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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Hearman Lee Newton, Plaintiff, 9 10 ORDER v. 11 No. CV-13-01874-PHX-DGC City of Phoenix, et al., 12 Defendants. 13 Magistrate Judge Mark Aspey has filed a Report and Recommendation (“R&R”) 14 (Doc. 18) regarding Plaintiff Hearman Lee Newton’s motion for leave to file an amended 15 complaint (Doc. 12). Plaintiff has filed objections to the R&R (Doc. 22) and Defendant 16 Michael Myers has responded (Doc. 24). For the reasons that follow, the Court declines 17 to accept the R&R and will grant Plaintiff leave to amend. 18 I. Background. 19 Plaintiff filed this case in September of 2013 pursuant to 42 U.S.C. § 1983, 20 asserting claims under the Fourth and Fourteenth Amendments. Doc. 1. The Court 21 granted Plaintiff’s request to proceed in forma pauperis, dismissed the claims under the 22 Fourteenth Amendment, and required Defendant to answer Plaintiff’s Fourth Amendment 23 excessive force claim. Doc. 5 at 5. Plaintiff filed a proposed amended complaint on 24 March 6, 2014, alleging that Defendant used excessive force while arresting him in 25 violation of his rights under the Eighth Amendment. Doc. 10, ¶¶ 16-17. Plaintiff’s 26 proposed amended complaint alleges that Defendant shot him with a Taser without 27 warning or provocation, again used the Taser while Plaintiff was lying unconscious on 28 the ground, picked up Plaintiff and “slammed him to the ground,” “dragged him at least 1 twenty feet by the handcuffs,” “slashed” Plaintiff with a “taser dart,” and refused to 2 provide him with medical assistance. Id., ¶¶ 6-13. Plaintiff also filed a motion for leave 3 to amend his complaint on March 17, 2014, requesting that he be allowed to amend his 4 amended complaint “to advance his claims under both the Fourth Amendment and the 5 Eighth Amendment.” Doc. 12 at 2. Judge Aspey entered an R&R on April 21, 2014, in 6 which he recommends that the Court deny Plaintiff’s request for leave to amend on the 7 ground that Plaintiff’s amended complaint would be futile. Doc. 18 at 4. 8 II. Legal Standard. 9 A party may file specific, written objections to an R&R within ten days after being 10 served with a copy the R&R. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). 11 The Court must undertake a de novo review of those portions of the R&R to which 12 specific objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United 13 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, 14 reject, or modify, in whole or in part, the findings or recommendations made by the 15 magistrate judge. See 28 U.S.C. § 636(b)(1). 16 Rule 15 of the Federal Rules of Civil Procedure declares that courts should “freely 17 give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Although “this 18 mandate is to be heeded,” the Court may deny a motion to amend if there is a showing 19 of undue delay or bad faith on the part of the moving party, undue prejudice to the 20 opposing party, or futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 21 182 (1962). 22 inferences in favor of granting the motion.” Griggs v. Pace Am. Group, Inc., 170 23 F.3d 877, 880 (9th Cir. 1999). Generally, however, “this determination should be performed with all 24 A district court does not err in denying leave to amend where the amendment 25 would be futile or subject to dismissal. Saul v. United States, 928 F.2d 829, 843 (9th 26 Cir. 1991) (citations omitted); see Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th 27 Cir. 1988). A proposed amendment is futile only if no set of facts can be proved under 28 the amendment that would constitute a valid and sufficient claim or defense. Miller, 845 -2- 1 F.2d at 214; see Foman, 371 U.S. at 182 (stating that “[i]f the underlying facts or 2 circumstances relied upon by a [movant] may be a proper subject of relief, he ought to be 3 afforded an opportunity to test his claim on the merits”); DCD Programs, Ltd. v. 4 Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (stating that “a motion to make an 5 ‘[a]mendment is to be liberally granted where from the underlying facts or circumstances, 6 the plaintiff may be able to state a claim’”) (quoting McCartin v. Norton, 674 F.2d 1317, 7 1321 (9th Cir. 1982)). 