Opinion
CV-20-01245-PHX-DJH (JZB)
05-17-2022
Jason Phillip Fenty, Plaintiff, v. Joshua Hickman, et al., Defendants.
REPORT & RECOMMENDATION
Honorable John Z. Boyle, United States Magistrate Judge
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
Plaintiff Jason Phillip Fenty has filed a Motion to Amend Complaint. (Doc. 27.) Because the proposed amendment would be futile for the reasons explained below, the Court recommends the Motion to Amend Complaint be denied.
I. Background.
On June 22, 2020, Plaintiff, while confined in a Maricopa County jail, filed a three-count pro se civil rights complaint against Glendale Police Officer Joshua Hickman and Prosecutor Douglas Mangum. (Doc. 1.) In its July 7, 2020 Screening Order, the Court summarized Plaintiff's claims as follows:
In Count One, Plaintiff alleged he was subjected to an illegal seizure, in violation of his Fourth Amendment rights. He contends that when Defendant Hickman was responding to a shoplifting call at a Walmart “for a suspect that was already detained,” he “assumed [Plaintiff] was shoplifting” and,
“without any reasonable suspicion,” detained Plaintiff. Plaintiff claims he was “roughly handled” and “told to get on the ground, which resulted in a de[ ]facto arrest,” was searched and questioned, and was not free to leave. Plaintiff asserts it “was later found out” that he was not involved in the shoplifting.
In Count Two, Plaintiff alleges he was subjected to malicious prosecution, false testimony, and a violation of his due process rights. He claims that after he was “illegally detained,” he was alleged to be in possession of a false identification and was indicted for identity theft and forgery. Plaintiff contends that at a suppression hearing to determine if there had been reasonable suspicion to detain him, Defendant Hickman testified that (1) “as part of the initial call, . . . three men were involved in a shoplifting and [were] collaborating”; (2) a Walmart employee had pointed to Plaintiff and had stated Plaintiff was involved in the shoplifting; and (3) Plaintiff “suspiciously walked past the car he arrived in, to avoid law enforcement officers.” Plaintiff asserts that after the trial court denied the motion to suppress, a court-appointed investigator obtained the audio from the 911 call, the Axon body camera footage, and the “CAD history report[,] and it was determined that [Defendant] Hickman knowingly, intentionally, and reckless disregard for the truth, gave false testimony under oath to create reasonable suspicion to lawfully detain [Plaintiff].”
In Count Three, Plaintiff alleges a violation of his due process rights. He claims that “an affidavit concerning the false testimony by [Defendant] Hickman was entered into the record.” Plaintiff asserts Defendant Mangum did not rebut the affidavit, but sought to strike it because Plaintiff “failed to ask for relief.” Plaintiff contends the trial court denied the motion to strike. Plaintiff also claims that in a March 18, 2020 motion, he “asked for relief' based on a United States Supreme Court decision which, according to Plaintiff, held that “a ruling obtained through use of false testimony, known to be such by representatives of the State[,] is a denial of due process when the State, though not soliciting the false evidence, allows it to go uncorrected.” Plaintiff contends Defendant Mangum did not respond to the motion or correct the false testimony. Plaintiff alleges Defendant Mangum “knows [Defendant] Hickman's testimony is false and that testimony was material” to the suppression hearing ruling, had a duty “to correct it” once he became aware of the false testimony, but “turned a blind eye toward[ Plaintiff's] due process rights.”(Doc. 5 at 3-4 (alterations in original).)
The Court dismissed Counts Two and Three and Defendant Mangum and ordered Defendant Hickman to file a brief within 60 days after service or waiver of service on the status of any criminal cases against Plaintiff related to the incident described in the Complaint and the applicability of Wallace v. Kato, 549 U.S. 384 (2007) and Gilbertson v. Albright, 381 F.3d 965, 981 (9th Cir. 2004). (Id. at 8-9.)
