Nash-Perry v. City of Bakersfield, et al.

Filing 37

ORDER GRANTING 29 Motion to Dismiss signed by Chief Judge Lawrence J. O'Neill on 10/9/2019. (Lundstrom, T)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 TAMETRIA NASH-PERRY, 7 1:18-CV-01512-LJO-JLT Plaintiff, 8 v. 9 ORDER GRANTING MOTION TO DISMISS (ECF NO. 29) CITY OF BAKERSFIELD, OFFICER ALEJANDRO PATINO, JASON OKAMOTO, as a nominal defendant, and DOES 1-10, inclusive, 10 11 Defendants. 12 13 14 This action, initially filed October 31, 2018, concerns a use of deadly force incident on August 15 19, 2018. Plaintiff Tametria Nash-Perry alleges in her currently operative Third Amended Complaint 16 (“TAC”) that Defendant Police Officers of the City of Bakersfield used excessive, deadly force when 17 they shot and killed her son, Christopher Okamoto. ECF No. 27. The TAC also includes claims against 18 the City of Bakersfield. Id. 19 Before the Court for decision is Defendants’ motion to dismiss: (1) Plaintiff’s Fifth Amendment 20 claim on the ground that no such claim can be maintained against a non-federal defendant; (2) Plaintiffs’ 21 claim of entitlement to bring any survival action for failure to comply with California Code of Civil 22 Procedure (“CCCP”) § 377.21, which requires the filing of an affidavit or declaration providing certain 23 information about the Plaintiff’s right to commence an action for the decedent; and (3) Plaintiffs’ 24 negligence claim for failure to allege properly the elements of that tort. ECF No. 29. 25 Plaintiff does not oppose dismissal. She does not address dismissal of the Fifth Amendment 1 1 claim, but maintains leave to amend would be appropriate as to the survival and negligence actions. ECF 2 No. 30. Specifically, Plaintiff asserts she is in a position to comply with CCCP § 377.32 in any amended 3 complaint, id. at 4-5, and presents specific proposed language she intends to include in any amended 4 negligence claim. Id. at 607. Defendants do not object to the Court permitting Plaintiff to file a fourth 5 amended complaint, so long as that amendment is the last. See ECF No. 31. 6 Accordingly, having reviewed the entire record, the Court GRANTS the motion to dismiss. The 7 Fifth Amendment claim is DISMISSED WITHOUT LEAVE TO AMEND. Because Plaintiff has 8 provided viable bases for amendment of the survival and negligence claims, those claims are 9 DISMISSED WITH LEAVE TO AMEND. There will be no further opportunities for amendment. It is 10 time for this case to move forward. CONCLUSION AND ORDER 11 12 For the reasons set forth above: 13 (1) The Fifth Amendment claim is DISMISSED WITHOUT LEAVE TO AMEND; and 14 (2) The survival and negligence claims are DISMISSED WITH LEAVE TO AMEND. 15 (3) Any amended complaint shall be filed within fourteen (14) days of the date of this order; Thereafter, Defendants shall have fourteen (14) days to file a responsive pleading or motion. 16 17 (4) There will be no further opportunities for amendment. 18 19 IT IS SO ORDERED. 20 Dated: /s/ Lawrence J. O’Neill _____ October 9, 2019 UNITED STATES CHIEF DISTRICT JUDGE 21 22 23 24 25 2

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