Caputo v. City of San Diego Police Dept. et al, No. 3:2016cv00943 - Document 87 (S.D. Cal. 2017)
Court Description: ORDER denying as moot 35 Defendants' Motion to Dismiss for Failure to State a Claim; denying as moot 36 Defendants' Motion to Quash; denying as moot 39 Defendants' Motion to Dismiss; granting 71 Plaintiff's Motion for Leave to File Fourth Amended Complaint. The motion hearing set for 1/11/2018, is VACATED. Plaintiff must file an amended complaint on or before 1/10/2017. Signed by Judge Anthony J. Battaglia on 12/22/2017. (acc)
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Caputo v. City of San Diego Police Dept. et al Doc. 87 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROSE MARIE CAPUTO, Case No.: 16-cv-00943-AJB-BLM Plaintiff, 12 13 14 ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND TO FILE A FOURTH AMENDED COMPLAINT v. CITY OF SAN DIEGO POLICE DEPARTMENT, THE CITY OF SAN DIEGO POLICE COMMISSIONER, et. al., 15 16 (Doc. No. 71) Defendants. 17 18 19 Pending before the Court is Plaintiff Rose Caputo’s (“Plaintiff”) motion for leave to 20 amend to file a fourth amended complaint. (Doc. No. 71.) Plaintiff is not represented by 21 counsel and is proceeding pro se. Defendant the County of San Diego 1 and Defendants 22 Frank Bigler,2 City of San Diego, Andrew Fellows, and Shelley Zimmerman filed separate 23 oppositions to Plaintiff’s motion. (Doc. Nos. 76, 79.) Pursuant to Civil Local Rule 7.1.d.1, 24 the Court finds the motion suitable for determination on the papers and without oral 25 26 27 28 1 Defendant County of San Diego was erroneously sued as the County of San Diego Sheriff’s Department. 2 Defendants spell Defendant Frank Bigler’s name as both Bigler and Biggler. The Court will refer to Defendant as Frank Bigler for purposes of this motion. 1 16-cv-00943-AJB-BLM Dockets.Justia.com 1 argument. Accordingly, the motion hearing set for January 11, 2018, is VACATED. For 2 the reasons set forth more fully below, the Court GRANTS Plaintiff’s motion. 3 I. BACKGROUND 3 4 The instant matter revolves around Plaintiff’s civil action for damages pursuant to 5 42 U.S.C. § 1983. (Doc. No. 26 at 2.)4 Plaintiff contends that her first, fourth, fifth, eighth, 6 and fourteenth amendment rights were violated when she was allegedly unlawfully arrested 7 on March 14, 2015, for domestic battery and then subjected to various forms of assault, 8 harassment, and slander while also deprived of her civil rights and right to medical care 9 while in custody. (Id. at 2, 5.) 10 From what the Court can decipher, the events leading up to Plaintiff instituting this 11 action are as follows. On March 14, 2015, Plaintiff was apprehended and taken into 12 secondary custody by Sergeant Andrew Fellows. (Id. at 5–6.) During her arrest, Plaintiff 13 claims that she cooperated with Defendant Fellows and his various commands. (Id. at 6.) 14 Nevertheless, Defendant Fellows purportedly yelled at Plaintiff and while she was exiting 15 her vehicle at his instruction, he allegedly grabbed her left arm, put her in a choke hold, 16 and then threw her out of her car where she landed on her left shoulder and the left side of 17 her head. (Id. at 7.) Plaintiff then contends that she was cuffed tightly behind her back 18 where she was so traumatized that she lost control of her bladder. (Id. at 7–8.) Throughout 19 this entire ordeal, Plaintiff states that she tried to inform Defendant Fellows that she had 20 nerve damage, severe bulging discs, and that his actions were physically hurting her. (Id. 21 at 7.) 22 This type of brutality allegedly continued to transpire while Plaintiff was in her 23 holding cell and when she was being transported to Scripps Mercy ER. (Id. at 8–9.) 24 Specifically, prior to leaving for the ER, Plaintiff was purportedly denied bathroom 25 26 27 28 3 The following allegations are taken from Plaintiff’s third amended complaint. (Doc. No. 26.) 4 Page numbers refer to the CM/ECF page number and not the page number listed on the original document. 