Defendant Hickman subsequently waived service (doc. 7) and filed a brief advising the Court that Plaintiff had been charged with one count of identity theft and one count of forgery in State of Arizona v. Jason Phillip Fenty, CR2019-001141 (doc. 9). The Court stayed the case pending the resolution of Plaintiff's criminal case. (Doc. 13 at 4.) In his response to Defendant Hickman's brief, Plaintiff had requested to add a negligent hiring claim against the Glendale Police Department. (Doc. 10 at 6.) The Court denied this request and advised Plaintiff that any new claims had to be brought in an amended complaint and that the Glendale Police Department, as a subpart of the City of Glendale, was incapable of being sued separately. (Doc. 13 at 3-4.)
On December 6, 2021, Defendant Hickman notified the Court that Plaintiff had been convicted on both counts in his criminal case. (Doc. 20; see Doc. 20-1 (Sentencing Order).) The Court lifted the stay and ordered Defendant Hickman to answer Count One. (Doc. 21.) Defendant Hickman did so on March 9, 2022. (Doc. 25.)
The Maricopa County Superior Court sentenced Plaintiff to 5.5 years in prison for the identity theft conviction (with 1,248 days of credit for time served) followed by 2 years of probation for the forgery conviction. (Doc. 20-1.)
Prior to Defendant Hickman filing his Answer, Plaintiff filed a motion to add a negligent hiring claim against the City of Glendale. (Doc. 23.) The Court construed Plaintiff's motion as a motion to amend his complaint and denied it for Plaintiff's failure to attach a proposed amended complaint and to indicate how it differed from the original complaint as required by LRCiv 15.1(a). (Doc. 24.)
Plaintiff filed the instant motion to amend on March 14, 2022. (Doc. 27.) Defendant Hickman responded. (Doc. 28.) Plaintiff did not file a reply.
II. Motion to Amend and Proposed Amended Complaint.
Plaintiff seeks to amend his complaint to state claims against the City of Glendale (“City”). (Doc. 27.) Plaintiff includes a “Proposed Amended Pleading” and accompanying exhibits as Exhibit A to his motion. (Docs. 27-1, 27-2.) With the exception of what Plaintiff designates as pages 6(a)-(e) therein, the Proposed Amended Pleading is identical to Plaintiff's response to Defendant Hickman's pre-answer brief (doc. 9). (Compare Doc. 271 at 2-12 with Doc. 10 at 1-7.)
In Count Two of the Proposed Amended Pleading, Plaintiff claims the City was negligent in the “hiring, training, and supervising” of Defendant Hickman. (Doc. 27-1 at 7-8.) In Count Three, Plaintiff claims the City is vicariously liable for Defendant Hickman's alleged “negligence.” (Id. at 8.) In Count Four, Plaintiff asserts aMonell claim under 42 U.S.C. § 1983 alleging the City's alleged failure to adequately train its officers and employees “caused the deprivation of [his] rights by Defendant Hickman.” (Id. at 910.) In Count Five, Plaintiff claims “nepotism occurred” when the City hired Defendant Hickman. (Id. at 11.)
Plaintiff did not include a Count One in his Proposed Amended Pleading. If he intended for Count One of his original complaint to be Count One of his amended complaint, he needed to include it in the Proposed Amended Pleading to avoid abandoning it. See Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“[A]n amended complaint supersedes the original, the latter being treated thereafter as non-existent.”) (quotation marks and citation omitted); see also LRCiv 15.1(b) (“The amended pleading must not incorporate by reference any part of the preceding pleading, including exhibits.”).
Monell v. Dep 't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
In response, Defendant Hickman argues the motion should be denied because Plaintiff failed to comply with LRCiv 15.1; his state law claims are barred by A.R.S. §§ 12821, 12-821.01; and his § 1983/Monell claim is untimely, does not relate back to the filing date of the original complaint, and is inadequately pled. (Doc. 28.) These assertions are undisputed as Plaintiff did not reply to them.
