Jason Call v. Sa Matt Badgley et al

Northern District of California, cand-4:2015-cv-03353

ORDER by Judge Haywood S. Gilliam, Jr. DENYING {{99}} MOTION FOR LEAVE TO AMEND.

Interested in this case?

Current View

Full Text

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JASON CALL, Case No.15-cv-03353-HSG Plaintiff, 8 ORDER DENYING MOTION FOR v. LEAVE TO AMEND 9 10 SA MATT BADGLEY, et al., Re: Dkt. No. 99 Defendants. 11 12 Northern District of California United States District Court 13 Pending before the Court is Plaintiff Jason Call's motion for leave to amend the second 14 amended complaint to add Humboldt County Sheriff's Deputy Troy Fulton as a defendant and to 15 add excessive use of force and assault claims against both him and Defendant Eureka Police 16 Officer Stanley Harkness. Dkt. No. 99. For the reasons articulated below, the motion is DENIED. 17 I. BACKGROUND 18 A. Factual Background1 19 In 2011, the California Department of Justice began investigating a suspected marijuana 20 distribution operation. Dkt. No. 77-3 ¶¶ 12–13. Based on surveillance, the government suspected 21 that Plaintiff was involved, and Humboldt County Superior Court Judge Timothy Cissna issued a 22 search warrant for Plaintiff's residence on January 12, 2012. Dkt. No. 77-4 at BNE-0068–88, 96– 23 103. On the morning of January 19, 2012, members of the Humboldt County Sherriff's Office, 24 Humboldt County Drug Task Force, and the California Department of Justice, Bureau of Narcotics 25 Enforcement Task Force executed the search warrant. As part of the search, officers seized 78 26 marijuana plants, a triple beam scale, individually packaged marijuana, prescription pills, and 27 1 28 The facts of this case are detailed at length in the Court's recent order granting partial summary judgment. Dkt. No. 106. The Court incorporates those facts here. 1 multiple firearms. Dkt. No. 77-6 ¶ 16. Plaintiff claimed the marijuana was legal under 2 California's Compassionate Use Act of 1996. 3 In February 2015, the Humboldt Superior Court quashed the search warrant, finding that it 4 was based on stale information. Dkt. No. 86-1. On June 1, 2015, Plaintiff filed this action in 5 Humboldt County Superior Court against Humboldt County and individual officers employed by 6 the State of California, Humboldt County, and the City of Eureka (collectively, "Defendants"). 7 Dkt. No. 1. Plaintiff alleges twelve federal and state causes of action against eighteen Defendants 8 arising from the execution of the search warrant at his home. Dkt. No. 69. 9 B. Procedural Posture 10 In his first amended complaint, filed on November 30, 2015, Plaintiff alleged that an 11 unnamed Defendant pointed an automatic rifle at Plaintiff's chest in the course of the search. On 12 the basis of this fact, Plaintiff alleged an unreasonable use of force claim against the unnamed Northern District of California United States District Court 13 Defendant. Dkt. No. 34 ¶¶ 24, 40, 58–61. On August 2, 2016, Plaintiff requested leave to amend 14 the first amended complaint to add Humboldt County Sherriff's Office Sergeant Blake Massaro as 15 the unnamed defendant. Dkt. No. 58. Defendants argued that Massaro was not on the roster of 16 agents present at the search, Massaro had no recollection of being at Plaintiff's home, and Massaro 17 had attended training the day of the search in Napa, California. See Dkt. Nos. 59, 60. Plaintiff 18 stated, however, that he had seen Massaro in June 2016 and recognized him as the person who 19 pointed the gun at him during the search. Dkt. No. 58-1 ¶¶ 12–16. The Court accordingly granted 20 Plaintiff leave to amend the complaint to add Massaro as a Defendant on September 13, 2016. 21 Dkt. No. 62. When Plaintiff failed to timely amend the complaint, the Court granted additional 22 time to do so at Plaintiff's request. See Dkt. Nos. 66–68. Plaintiff filed the second amended 23 complaint on November 10, 2016. Dkt. No. 69. 24 Since that time, fact discovery closed on December 30, 2016, and expert discovery closed 25 on February 17, 2017. See Dkt. No. 65 (Scheduling Order). Defendants filed motions for 26 summary judgment by the March 23, 2017, deadline and the hearing was held on April 27, 2017. 27 Dkt. Nos. 77, 94. On May 16, 2017, the Court granted Defendants' motions for summary 28 judgment on the basis of qualified immunity and declined to exercise supplemental jurisdiction 2 1 over the remaining state law claims. Dkt. No. 106. 