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Sandra andre-Gollihar v. County of San Joaquin

January 21, 2011

SANDRA ANDRE-GOLLIHAR, PLAINTIFF,
v.
COUNTY OF SAN JOAQUIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court*fn1 is a motion to dismiss plaintiff's First Amended Complaint filed by defendant County of San Joaquin Sheriff's Office ("Sheriff's Office").*fn2 (Dkt. No. 22.) The court heard this matter on its law and motion calendar on January 20, 2011. (Dkt. No. 33.) Attorney Jason R. Morrish appeared on behalf of the Sheriff's Office. Plaintiff, who is currently proceeding without counsel, appeared on her own behalf.

The undersigned has considered the parties' briefs, oral arguments, and the record in this case and, for the reasons stated below, grants defendant's motion to dismiss without prejudice and provides plaintiff leave to file a second amended complaint within 60 days of the date of entry of this order. Notably, plaintiff has represented to the court that an attorney has agreed to represent plaintiff if plaintiff is granted leave to further amend her complaint.*fn3 As the undersigned stated at the hearing, irrespective of whether plaintiff successfully retains counsel, plaintiff will not be granted more than the allotted 60 days to file her second amended complaint, and this opportunity to file a second amended complaint is plaintiff's final opportunity to amend.

I. BACKGROUND

A. Plaintiff's First Amended Complaint

Plaintiff's Amended Complaint & Claim, referred to herein as the "First Amended Complaint," is the operative complaint in this case. (Dkt. No. 18.) Plaintiff alleges therein that defendants are liable for the death of her son, Casey Gollihar, who, on January 21, 2008, was allegedly shot and killed by defendant Robert Semillo, a Deputy Sheriff with the Sheriff's Office. (See First Am. Compl. at 2-3.) In short, the First Amended Complaint alleges what can fairly be construed as claims for excessive force under 42 U.S.C. § 1983 and wrongful death under California state law.*fn4 (See id. at 2 (alleging that "Casey Gollihar was shot with excessive force and ended in wrongful death").) Plaintiff seeks damages in the amount of "10 million American Dollars."*fn5 (Id. at 3.)

More specifically, plaintiff alleges that Casey Gollihar ("Mr. Gollihar") was released on parole from Avenal state prison in the year 2007, and that defendant Jeffrey Carter was Mr. Gollihar's parole agent. (First Am. Compl. at 2.) It is alleged that Carter would visit plaintiff's home each month to interview and drug test Mr. Gollihar. (Id.) Plaintiff further alleges that "[a]fter approximately one year," Carter informed plaintiff and Mr. Gollihar that: (1) Mr. Gollihar's parole would end effective August 1, 2007; (2) Mr. Gollihar would no longer be required to report for monthly visits or drug tests after that date; and (3) it would take 60 to 90 days from August 1, 2007, for the "formal parole papers" to come in the mail. (Id.)

Plaintiff alleges that all was well until the middle part of December 2007. (First Am. Compl. at 2.) She alleges that in mid-December, Marty Brascino, who is alleged to be a supervisor in the parole department, contacted plaintiff and reported that Mr. Gollihar "had not been reporting once monthly to Mr. Carter, and that Casey Gollihar . . . was running from the law." (Id.) Plaintiff alleges that this statement was made despite the fact that Mr. Gollihar had been off of parole since approximately August 2007. (Id.) Plaintiff further alleges that she immediately called Mr. Gollihar and told him to come to her home. (Id.) Plaintiff alleges that Mr. Gollihar arrived at plaintiff's home and that, while both plaintiff and Mr. Gollihar were on the telephone, Brascino informed plaintiff and Mr. Gollihar that she was placing Mr. Gollihar back on parole and issuing a warrant for Mr. Gollihar's arrest, listing Mr. Gollihar as "armed and dangerous." (Id. at 2-3.) Plaintiff alleges that "[i]t was discussed that as far as he, Casey Gollihar, knew Mr. Carter had been his Parole Officer since he had gotten out of Avenal Prison and was not notified any differently to that date." (Id. at 2.) In response, Brascino allegedly stated, in a raised voice, that "she was putting Casey Gollihar back on Parole because she wanted to and it didn't matter what anyone else said." (Id.) When plaintiff asked Brascino whether Brascino had been in touch with Carter, Brascino allegedly informed plaintiff that Carter was on vacation in Hawaii and was unreachable. (Id. at 2-3.)

Plaintiff alleges that, thereafter, Mr. Gollihar "saw Mrs. Brascino in person," and that plaintiff and Mr. Gollihar tried to reach Carter several times via telephone, but without success. (First Am. Compl. at 3.) Plaintiff further alleges that around Christmas time of 2007, Brascino acted "outside the scope of her duties, and issued an arrest warrant [for Mr. Gollihar] as armed and dangerous and there was a reward." (Id. at 3, 4.)