III. Screening of Complaints by Prisoners & Amendment of Complaints.
The Prison Litigation Reform Act of 1995 requires the Court to screen complaints brought by prisoners against a governmental entity or an officer or employee thereof. 28 U.S.C. § 1915A(a); Jones v. Bock, 549 U.S. 199, 213 (2007). Upon screening, the Court must dismiss claims that: (1) are “frivolous” or “malicious,” (2) “fail[] to state a claim upon which relief may be granted,” or (3) “seek[] monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
In determining whether a claim states a claim for relief, the Court applies the pleading standard of Rule 8. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). Under Rule 8, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). To meet this standard, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While a complaint need not contain “‘detailed factual allegations,'” it must contain “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Although a pro se complaint must be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), “a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997). And, although a court should “freely give leave [to amend] when justice so requires,” Fed.R.Civ.P. 15(a)(2), it need not give leave if the proposed amendment would be futile. See, e.g., Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”); Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (“A district court does not err in denying leave to amend where the amendment would be futile.”); Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083, 1088 (9th Cir. 2002) (“Because any amendment would be futile, there is no need to prolong the litigation by permitting further amendment.”).
IV. Discussion.
A. Counts Two and Three are untimely and statutorily barred.
Counts Two and Three are state law negligence claims premised on the alleged negligence exhibited by Defendant Hickman during his arrest of Plaintiff on July 1, 2018. (Doc. 27-1 at 7-8; see Doc. 28-1 at 4-8 (Police Report).)
A claim against a “public entity” must be brought within one year after the claim accrues. A.R.S. § 12-821. Prior to bringing the claim, a notice of claim must be served on the public entity within 180 days after the claim accrues. A.R.S. § 12-821.01.A; see Martineau v. Maricopa Cnty., 207 Ariz. 332, 334 (App. 2004) (stating that filing a notice of claim is a “‘mandatory and ‘essential perquisite'” to a cause of action against a public entity). A claim against a public entity “accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage.” A.R.S. § 12-821.01.B.
Counts Two and Three accrued on July 1, 2018, the day of Plaintiff's arrest. See id.; cf. Medrano v. City of Phoenix, 2014 WL 5494931, at *2 (Ariz. App. Oct. 30, 2014) (“Claims for false arrest and imprisonment accrue on the date of the arrest.”). As such, Plaintiff was required to file a notice of claim on the City by December 28, 2018 and to file suit against the City by July 1, 2019. A.R.S. §§ 14-821.01.A, 14-821. Plaintiff did neither and asserts no basis for equitable tolling of these deadlines. Even if Counts Two and Three related back to the original Complaint, they would still be untimely because Plaintiff did not file the Complaint until June 22, 2020 (doc. 1). Consequently, Counts Two and Three are untimely and statutorily barred. See A.R.S. § 14-821; Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 295 (2007) (“Claims that do not comply with A.R.S. § 12-821.01.A are statutorily barred.”). Granting leave to amend to permit Counts Two and Three to go forward would therefore be futile.
See generally McCloud v. State, Ariz. Dep't of Public Safety, 217 Ariz. 82, 87 (App. 2007) (“‘Under equitable tolling, plaintiffs may sue after the statutory time period for filing a complaint has expired if they have been prevented from filing in a timely manner due to sufficiently inequitable circumstances.'” (citation omitted)).
B. Count Four alleging a Monell claim against the City is untimely.
In Count Four of the Proposed Amended Pleading, Plaintiff asserts a Monell claim against the City of Glendale under 42 U.S.C. § 1983. (Doc. 27-1 at 9-10.) Specifically, Plaintiff alleges that the City failed to adequately train its officers and employees, including Defendant Hickman, and that it was “deliberately indifferent to the obvious consequences” flowing therefrom, namely, “the deprivation of . . . Plaintiff's rights by Defendant Hickman.” (Id.)