2 II. ANALYSIS 3 After the parties completed briefing on the motions for summary judgment, Plaintiff filed 4 the pending motion for leave to amend the second amended complaint to add allegations and 5 causes of action against Fulton and Harkness for excessive use of force, unreasonable search and 6 seizure, and assault. Dkt. No. 99. In doing so, Plaintiff acknowledges that Massaro was not 7 responsible for the alleged conduct and should be dismissed from the case. See id. at 2; Dkt. No. 8 62 at 6. 9 A. Legal Standard 10 The parties disagree as to whether Plaintiff's motion for leave to amend should be 11 evaluated under Federal Rule of Civil Procedure 15(a) (Amendments before Trial) or Federal Rule 12 of Civil Procedure 16(b) (Modifying a Case Schedule). Rule 15 generally governs when parties Northern District of California United States District Court 13 may amend the pleadings. If a plaintiff has already amended the pleadings, he may amend again 14 "only by leave of court or by written consent of the adverse party." Fed. R. Civ. P. 15(a)(2). Rule 15 16, in turn, governs the Court's pretrial conferences and scheduling orders. If a plaintiff's 16 proposed amendment would alter the scheduling order, he may amend "only for good cause and 17 with the judge's consent." Fed. R. Civ. P. 16(b)(4); El-Hakem v. BJY Inc., 415 F.3d 1068, 1077 18 (9th Cir. 2005) ("A pretrial order controls the subsequent course of the action unless modified 19 upon a showing of good cause."). 20 Plaintiff argues that because the Court's scheduling order, Dkt. No. 65, did not include a 21 deadline by which Plaintiff had to amend his complaint, Rule 15 should apply. Although the 22 scheduling order is silent as to the date to amend the pleadings, it does include deadlines for the 23 close of discovery and filing dispositive motions. Id. It also sets dates for the final pretrial 24 conference and the 10-day jury trial. Id. Should the Court grant leave to file a third amended 25 complaint, it would at the very least have to modify the scheduling order to accommodate further 26 discovery and dispositive motions for both Fulton and Harkness as those deadlines have passed. 27 Cf. Taylor v. Shippers Transp. Express Inc., No. CV1302092BROPLAX, 2014 WL 12561079, at 28 *2 (C.D. Cal. Apr. 18, 2014) (acknowledging the need to modify a scheduling order to provide 3 1 more time for discovery, dispositive motions, and even trial, where plaintiffs sought to add a new 2 defendant). Plaintiff fails to explain why his request to add a new defendant and additional 3 allegations would not alter these dates. Nevertheless, the Court need not decide the standard 4 conclusively because it finds that amendment is unwarranted even under Rule 15's more liberal 5 standard. 6 B. Rule 15 7 Although leave to amend "shall be freely given when justice so requires," under Rule 15 8 the Court must evaluate several factors to determine whether amendment is proper: (1) bad faith; 9 (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) previous 10 amendments. Foman v. Davis, 371 U.S. 178, 182 (1962). "Absent prejudice, or a strong showing 11 of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of 12 granting leave to amend." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. Northern District of California United States District Court 13 2003). Consideration of these factors illustrates that amendment at this late date is not proper. 14 1. Undue Delay & Prejudice 15 The Court finds that Plaintiff unduly delayed by waiting until April 21, 2017, to move to 16 amend the complaint for a third time. See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th 17 Cir. 1990). Fact discovery closed over four months ago on December 30, 2016, and expert 18 discovery closed three months ago on February 17, 2017. The pretrial conference is in less than 19 three weeks on June 6, 2017. Trial is set to begin in five weeks on June 26, 2017. The Court finds 20 that it would unduly prejudice Defendants to permit Plaintiff to amend the second amended 21 complaint at this late stage of the proceedings. 22 The Court notes that Plaintiff's explanation for the delay is unpersuasive. Plaintiff's 23 counsel states that she only learned of Fulton's involvement during Defendant Badgley's 24 deposition on January 5, 2017. See Dkt. No. 104 at 4. And Plaintiff's counsel did not depose 25 Harkness until January 6, 2017. See Dkt. No. 102-1, Ex. A.2 Putting aside the choice to depose 26 27 2 Plaintiff's counsel cites "scheduling difficulties" as the reason why these depositions were held 28 after the discovery cut-off date, although no stipulation or request to extend the discovery cut-off was ever filed with the Court. See Dkt. No. 104-1 ¶ 5. 