With respect to the shooting, plaintiff alleges that on January 21, 2008, Mr. Gollihar was installing a clutch in a vehicle "with the help of John Berna, and Whitney, described as his wife." (First Am. Compl. at 3.) Plaintiff alleges that Mr. Gollihar "was shot with excessive force, several times, per the Corner's [sic] Report, after being handcuffed," and that "[t]here were other witnesses." (Id.) Although not expressly alleged, the First Amended Complaint may be fairly construed as alleging that defendant Semillo is the officer who unjustifiably shot and killed Mr. Gollihar. (See id. ("Complainants are informed and believe that the shooting of Decedent was unjustified and constituted the use Of [sic] excessive force and or [sic] was otherwise tortuous [sic] conduct by Robert Semillo . . . .").)

B. Procedural History

On November 30, 2009, plaintiff initiated this action by filing a "Complaint & Claim" ("complaint"), which named as defendants the County of San Joaquin ("County"), the Sheriff's Office, the State of California ("State"), and the California Department of Corrections and Rehabilitation ("CDCR"). (Dkt. No. 1.) Along with her complaint, plaintiff filed motions for leave to proceed in forma pauperis and to appoint counsel, the latter of which requested that plaintiff be permitted to add Casey Gollihar's minor children-Catherine Belle Gollihar, Anthony Joseph Gollihar, and Casey Gollihar-as pro se plaintiffs. (Dkt. Nos. 2, 3.)

The court granted plaintiff's application to proceed in forma pauperis. (Order and Findings & Recommendations at 2, Apr. 7, 2010, Dkt. No. 6.) It also screened plaintiff's complaint pursuant to 28 U.S.C. § 1915(e) and recommended that the State and CDCR be dismissed from this action as immune from suit. (Id. at 3-6.) The court ordered the United States Marshal ("Marshal") to serve the complaint on the County and the Sheriff's Office. (Id. at 3.) However, the court denied, without prejudice, plaintiff's motion to appoint counsel. (Id. at 8.) It further denied, without prejudice, plaintiff's request to add Casey Gollihar's minor children as plaintiffs in this action because the minors are not represented by counsel. (See id. at 6-8.) The district judge assigned to this action, United States District Judge Morrison C. England, Jr., adopted the proposed findings and recommendations and dismissed the State and CDCR from this action with prejudice. (Order, May 12, 2010, Dkt. No. 9.)

On August 6, 2010, the Sheriff's Office filed a motion to dismiss plaintiff's complaint. (Dkt. No. 14.) On September 28, 2010, plaintiff filed her First Amended Complaint, which the court, for good cause appearing, deemed timely filed as a matter of course. (Order Oct. 5, 2010, Dkt. No. 20.) The First Amended Complaint added defendants Brascino, Carter, and Semillo.

The court screened the First Amended Complaint pursuant to 28 U.S.C. § 1915(e). (Order, Oct. 5, 2010.) The court ordered the Marshal to serve the First Amended Complaint on the County and defendants Brascino, Carter, and Semillo, none of whom had yet appeared in the action.*fn6 (Id. at 5-6.) Despite the court's prior order, the First Amended Complaint names Casey Gollihar's minor children as plaintiffs. (First Am. Compl. at 1.) Accordingly, the court struck all references to the minor children from the First Amended Complaint. (Order, Oct. 5, 2010, at 4.) Moreover, despite the court's order dismissing the State and CDCR from this case with prejudice, the First Amended Complaint again names those parties as defendants. (First Am. Compl. at 1.) Accordingly, the court did not order service of the First Amended Complaint on the State or CDCR. (Order, Oct. 5, 2010, at 4.)

On October 22, 2010, the Sheriff's Office filed the pending motion to dismiss plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff initially failed to file a timely written opposition or statement of non-opposition to the Sheriff's Office's motion and, accordingly, the court continued the hearing and provided plaintiff with a final opportunity to file a written opposition or statement of non-opposition. (Order, Dec. 6, 2010, Dkt. No. 27.)

Plaintiff filed a timely written opposition. (Dkt. No. 29.) In part, and as indicated above, plaintiff's opposition states that "Plaintiff has been unable to retain counsel; however, she recently contacted an attorney who may represent her if this Court grants leave to amend." (Pl.'s Opp'n to Mot. to Dismiss at 3.) At the January 20, 2011 hearing, plaintiff identified this attorney as Francis Shehadah. Indeed, it appears that although not retained, this ...


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