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Dionne Smith-Downs, As Successor and v. City of Stockton

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 26, 2011

DIONNE SMITH-DOWNS, AS SUCCESSOR AND INTEREST TO DECEDENT JAMES EARL RIVERA, JR., PLAINTIFF,
v.
CITY OF STOCKTON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiff Dionne Smith-Downs ("Plaintiff") seeks redress from Defendants San Joaquin County, the City of Stockton, and individually named police officers Eric Azarvant, Gregory Dunn, Deputy Sheriff John Nesbitt, Blair Ulring, and Sheriff Steve Moore (collectively, "Defendants") regarding a fatal incident between Defendants and Plaintiff's son, sixteen-year-old James Rivera ("Decedent").

Presently before the Court is Defendants' Motion to Dismiss Plaintiff's First Amended Complaint for failure to state a claim upon which relief may be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1

On July 22, 2010, Decedent was pursued by Stockton police after being observed driving a suspected-stolen van through a residential neighborhood. During the pursuit, several police cars deliberately struck the van while Decedent was inside, which caused Decedent to lose control of the van and crash into a wall. At some subsequent point, officers repeatedly discharged their firearms toward Decedent, who died as a result of the gunshot wounds he sustained. The officers were observed laughing and "high-fiving" each other after the shooting.

Plaintiff alleges violations of federal law and requests relief accordingly. However, as a threshold matter, Defendants, in their Motion to Dismiss, argue that Plaintiff lacks standing to bring suit because she has failed to comply with California law.

California Code of Civil Procedure § 377.32 states that one who "seeks to commence an action or proceeding...as the decedent's successor in interest under the article, shall execute and file an affidavit or a declaration under penalty of perjury" that confirms decedent's personal information, the facts of their death, and other information confirming that the plaintiff is the proper successor to decedent's interests.

A certified copy of the decedent's death certificate is required to also be attached to the affidavit or declaration. Id.

It is clear in this circuit that standing "is a threshold issue that precedes consideration of any claim on the merits." Cotton v. City of Eureka, 2010 WL 5154945 at *3 (N.D. Cal. 2010), citing Moreland v. City of Las Vegas, 159 F.3d 365, 369 (9th Cir. 1998). Any party who seeks to "bring a survival action bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets that state's requirements for bringing [it]." Moreland, 159 F.3d at 369.

The Court is not in receipt of any affidavit or declaration from Plaintiff that complies with California Civil Code § 377.32, and the docket is similarly void of any documentation or proof of Plaintiff's valid status as Decedent's successor in interest. Since standing is a threshold matter, the Court cannot move forward on the case's merits.*fn2

Therefore, Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 9) is GRANTED with leave to amend. Plaintiff has not demonstrated any bad faith or other malicious conduct, and therefore may file an amended complaint not later than twenty (20) days after the date this Memorandum and Order is filed electronically.

If no amended complaint is filed within said twenty (20)-day period, without further notice, Plaintiff's claims will be dismissed without leave to amend.

IT IS SO ORDERED.


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