8 III. Analysis. 9 Judge Aspey concluded that Plaintiff’s requested amendment would be futile 10 under Heck v. Humphrey, 512 U.S. 477 (1994). Doc. 18 at 4. In Heck, the Supreme 11 Court considered whether § 1983 permits a damages claim that calls into question the 12 lawfulness of the plaintiff’s conviction or confinement. 512 U.S. at 483. The Supreme 13 Court held that a § 1983 plaintiff must prove that his conviction or sentence has been 14 reversed, expunged, declared invalid, or called into question by the issuance of a writ of 15 habeas corpus “in order to recover damages for allegedly unconstitutional conviction or 16 imprisonment, or for other harm caused by actions whose unlawfulness would render a 17 conviction or sentence invalid[.]” Id. at 486-87. Judge Aspey found that “Heck bars 18 Plaintiff’s excessive force claim because Plaintiff was convicted of aggravated assault on 19 Defendant.” Doc. 18 at 4. Judge Aspey appears to have concluded that a ruling in favor 20 of Plaintiff’s § 1983 claim would necessarily suggest that his conviction was invalid. 21 Plaintiff cites Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005), for the 22 proposition that he is not precluded from relief. Doc. 22 at 3. In Smith, the Ninth Circuit 23 held that “a § 1983 action is not barred under Heck unless it is clear from the record that 24 its successful prosecution would necessarily imply or demonstrate that the plaintiff’s 25 earlier conviction was invalid.” Smith, 394 F.3d at 699 (emphasis original). The Smith 26 court concluded that there was nothing in the record to inform it as to the factual basis of 27 the plaintiff’s plea agreement. Id. at 698. As a result, the court noted, it was unable to 28 determine whether the plea agreement was based on conduct that occurred before the -3- 1 plaintiff was arrested, while the plaintiff was being arrested, or both. Id. The court found 2 that Heck would not bar an excessive force claim based on conduct that occurred before 3 or after the conduct for which a plaintiff pleaded guilty, and concluded that the plaintiff’s 4 § 1983 claim was therefore not barred by Heck. Id. Defendant argues that Smith is 5 distinguishable because “Plaintiff alleges only a single continuous series of events in each 6 version of his complaint” and “is not actually arguing that his assault and the excessive 7 force are temporally distinct.” Doc. 24 at 4. 8 The Court does not agree. It is not clear from the record that Plaintiff’s successful 9 prosecution of this action would suggest the invalidity of his conviction. Plaintiff did 10 plead guilty to aggravated assault on Defendant (Doc. 8-2 at 2), but, like Smith, the 11 record does not reveal the factual basis for Plaintiff’s guilty plea. Plaintiff’s proposed 12 amended complaint alleges that he was shot with a Taser while lying on the ground in 13 handcuffs, slammed to the ground twice while unconscious, and dragged twenty feet by 14 the handcuffs while unconscious, and that Defendant cut him with a “taser dart.” See 15 Doc. 10. Accepting these allegations as true for purposes of this motion, it appears 16 highly unlikely that Plaintiff’s aggravated assault conviction was based on conduct that 17 occurred while he was lying on the ground in handcuffs, being slammed to the ground 18 while unconscious, or being dragged twenty feet while unconscious. Thus, it is possible 19 that Plaintiff could prove a § 1983 violation that is temporally distinct from the events 20 that led to his assault conviction. The Court cannot determine, on this record, that 21 Plaintiff’s proposed amendment would be futile under Heck. 22 IT IS ORDERED that Judge Aspey’s R&R (Doc. 18) is rejected. Plaintiff’s 23 motion for leave to file an amended complaint (Doc. 12) is granted. Plaintiff shall file 24 an amended complaint by July 11, 2014. 25 Dated this 13th day of June, 2014. 26 27 28 -4-

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