2 16-cv-00943-AJB-BLM 1 privileges despite Plaintiff informing Defendant Bigler that she had a medical condition 2 called “hypertrophied bladder” that causes her pain when she is not allowed to urinate. (Id. 3 at 10.) Defendant Bigler supposedly denied Plaintiff access to the bathroom stating that a 4 female officer needed to be present. (Id.) Consequently, unable to withstand the pain, 5 Plaintiff states that she was forced to urinate on the holding cell floor. (Id.) When Plaintiff 6 was finally transported to the hospital, Plaintiff alleges that Defendant Bigler interfered 7 with her medical care by influencing the doctor to discharge her. (Id. at 11.) 8 In addition to the foregoing, Plaintiff pleads various other claims including that she 9 was never fully read her rights, she was repeatedly denied a phone call while in custody, 10 she was cuffed in a way that caused her debilitating muscle spasms and nerve pain, that 11 Defendant Bigler put Plaintiff on a 5150 hold as a means of punishing her for exercising 12 her first amendment rights, and that Defendants failed to follow their own internal policies 13 and procedures. (See generally Doc. No. 26.) As a result, Plaintiff’s prayer for relief 14 requests that the Court order the San Diego Police Department implement free counseling 15 for citizens involved in cases of police misconduct, punitive and compensatory damages, 16 reimbursement for her medical bills in the sum of $2,466.98, and a settlement of no less 17 than $275,000.00 from the City of San Diego, among other things. (Id. at 21–24.) 18 II. PROCEDURAL BACKGROUND 19 Plaintiff filed her initial complaint on April 19, 2016. (Doc. No. 1.) On the same day, 20 Plaintiff also filed her motion for leave to proceed in forma pauperis and motion to appoint 21 counsel, both of which were denied on June 9, 2016. (Doc. Nos. 2, 3, 7.) On April 20, 2016, 22 Plaintiff filed her amended complaint. (Doc. No. 4.) Thereafter, on April 27, 2016, the 23 Court accepted Plaintiff’s second amended complaint despite several procedural 24 discrepancies. (Doc. No. 6.) On August 8, 2016, Plaintiff wrote a letter to the Court that 25 attempted to attach her third amended complaint for filing on the docket. 5 (Doc. Nos. 14, 26 27 28 5 All of these complaints were filed pre-service and before the summons was issued. (Doc. Nos. 1, 4, 6, 15, 17.) 3 16-cv-00943-AJB-BLM 1 15.) 2 On July 14, 2016, Plaintiff filed an amended motion for leave to proceed in forma 3 pauperis, which was again denied on July 27, 2016, finding that Plaintiff had failed to 4 clarify whether she had access to the income attributable to her spouse. (Doc. No. 9; Doc. 5 No. 13 at 3.) Plaintiff subsequently paid the filing fee on October 19, 2016. (Doc. No. 19.) 6 Beginning in July of 2016, Plaintiff endeavored to file ex parte letters, motions, and 7 additional amended complaints. The majority of these documents were filed as “Document 8 Discrepancies” on CM/ECF. 6 (See Doc. Nos. 21–23, 25.) The Court then permitted 9 Plaintiff to file her third amended complaint on June 21, 2017, in an effort to serve an 10 operative pleading on Defendants within the confines of Federal Rule of Civil Procedure 11 4. 7 (Doc. No. 26.) On July 13, 2017, Plaintiff executed and returned the summons for all 12 Defendants. (Doc. Nos. 28–34.) 13 On July 21, 2017, Defendant the County of San Diego filed a motion to dismiss, 14 (Doc. No. 35), and Defendant Sheriff Gore filed a motion to quash service of summons 15 and for dismissal of the action, (Doc. No. 36). On July 31, 2017, Defendants Frank Bigler, 16 City of San Diego, Andrew Fellows, and Shelley Zimmerman also filed a motion to 17 dismiss. (Doc. No. 39.) The Court set briefing schedules for all three motions. (Doc. Nos. 18 37, 38, 41, 42.) 19 The Court was then again faced with several procedurally defective filings by 20 Plaintiff that were all noticed as “Document Discrepancies.” (See Doc. Nos. 45, 46, 48.) 21 Among the documents was Plaintiff’s motion for leave to amend her third amended 22 complaint filed on September 8, 2017. (Doc. No. 49.) Based upon this filing, the Court 23 24 25 26 27 28 6 The Court notes that Plaintiff was also in constant contact with Judge Battaglia’s Chambers and docketing clerk during this time. 7 On September 8, 2017, the Court issued an order that highlighted that due to a docketing error, Plaintiff’s third amended complaint was not fully scanned onto the docket. (Doc. No. 50.) However, the Court addressed and fixed the error after it was brought to the Court’s attention. (Id.) 4 16-cv-00943-AJB-BLM 1 vacated the hearing dates on Defendants’ motions to dismiss and motion to quash pending 2 the ruling on Plaintiff’s motion for leave to amend. (Doc. No. 52.) 