4 1 these Defendants so late, Plaintiff's counsel then waited three months after uncovering Fulton and 2 Harkness' involvement, and almost a month after the deadline to file motions for summary 3 judgment, to file the motion for leave to amend. Counsel blames Defendants for not responding 4 immediately to her inquiries. See Dkt. No. 104 at 5. But counsel notably fails to identify the first 5 date she reached out to defense counsel about Fulton and Harkness. See Dkt. No. 104-1 ¶ 8. 6 Instead she points to a single phone conversation with defense counsel on March 3, 2017. Id. ¶ 9. 7 Counsel says she did not follow up with defense counsel again until April 20, 2017, well after 8 Defendants filed their motions for summary judgment. Id. Plaintiff's counsel offers no further 9 explanation for her delay in filing a motion for leave to amend, other than obliquely listing the 10 other case-related tasks she accomplished (e.g., attending a settlement conference and opposing 11 motions for summary judgment). Id. at 4–5. If the case schedule was compressed or otherwise 12 exacting, it was nevertheless a schedule to which Plaintiff stipulated. See Dkt. No. 64.3 Northern District of California United States District Court 13 2. Futility 14 Permitting Plaintiff to add a Fourth Amendment violation for excessive use of force 15 against Fulton and Harkness would also be futile because both would be entitled to qualified 16 immunity. A motion for leave to amend is futile if it can be defeated on a motion for summary 17 judgment. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir. 1986). 18 Qualified immunity "gives government officials breathing room to make reasonable but 19 mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate 20 the law." City & Cty. of San Francisco, Calif. v. Sheehan, — U.S. —, 135 S. Ct. 1765, 1774 21 (2015) (quotation omitted). As part of this analysis, the Court must consider whether (1) the 22 officer's conduct violated a constitutional right and (2) that right was clearly established at the 23 time of the incident. Pearson v. Callahan, 555 U.S. 223, 232 (2009). "An officer cannot be said 24 to have violated a clearly established right unless the right's contours were sufficiently definite 25 3 26 The parties also were on clear notice as early as the hearing held on July 19, 2016 that the discovery cut-off date would be in December. The Court directed the parties to meet and confer 27 and file a stipulated case schedule with a discovery cut-off date at the end of December 2016 and a trial date in May 2017. See Dkt. No. 57. For reasons unclear to the Court, the parties waited 28 several additional months to file a stipulated scheduling order, but were free to engage in discovery in the interim. 5 1 that any reasonable official in his shoes would have understood that he was violating it, meaning 2 that existing precedent. . . placed the statutory or constitutional question beyond debate." 3 When determining whether the force used to effect a particular seizure is reasonable under 4 the Fourth Amendment, the Court must evaluate the "facts and circumstances" of the particular 5 case. C.B. v. Sonora, 769 F.3d 1005, 1029 (9th Cir. 2014). The Court judges the "reasonableness 6 of the use of force from the perspective of a reasonable officer at the scene." Sandoval v. Las 7 Vegas Metropolitan Police Dept., 756 F.3d 1154, 1166 (9th Cir. 2014). For purposes of the 8 qualified immunity analysis, the Court need not resolve the constitutionality of Fulton and 9 Harkness' use of force. Rather, the Court must determine whether, based on the facts known to 10 them at the time, any reasonable officer would have been on notice that the amount of force they 11 used was unlawful under clearly established law. The Court considers the state of the law at the 12 time of the alleged violation, as well as the information possessed by the officers at the time of Northern District of California United States District Court 13 search and the officers' actions viewed in the light most favorable to Plaintiff. Tolan v. Cotton, 14 134 S. Ct. 1861, 1866–68 (2014). 