entered an R&R on April 21, 2014, in

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which he recommends that the Court deny Plaintiff’s request for leave to amend on the

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ground that Plaintiff’s amended complaint would be futile. Doc. 18 at 4.

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II.

Legal Standard.

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A party may file specific, written objections to an R&R within ten days after being

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served with a copy the R&R. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C).

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The Court must undertake a de novo review of those portions of the R&R to which

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specific objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge. See 28 U.S.C. § 636(b)(1).

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Rule 15 of the Federal Rules of Civil Procedure declares that courts should “freely

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give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Although “this

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mandate is to be heeded,” the Court may deny a motion to amend if there is a showing

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of undue delay or bad faith on the part of the moving party, undue prejudice to the

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opposing party, or futility of the proposed amendment. Foman v. Davis, 371 U.S. 178,

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182 (1962).

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inferences in favor of granting the motion.” Griggs v. Pace Am. Group, Inc., 170

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F.3d 877, 880 (9th Cir. 1999).

Generally, however, “this determination should be performed with all

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A district court does not err in denying leave to amend where the amendment

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would be futile or subject to dismissal. Saul v. United States, 928 F.2d 829, 843 (9th

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Cir. 1991) (citations omitted); see Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th

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Cir. 1988). A proposed amendment is futile only if no set of facts can be proved under

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the amendment that would constitute a valid and sufficient claim or defense. Miller, 845

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F.2d at 214; see Foman, 371 U.S. at 182 (stating that “[i]f the underlying facts or

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circumstances relied upon by a [movant] may be a proper subject of relief, he ought to be

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afforded an opportunity to test his claim on the merits”); DCD Programs, Ltd. v.

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Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (stating that “a motion to make an

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‘[a]mendment is to be liberally granted where from the underlying facts or circumstances,

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the plaintiff may be able to state a claim’”) (quoting McCartin v. Norton, 674 F.2d 1317,

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1321 (9th Cir. 1982)).

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III.

Analysis.

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Judge Aspey concluded that Plaintiff’s requested amendment would be futile

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under Heck v. Humphrey, 512 U.S. 477 (1994). Doc. 18 at 4. In Heck, the Supreme

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Court considered whether § 1983 permits a damages claim that calls into question the

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lawfulness of the plaintiff’s conviction or confinement. 512 U.S. at 483. The Supreme

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Court held that a § 1983 plaintiff must prove that his conviction or sentence has been

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reversed, expunged, declared invalid, or called into question by the issuance of a writ of

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habeas corpus “in order to recover damages for allegedly unconstitutional conviction or

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imprisonment, or for other harm caused by actions whose unlawfulness would render a

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conviction or sentence invalid[.]” Id. at 486-87. Judge Aspey found that “Heck bars

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Plaintiff’s excessive force claim because Plaintiff was convicted of aggravated assault on

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Defendant.” Doc. 18 at 4. Judge Aspey appears to have concluded that a ruling in favor

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of Plaintiff’s § 1983 claim would necessarily suggest that his conviction was invalid.

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Plaintiff cites Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005), for the

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proposition that he is not precluded from relief. Doc. 22 at 3. In Smith, the Ninth Circuit

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held that “a § 1983 action is not barred under Heck unless it is clear from the record that

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its successful prosecution would necessarily imply or demonstrate that the plaintiff’s

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earlier conviction was invalid.” Smith, 394 F.3d at 699 (emphasis original). The Smith

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court concluded that there was nothing in the record to inform it as to the factual basis of

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the plaintiff’s plea agreement. Id. at 698. As a result, the court noted, it was unable to

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determine whether the plea agreement was based on conduct that occurred before the

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plaintiff was arrested, while the plaintiff was being arrested, or both. Id. The court found

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that Heck would not bar an excessive force claim based on conduct that occurred before

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or after the conduct for which a plaintiff pleaded guilty, and concluded that the plaintiff’s

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§ 1983 claim was therefore not barred by Heck. Id. Defendant argues that Smith is

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distinguishable because “Plaintiff alleges only a single continuous series of events in each

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version of his complaint” and “is not actually arguing that his assault and the excessive

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force are temporally distinct.” Doc. 24 at 4.

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The Court does not agree. It is not clear from the record that Plaintiff’s successful

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prosecution of this action would suggest the invalidity of his conviction. Plaintiff did

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plead guilty to aggravated assault on Defendant (Doc. 8-2 at 2), but, like Smith, the

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record does not reveal the factual basis for Plaintiff’s guilty plea. Plaintiff’s proposed

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amended complaint alleges that he was shot with a Taser while lying on the ground in

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handcuffs, slammed to the ground twice while unconscious, and dragged twenty feet by

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the handcuffs while unconscious, and that Defendant cut him with a “taser dart.” See

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Doc. 10. Accepting these allegations as true for purposes of this motion, it appears

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highly unlikely that Plaintiff’s aggravated assault conviction was based on conduct that

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occurred while he was lying on the ground in handcuffs, being slammed to the ground

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while unconscious, or being dragged twenty feet while unconscious. Thus, it is possible

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that Plaintiff could prove a § 1983 violation that is temporally distinct from the events

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that led to his assault conviction. The Court cannot determine, on this record, that

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Plaintiff’s proposed amendment would be futile under Heck.

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IT IS ORDERED that Judge Aspey’s R&R (Doc. 18) is rejected. Plaintiff’s

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motion for leave to file an amended complaint (Doc. 12) is granted. Plaintiff shall file

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an amended complaint by July 11, 2014.

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Dated this 13th day of June, 2014.

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