3 Subsequently, the Court was presented with another group of “Document 4 Discrepancies” filed by Plaintiff. (See Doc. Nos. 53, 55, 57, 61, 62, 64, 70.) Plaintiff’s 5 initial motion for leave to amend then followed its normal course and was fully briefed by 6 both parties. However, before the Court issued an order on the motion, Plaintiff filed the 7 instant action, her motion for leave to file a fourth amended complaint. (Doc. No. 71.) 8 Consequently, the Court found as moot Plaintiff’s previous motion for leave to amend. 9 (Doc. No. 73.) On November 20, 2017, Plaintiff attempted to file another motion to amend, 10 which was rejected by the Court as Plaintiff had failed to follow Judge Battaglia’s civil 11 case procedures. (Doc. Nos. 81, 83.) 12 III. LEGAL STANDARD 13 Pursuant to Federal Rule of Civil Procedure 15, leave to amend should be “freely 14 give[n] [] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied 15 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th 16 Cir. 2003) (citation and internal quotation marks omitted). In Foman v. Davis, 371 U.S. 17 178 (1962), the Supreme Court offered several factors for district courts to consider in 18 deciding whether to grant a motion to amend under Rule 15(a): 19 In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’ 20 21 22 23 24 25 26 27 Id. at 182. Additionally, “[a]bsent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence Capital, 316 F.3d at 1052. /// 28 5 16-cv-00943-AJB-BLM 1 IV. DISCUSSION 2 Plaintiff states that the present motion for leave to amend is her “final” request for 3 amendment. (Doc. No. 71 at 1.) The rest of Plaintiff’s three-page motion raises various 4 concerns about the policies and practices of Defendants as a whole while also repeating the 5 emotional and psychological damage she allegedly endured after she was arrested. (See 6 generally id.) Defendant the County of San Diego (the “County”) mounts that any further 7 amendment of Plaintiff’s operative complaint will be futile. (See generally Doc. No. 76.) 8 Defendants City of San Diego, Chief of Police Shelley Zimmerman, Sergeant Andrew 9 Fellows, and Officer Frank Bigler (herein referred to as “Defendants”) focus on Rule 10 12(b)(6)’s standard to argue that leave to amend should be denied as the proposed amended 11 complaint fails to state a claim for which relief can be granted. (See generally Doc. No. 12 79.) 13 The Court first notes that it is cognizant that the policy of applying leave to amend 14 with extreme liberality is particularly true where, as in this case, the party seeking leave to 15 amend is a pro se litigant. See Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 16 2002) (“We are very cautious in approving a district court’s decision to deny pro se litigants 17 leave to amend.”). However, the Court must balance this policy with the fact that “[p]ro se 18 litigants must follow the same rules of procedure that govern other litigants.” Brown v. 19 Rumsfeld, 211 F.R.D. 601, 605 (N.D. Cal. 2002) (citation omitted). Under this lens, the 20 Court now turns to the Foman factors discussed above to determine if leave to amend 21 should be granted. 22 A. 23 Both the County and Defendants center their oppositions on the factor of futility. 24 The County alleges that Plaintiff’s amendment if granted would be futile on seven points: 25 (1) the amended complaint fails to state a claim for municipal federal civil rights liability 26 against the County; (2) the amended complaint fails to allege facts sufficient to state a claim 27 for deliberate indifference as to medical care; (3) violation of a state law/regulation alone 28 does not implicate § 1983; (4) no gender based equal protection discrimination claim is Futility 6 16-cv-00943-AJB-BLM 1 stated based on Plaintiff’s safety cell placement; (5) no Americans with Disabilities Act 2 (“ADA”) or rehabilitation act claim is stated against the County; (6) no basis exists for the 3 injunctive relief requested; and (7) no negligence claim is stated against the County. (See 4 generally Doc. No. 76.) Defendants in their separate opposition request that the Court 5 dismiss the case as the allegations in the proposed fourth amended complaint would not 6 cure the previously pled deficiencies. (See generally Doc. No. 79.) 