Donohue III v. Antioch Police Department et al

Filing 46

ORDER RE 6 , 39 , 43 , 44 PENDING MOTIONS AND NOTICE TO PLAINTIFF. Responses due by noon on 8/30/24 from counsel for County of Contra Costa and counsel for City of Antioch. Oppositions to motions to dismiss, if any, due by 9/3/2024 from plaint iff. Signed by Judge Alsup. (whalc2, COURT STAFF) (Filed on 8/28/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KING DAVID LEVON DONAHUE III,
Plaintiff,

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United States District Court
Northern District of California

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v.
ANTIOCH POLICE DEPARTMENT;
COUNTY OF CONTRA COSTA;
CITY OF ANTIOCH; OFFICERS JOSHUA
RIOSBAAS, KYLE SMITH, SHAWN
MARQUES, JACOB KING, RYAN GEIS,
RUDOLPH NIEVES, ARTURO
BECERRA, MATTHEW KOCH,
BRANDON BUSBY, and JOSHUA
EVANS; and PROSECUTOR HEATHER P.
TURNER,

No. C 23-05564 WHA

ORDERS RE PENDING MOTIONS
AND NOTICE TO PLAINTIFF

Defendants.

In this Section 1983 action, King David Levon Donahue III brought claims for relief
against County of Contra Costa, City of Antioch (and its police department), and individual
officers (Dkt. No. 1). Not all defendants were served, however (see Dkt. No. 34), and not all
parties appeared (see ibid.) to hear the first motion to dismiss (Dkt. No. 6). Rather than rule on
the motion, the Court provided Donahue another opportunity to obtain counsel and to clarify
his claims by amending his complaint (at his option), and ordered that the U.S. Marshals serve
the remaining defendant (see Dkt. No. 34). Before the ink was dry on the Court’s order,
plaintiff filed a motion for default judgment and damages of “$15,0012,000.000 USD [sic]”
(Dkt. No. 39 at 4). The remaining defendant was then served (Dkt. Nos. 35, 36). And
Donahue, without following up on pro bono counsel referrals or otherwise obtaining counsel,

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filed an amended complaint (Dkt. No. 40). Donahue then filed, without further leave, a second

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amended complaint (Dkt. No. 42). The first amended complaint purported to add one new

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defendant, County of Contra Costa Prosecutor Heather P. Turner (Dkt. No. 40 at 6, construed

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liberally); the second amended complaint purported to add a second new defendant, City of

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Antioch Police Officer Joshua Evans (Dkt. No. 41 at 1). These defendants were not served or

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did not file certificates of service (see also Dkt. No. 42 (Contra Costa failing to mention by

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name Prosecutor Turner); Dkt. No. 43 at 3 n.5 (Antioch accepting that it represents other

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officers, but not Officer Evans)). All the served defendants timely filed new motions to

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dismiss (Dkt. Nos. 43, 44). This results in the following orders:

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United States District Court
Northern District of California

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1.

The original motion to dismiss filed by Antioch (Dkt. No. 6) as to the original
complaint (Dkt. No. 1) is DENIED AS MOOT.

2. The motion for default judgment filed by Donahue (Dkt. No. 39) is DENIED.

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Donahue asserts facts about service (see id. at 3) that are unsupported by the record of

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service (see, e.g., Dkt. No. 36 at 1). And Donahue seeks default relief of $15,012,000

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now (see Dkt. No. 39 at 4), even though the ordinary process for relief has not run its

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course (see Dkt. No. 34). “Cases should be decided upon their merits whenever

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reasonably possible.” Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). This

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case can be.

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3. The Court construes Donahue’s second amended complaint (Dkt. No. 42) as a motion

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for leave to amend his first amended complaint (Dkt. No. 40) under Rule 15 and

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within the time allowed for amendment and service by Court order (Dkt. No. 34).

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Cf. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995) (duty to construe pro

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se pleadings liberally). The Court likewise construes the motions to dismiss the

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second amended complaint (Dkt. Nos. 43, 44) as non-oppositions to this motion for

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leave to amend, at least as to those movant-defendants (see, e.g., Dkt. No. 43 at 1 n.3,

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3 n.5 (accepting changes except as to addition of defendant)). The motion for leave

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to amend is thus GRANTED. The second amended complaint is thus, as parties have

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treated it, operative.
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or denying whether they legally represent and waive service on behalf of Prosecutor

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Turner and Officer Evans. They shall also attest whether, if they do represent those

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parties, they require supplemental briefing for their motions to dismiss. The Court

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will consider extensions of up to fourteen days and up to seven pages in briefing.

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These sworn declarations are due BY NOON ON AUGUST 30, 2024.

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United States District Court
Northern District of California

4. Counsel for Contra Costa and Antioch shall each submit sworn declarations affirming

5. The ordinary time for Donahue to oppose the existing motions to dismiss from the

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existing defendants is fourteen days. Civil L.R. 7-3(a). The Court indicated it would

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advise parties of appropriate next steps (Dkt. No. 34 at 3). An extension of the

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ordinary time to oppose is appropriate: The Court extends the total time to respond to

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twenty-one days, making Donahue’s opposition to the motions to dismiss (Dkt. Nos.

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43, 44) thus due BY SEPTEMBER 3, 2024.

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6. For avoidance of doubt, plaintiff does not have leave to amend his complaint further.

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IT IS SO ORDERED.

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Dated: August 28, 2024.

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ILLIAM AL
UNITED STATES DISTRICT JUDGE

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