15 According to Plaintiff, both Fulton and Harkness were armed when they entered Plaintiff's 16 residence to execute the search warrant. In response to Plaintiff questioning why the officers were 17 at his house, Fulton pointed a gun at Plaintiff's stomach and said that was "top secret 18 information." Dkt. No. 99 at 2–3; see also Dkt. No. 84 ¶ 20. Humboldt County Sheriff's 19 Department Lieutenant Hanson then handcuffed Plaintiff with his hands behind his back and 20 ordered Plaintiff to sit down. Dkt. No. 94-7 ¶ 4; Dkt. No. 84 ¶¶ 21, 24. While Plaintiff was 21 handcuffed and attempting to comply, Harkness pointed a gun at Plaintiff's chest. Dkt. No. 84 22 ¶ 24. Plaintiff sat down immediately in response. Id. ¶¶ 24–25. 23 Plaintiff acknowledges, however, that the officers executed the search warrant knowing 24 Plaintiff had weapons in his home and knowing that the warrant was to search for drugs. Dkt. No. 25 77-4 at BNE-0073. And Fulton and Harkness had their guns drawn during the initial entry into the 26 house, when there were other occupants in the house whom the officers had not yet detained. See 27 Dkt. No. 84 ¶¶ 25–28. Plaintiff's roommate, who was standing behind a glass door next to 28 Plaintiff, failed to comply with the officers' orders to open the door. Dkt. No. 77-16 ¶ 4. The 6 1 officers did not know if the roommate was armed or alone in that room. Id. At least one officer 2 was concerned that he might be arming himself. Id. 3 In short, these circumstances were "tense, uncertain, and rapidly evolving," and Fulton and 4 Harkness had to make "split-second judgments" about the amount of force to use during their 5 initial entry into the home. See Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001) 6 (quotation omitted). Plaintiff cites no authority that Fulton and Harkness' conduct violated a 7 clearly established constitutional right in light of these undisputed circumstances. Plaintiff's 8 reliance on Robinson v. Solano Cty., 278 F.3d 1007, 1014 (9th Cir. 2002), is misplaced. There, 9 police officers pointed guns at the plaintiff's head, after a neighbor called and said a man had shot 10 two dogs. Id. at 1010. Plaintiff had walked from his front door toward police officers who were 11 on the street outside his property. Id. He did so calmly and did not have a visible weapon. Id. In 12 finding that the officers acted unreasonably, the Ninth Circuit pointed out that "the crime under Northern District of California United States District Court 13 investigation was at most a misdemeanor; the suspect was apparently unarmed and approaching 14 the officers in a peaceful way. There were no dangerous or exigent circumstances apparent at the 15 time of the detention, and the officers outnumbered the plaintiff." Id. 16 The same is not true here. The officers were executing a search warrant in a house with an 17 unknown number of occupants; at least one other occupant did not comply with officers' orders; 18 and Plaintiff had at least two guns registered to him. The Supreme Court has explicitly 19 acknowledged the danger in executing a warrant to search for drugs because it "may give rise to 20 sudden violence or frantic efforts to conceal or destroy evidence." Michigan v. Summers, 452 U.S. 21 692, 702–03 (1981). Because of this danger, the Supreme Court has concluded under similar 22 circumstances that entering with guns drawn and holding occupants temporarily at gunpoint while 23 executing a search warrant is not excessive force. Los Angeles Cty., California v. Rettele, 550 24 U.S. 609, 611 (2007). Accordingly, a reasonable officer would not be on notice that having guns 25 drawn, and even pointing them in Plaintiff's direction, was unlawful under the circumstances of 26 this case. 27 To the extent Plaintiff also seeks to add an additional § 1983 cause of action against Fulton 28 for unreasonable search and seizure, that amendment would be similarly futile for the reasons laid 7 1 out in the Court's order for partial summary judgment. See Dkt. No. 106 at 13–16 (finding the 2 officers who executed the search warrant were entitled to qualified immunity). The Court further 3 notes that it has already declined to exercise supplemental jurisdiction over the remaining state law 4 claims, so adding assault claims against Fulton and Harkness would be futile as well. Id. at 21–22. 5 III. CONCLUSION 6 The Court accordingly DENIES the motion for leave to amend the complaint. 7 IT IS SO ORDERED. 8 Dated: 5/19/2017 9 10 11 HAYWOOD S. GILLIAM, JR. United States District Judge 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8