7 A court may deny leave to amend if the proposed amendment is futile or would be 8 subject to dismissal. See Carrico v. City & Cty. Of San Francisco, 656 F.3d 1002, 1008 9 (9th Cir. 2001). The test of futility “is identical to the one used when considering the 10 sufficiency of a pleading challenged under Rule 12(b)(6).” Miller v. Rykoff-Sexton, Inc., 11 845 F.2d 209, 214 (9th Cir. 1988), implied overruling on other grounds by Ashcroft v. 12 Iqbal, 556 U.S. 662 (2009). 13 Even taking Plaintiff’s allegations in the proposed fourth amended complaint as true, 14 the County and Defendants are correct that Plaintiff’s amendment is futile. First, as 15 Defendants have highlighted, in general, Plaintiff’s amendment would not withstand a 16 motion to dismiss under Federal Rule of Civil Procedure 8. Rule 8 only requires “a short 17 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. 18 P. 8(a). However, at fifty pages in length, Plaintiff’s proposed amended complaint is at 19 times disjointed and overall leaves each of the Defendants to speculate as to which cause 20 of action is being brought against them. See Erickson v. Pardus, 551 U.S. 89, 93 (2007) 21 (explaining that under Rule 8, a complaint must “give the defendant fair notice of what the 22 … claim is and the grounds upon which it rests.”) (internal quotation marks omitted). 23 Moreover, despite naming the County as a Defendant, Plaintiff’s complaint wholly 24 fails to allege how the County may be held liable for a federal civil rights violation. See 25 Monell v. Dep’t of Soc. Serv. Of City of New York, 436 U.S. 658, 690 (1978) (“Local 26 governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, 27 or injunctive relief where, as here, the action that is alleged to be unconstitutional 28 implements or executes a policy statement, ordinance, regulation, or decision officially 7 16-cv-00943-AJB-BLM 1 adopted and promulgated by that body’s officers.”). Further, despite a litany of other 2 allegations, the Court finds that Plaintiff’s complaint does not plead facts that would 3 support an equal protection or ADA claim. See Village of Willowbrook v. Olech, 528 U.S. 4 562, 564 (2000) (“Our cases have recognized successful equal protection claims brought 5 by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated 6 differently from others similarly situated and that there is no rational basis for the 7 difference in treatment.”); see also Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) 8 (“To establish a violation of Title II of the ADA, a plaintiff must show that (1) she is a 9 qualified individual with a disability; (2) she was excluded from participation in or 10 otherwise discriminated against with regard to a public entity’s services . . . . and (3) such 11 exclusion or discrimination was by reason of her disability.”). 12 Accordingly, finding that Plaintiff’s proposed fourth amended complaint is littered 13 with various pleading deficiencies, this factor weighs heavily in favor of denying leave to 14 amend. 15 B. 16 Neither the County nor Defendants clearly touch upon the rest of the Foman factors. 17 However, the Court finds that the majority of the remaining factors support granting leave 18 to amend. The Remainder of the Foman Factors 19 With regard to undue delay, as already noted, Plaintiff has been constantly amending 20 her complaint since April of 2016.8 (Doc. Nos. 1, 4, 6, 15, 26.) Defendants contend that 21 Plaintiff’s continual alterations are little more than a delay tactic. (Doc. No. 79 at 2.) 22 However, the Court again notes that the majority of Plaintiff’s various amendments were 23 made pre-service. (Doc. Nos. 1, 4, 6, 15, 26.) Most notably, it seems to the Court that 24 25 26 27 28 8 Defendants argue that Plaintiff has had six opportunities to craft a legally sufficient complaint. (Doc. No. 79 at 2.) Defendants than point to ECF document numbers 1, 2, 6, 14, 26, 49. Id. However, the Court notes that ECF document 2 is Plaintiff’s motion for leave to proceed in forma pauperis and not an attempt to file an amended complaint. (Doc. No. 2.) 