Rice II v. City of Boise City et al

Filing 49

MEMORANDUM DECISION AND ORDER the motion for protective order (docket no. 29 ) is GRANTED IN PART AND DENIED IN PART. Plaintiff shall file a Second Amended Complaint following limited discovery. the motion to dismiss (docket no. 23 ) is DENIED wit hout prejudice to the right of the defendants to challenge the Second Amended Complaint, when it is filed, as insufficient. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LEE ARTHUR RICE II, an individual,
Case No. 1:13-cv-441-BLW
,
MEMORANDUM DECISION AND
ORDER
Plaintiff,
v.
JANET MURAKAMI, NICOLE
HUDSON, ARNEL CATIC, DALE
MOREHOUSE, SCOTT TUCKER,
JEFFREY A. HILL, JAIMEE WIEBE,
TONY FORD, DAN LISTER, MARK
AMBERCROMBIE, ROBERT
ALLISON, TYLER MARSTON, NICK
SHAFFER, MICHAEL VICERS, B.
JOHNSON, D. BARBER, R. BURCH,
D. JOHNSON AND JOHN DOES 1-20,
Defendant.

INTRODUCTION
The Court has before it a motion to dismiss and a motion for protective order, both
filed by the Ada County defendants. The motions are fully briefed and at issue. For the
reasons explained below, the Court will (1) deny the motion to dismiss, and (2) grant in
part and deny in part the motion for protective order, protecting the defendants from full
discovery but not from discovery limited to identifying the role of each defendant in the
events in question.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
This is an excessive force claim brought against various police officers by plaintiff
Rice under § 1983. He alleges that he was pulled over by Officer Janet Murakami for
making an unlawful lane change. When Rice refused to turn over his driver’s license,
and then refused to exit his vehicle, Officer Murakami radioed a “Code 3” emergency,
signaling that she was in a serious situation, prompting some 17 officers to rush to her
assistance. When they arrived on the scene, they forcefully removed Rice from his
vehicle and arrested him. Rice asserts in this lawsuit that the officers used excessive
force in arresting him, and he seeks damages under § 1983.
After originally suing all 17 officers, Rice later dismissed 10 of them. The
remaining Ada County officers have filed a motion to dismiss arguing that Rice has failed
to identify the roles they played in the excessive force. This lack of specificity, they
argue, warrants dismissal. The officers also seek a protective order blocking any
discovery until they can litigate their claim to qualified immunity. The Court will turn
first to the motion to dismiss.
ANALYSIS
Motion to Dismiss
In Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), the Supreme Court held that “a
plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” A complaint must be dismissed when
it “fails to identify what role, if any, each individual defendant had” in the alleged

MEMORANDUM DECISION AND ORDER - 2

unconstitutional conduct. Kwai Fun Wong v. United States, 373 F.3d 952, 960 (9th
Cir.2004).
Here, Rice fails to identify any particular defendant’s role in the excessive force
other than Officer Murakami. For example, Rice alleges that “[t]he officer on Mr. Rice’s
right side, and another officer, on his left side, pulled Mr. Rice forward by his shoulders,
tripping Mr. Rice over the officer’s foot and forcibly throwing him to the ground, face
first, where he was handcuffed.” See Amended Complaint (Dkt. No. 13) at ¶ 39. From
this account, it is impossible to determine which of the named defendants participated in
this particular allegation of excessive force. Similar examples are spread throughout the
complaint, leaving the individual defendants unable to respond because they do not know
the specific allegations asserted against them.
These shortcomings of the complaint violate Iqbal and Kwai Fun Wong, discussed
above. However, the Ninth Circuit has been clear that a dismissal without leave to
amend is only proper if the “complaint cannot be saved by any amendment . . . unless the
amendment would be futile.” Thinket Info. Res., Inc., v. Sun Microsystem,, 368 F.3d
1053, 1061 (9th Cir. 2004). Here, an amendment that identified the role of the remaining
defendants would save the complaint, and the Court cannot find that such an amendment
would be futile. Accordingly, Rice will be given leave to amend his complaint to identify
the individual role of each specific officer. The Court will therefore deny the motion to
dismiss at this time, without prejudice to the right of the defendants to challenge any
amendments as insufficient.

MEMORANDUM DECISION AND ORDER - 3

Motion for Protective Order
The defendants seek a protective order blocking any discovery until they can
litigate their claim to qualified immunity. It is true that “[t]he basic thrust of the
qualified-immunity doctrine is . . . avoidance of disruptive discovery.” Iqbal, 556 U.S. at
685. Nevertheless, the courts have recognized that “limited discovery, tailored to the
issue of qualified immunity, will sometimes be necessary before a district court can
resolve a motion for summary judgment.” Moss v. U.S. Secret Service, 572 F.3d 962,
973 (9th Cir. 2009).
Here, some limited discovery will be necessary because, as discussed above, Rice
must amend his complaint to allege what role each defendant played in his allegations of
excessive force. It would simply be unfair to require Rice – without discovery – to
identify the role of each defendant in what was likely a chaotic scene.
For example, Rice has served discovery requests asking the Ada County
Defendants to identify a timeline for each defendant and identify that defendant’s role in
the take-down and arrest of the Plaintiff. That is the type of limited discovery necessary
to allow Rice a fair opportunity to amend his complaint to satisfy the Iqbal standards.
Accordingly, the Court will grant in part and deny in part the motion for protective
order. The Court will grant the motion to the degree it seeks protection from full-blown
discovery, but will deny it to the extent it seeks protection from limited discovery
necessary to identify the role of each defendant in the events at issue.

MEMORANDUM DECISION AND ORDER - 4

The Court will direct the parties to meet together within the next 30 days to
attempt to agree on (1) a limited discovery plan and (2) a deadline for filing the Second
Amended Complaint. If the parties are unable to reach agreement, they shall contact Law
Clerk Dave Metcalf to set up a conference to resolve their differences.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for protective
order (docket no. 29) is GRANTED IN PART AND DENIED IN PART. It is granted to
the extent it seeks to protect defendants from full discovery. It is denied to the extent it
seeks to protect defendants from discovery limited to identifying the role each defendant
played in the events in question.
IT IS FURTHER ORDERED, that plaintiff shall file a Second Amended
Complaint following limited discovery.
IT IS FURTHER ORDERED, that the parties shall meet together in the next 30
days to agree on (1) a limited discovery plan and (2) a deadline for filing the Second
Amended Complaint. If the parties are unable to reach agreement, they shall contact Law
Clerk Dave Metcalf (208-334-9025 or [e-mail]) to set up a
telephone conference.
IT IS FURTHER ORDERED, that the motion to dismiss (docket no. 23) is
DENIED without prejudice to the right of the defendants to challenge the Second
Amended Complaint, when it is filed, as insufficient.

MEMORANDUM DECISION AND ORDER - 5

DATED: June 18, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 6