1. Statute of Limitations.
Plaintiff's claim in Count Four is statutorily time-barred, and is thus futile. The Arizona statute of limitations for personal injury torts applies to 42 U.S.C. § 1983 claims. See Wallace, 549 U.S. at 387 (“Section 1983 provides a federal cause of action, but in several respects relevant here federal law looks to the law of the State in which the cause of action arose. This is so for the length of the statute of limitations: It is that which the State provides for personal-injury torts.”); see also TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (“Section 1983 does not contain its own statute of limitations. Without a federal limitations period, the federal courts borrow the statute of limitations for § 1983 claims applicable to personal injury claims in the forum state.”). In Arizona, pursuant to A.R.S. § 12-542, the statute of limitations for personal injury claims is two years. See A.R.S. § 12-542; TwoRivers, 174 F.3d at 991 (“In Arizona, the courts apply a two-year statute of limitations to § 1983 claims.”).
Here, Plaintiff's potential Monell claim against the City accrued no later than July 1, 2018 - the date of Plaintiff's arrest and encounter with City of Glendale Police Officer, Defendant Hickman. (Doc. 1 at 7.) Therefore, the statute of limitations to bring a claim against the City on that claim expired on July 1, 2020. See A.R.S. § 12-542. On June 22, 2020, Plaintiff initiated this action by filing a Complaint against Officer Hickman. (See Doc. 1.) But Plaintiff did not name the City as a defendant in any pleading until more than 19 months later, on February 10, 2022, when he filed a motion to add the City as a Defendant. (See Docs. 23 (Motion to Add City as Defendant), 24 (Denying Motion to Add for failing to comply with local and federal rules).)
Accordingly, the Court finds that absent Plaintiff's claim against the City relating back to the original Complaint, Plaintiff's claims are time barred.
2. Plaintiff's Claim does not Relate Back.
Under Federal Rule 15(c)(1)(C), an amended complaint relates back when the following conditions are met: “‘(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it.'” Butler, 766 F.3d at 1202 (quoting Schiavone v. Fortune, 477 U.S. 21, 29 (1986)). “Additionally, the second and third requirements must have been fulfilled within [90] days after the original complaint is filed, as prescribed by Federal Rule of Civil Procedure 4(m).” Id. (citation omitted).
Federal Rule of Civil Procedure 15(c)(1) also incorporates the relation back rules of state law “when that state's law provides the applicable statute of limitation and is more lenient.” Butler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198-1201 (9th Cir. 2014). Therefore, the Court must consider both federal and state law “and employ whichever affords the more permissive relation back standard.” Id. at 1201. Under Arizona Rule of Civil Procedure 15(c), an amendment changing a party relates back to the date of the original pleading when (1) “the amendment asserts a claim . . . that arose out of the conduct, transaction, or occurrence set forth . . . in the original pleading,” and (2) “within the applicable limitations period-plus the period provided in Rule 4(i) for service of the summons and complaint-the party to be brought in by amendment:
(i) has received such notice of the institution of the action that it will not be prejudiced in maintaining a defense on the merits; and
(ii) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.Ariz. Rule of Civ. P. 15(c). The limitations period for service prescribed by Rule 4(i) is “90 days after the complaint is filed.” Ariz. R. Civ. P. 4(i).
Thus, the state and federal rules governing relation back are nearly identical and neither appears more permissive than the other.
a. Same Conduct, Transaction, or Occurrence
Here, the first condition for relation back is met because the Proposed Amended Complaint sets forth the same conduct, transaction, or occurrence as the original pleading.
b. Notice
Next, for an amendment to relate back, the new party must have received notice of the action within 90 days of the original Complaint and “not be prejudiced in defending on the merits.” Fed.R.Civ.P. 15(c)(1)(C)(i), 4(m). Notice within this time period need not be formal. Advisory Committee Notes on 1966 Amendment to Fed.R.Civ.P. 15. Notice may be actual or constructive or it may be imputed to a defendant with an “identity of interest” with the named defendant. G.F. Co. v. Pan Ocean Shipping Co., Ltd., 23 F.3d 1498, 1503 (9th Cir. 1994); see Schiavone v. Fortune, 477 U.S. 21, 29 (1986) (if there is a sufficient agency or community of interest between the person served and the intended defendant, notice may be imputed to the intended defendant). Also, “[i]nformal notice is sufficient if it allows the defendant the opportunity to prepare a defense.” Abels v. JBC Legal Group, P.C., 229 F.R.D. 152, 158 (N.D. Cal. 2005).