8 16-cv-00943-AJB-BLM 1 Plaintiff persistently amends her complaint as she learns the nuances of the law as a pro se 2 litigant. Thus, finding that the County and Defendants would not be prejudiced by this 3 amendment and that there is no evidence that Plaintiff delayed in bringing her motion, this 4 factor weighs in favor of granting leave to amend. See Davis v. Powell, 901 F. Supp. 2d 5 1196, 1212 (S.D. Cal. 2012) (holding that undue delay is delay that “prejudices the 6 nonmoving party or imposes unwarranted burdens on the court.”). Next, there is no 7 indication that Plaintiff seeks amendment in bad faith. See Cf. Leon v. IDX Sys. Corp., 464 8 F.3d 951, 961 (9th Cir. 2006). In relation to the factor of “previous amendments,” the Court 9 notes that this will only be the second time Plaintiff has requested leave to amend her 10 complaint post-service—though the first motion for leave to amend was denied as moot 11 based on the filing of the instant motion. (Doc. No. 73.) The Court offsets this point 12 however with the fact that Plaintiff has repeatedly amended her complaint since she first 13 filed this lawsuit in 2016. Accordingly, this factor weighs neutrally. See Chodos v. West 14 Publ’g Co. Inc., 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has already 15 granted a plaintiff leave to amend, its discretion in deciding subsequent motions to amend 16 is ‘particularly broad.’”) (citation omitted). 17 As to prejudice, the factor that carries the “greatest weight” among the five Foman 18 factors, Eminence Capital, 316 F.3d at 1052, the Court finds that Plaintiff has altered and 19 transformed the causes of action pled in her third amended complaint in comparison with 20 her proposed fourth amended complaint. (See generally Doc. Nos. 26, 71.) However, as 21 the allegations that led up to her claims remain the same, the County and Defendants would 22 not be substantially prejudiced by amendment; nor do their opposition briefs clearly argue 23 that they will suffer prejudice if amendment is granted. Thus, this factor weighs in favor of 24 granting leave to amend. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 25 1987) (noting that the party opposing amendment “bears the burden of showing 26 prejudice.”); see also United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981) (finding 27 that mere addition of new claims in a proposed amended complaint is insufficient to 28 support denial under Rule 15); Mayeaux v. Louisiana Health Serv. and Indem. Co., 376 9 16-cv-00943-AJB-BLM 1 F.3d 420, 427 (5th Cir. 2004) (finding that when an amendment merely incorporates 2 alternative theories using existing facts, it falls safely within Rule 15(a)’s policy of 3 promoting litigation on the merits over procedural technicalities). 4 C. 5 In sum, the majority of the Foman factors weigh in favor of granting leave to amend, 6 with futility being the only factor that weighs against amendment. The Court notes however 7 that “[f]utility alone can justify the denial of a motion to amend.” Johnson v. Buckley, 356 8 F.3d 1067, 1077 (9th Cir. 2004) (citation omitted). Nevertheless, at this juncture, the Court 9 finds that denial based solely on futility is not warranted. 10 V. Balancing of the Foman Factors CONCLUSION 11 For the foregoing reasons, and in the interests of judicial economy, Plaintiff’s motion 12 for leave to amend is GRANTED. Plaintiff must file an amended complaint on or before 13 January 10, 2017. The Court emphasizes that Plaintiff is being given one last attempt to 14 amend. Thus, the Court stresses that Plaintiff should look at the numerous challenges 15 Defendants have made in their various motions so that she may correct the issues present 16 in her fourth amended complaint. As to Defendants’ two motions to dismiss and motion to 17 quash service of summons filed on July 21, 2017, and July 31, 2017, (Doc. Nos. 35, 36, 18 39), these motions are DENIED AS MOOT. 19 20 IT IS SO ORDERED. 21 Dated: December 22, 2017 22 23 24 25 26 27 28 10 16-cv-00943-AJB-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 16-cv-00943-AJB-BLM
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