Here, Plaintiff fails to show that the City had notice of a potential Monell claim either before the statute of limitations expired on July 1, 2020, or within 90 days of the filing of the original complaint (September 21, 2022). That failure is fatal to Plaintiff's amended claim. See Watson v. City of Kingston, 2016 WL 11605147, at *3 (N.D.N.Y. 2016) (denying leave to amend to add Monell claim where “the statute of limitations expired before” the City defendant became a named defendant, and finding there was “no basis for relation back” under Fed.R.Civ.P. 15(c)(1)(C)). See also Scott v. Village of Spring Valley, 577 Fed. App'x 81, 83 (2d Cir. 2014) (holding there is no relation back to the original complaint where the plaintiff “does not correct a mistake of fact,” but instead adds new parties in a proposed amendment); cf. Krupski v. Coasta Crociere S. p. A., 560 U.S. 538, 554-55 (2010) (a claim relates back when the plaintiff misunderstood which entity was in charge of ship that allegedly caused injury); Callicutt v. Scalise, No. 11 Civ. 1282, 2013 WL 432913, at *5 (N.D.N.Y. Feb. 4, 2013) (“Even granting Plaintiff's submissions the generous reading that they are owed, the Court finds no basis to conclude that Defendants had actual knowledge of Plaintiff's claims against them.”).
Accordingly, because Plaintiff cannot show the City had timely notice of his potential Monell claim, Plaintiff's Count Four of the Proposed Amended Complaint does not relate back to the original Complaint, and is time barred and thus futile.
C. Plaintiff does not have standing to bring Count Five.
Count Five alleges the City engaged in “nepotism” when it hired Defendant Hickman. (Doc. 27-1 at 11.) Plaintiff alleges no facts in support of this claim in Count Five. (See id.) However, on the previous page of his Proposed Amended Pleading, under Count Four, Plaintiff alleges Defendant Hickman's “uncle” was the Chief of the Glendale Fire Department. (Id. at 10.)
Count Five is ostensibly brought pursuant to A.R.S. § 38-481, Arizona's antinepotism statute, which makes nepotism, as defined by A.R.S. § 38-481.A, a class 2 misdemeanor. A.R.S. § 38-481.B. Plaintiff, however, cites no authority to support that he has standing to bring a free-standing nepotism claim under A.R.S. § 38-481 and fails to show any connection between the alleged nepotism and his alleged injuries that would support standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (“[T]here must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” (emphasis added; cleaned up)); Wylie v. Mont. Women's Prison, 2014 WL 1871825, at *10 (D. Mont. May 8, 2014) (“[Plaintiff] has no right to a policy against a practice of nepotism, much less standing to enforce a prison's or a state's anti-nepotism policy.”); Boyer v. Taylor, 2008 WL 835703, at *4 (D. Del. Mar. 28, 2008) (“[P]laintiffs have not shown that they suffered a personal injury caused by the alleged nepotism in the DOC. Hence, they have no standing to raise the claim and, therefore, the court will deny their motion for injunctive relief on the nepotism issue.”). In any event, Plaintiff also failed to serve the City with a notice of claim in regards to the alleged nepotism, which, on its own, precludes him from asserting it now. See A.R.S. § 12-821.01.A; Houser, 214 Ariz. at 295. Granting leave to amend to permit Count Five to go forward would therefore be futile.
V. Conclusion.
For the reasons detailed above, each claim in the Proposed Amened Complaint is futile. Accordingly, the Court will recommend that the Motion to Amend be denied.
IT IS RECOMMENDED that Plaintiff's Motion to Amend (doc. 27) be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.1.