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Andrews v. Jung

United States District Court, Ninth Circuit

August 6, 2013

OFFICER R. JUNG, et al., Defendants.


LAUREL BEELER, Magistrate Judge.


Plaintiff Bryan Andrews, who now is representing himself, sues three named Berkeley police officers and Doe officers 1 through 10, claiming that they unlawfully arrested and detained him, and did so with excessive force, in violation of 42 U.S.C. § 1983 and the United States Constitution. See First Amended Complaint ("FAC"), ECF No. 20.[1] The original complaint, which was timely filed under the two-year statute of limitations that applies to section 1983 claims, contained a similar section 1983 claim and identical fact allegations, but it named only Doe officers (and not named officers). See Complaint, ECF No. 1. The named officers now move for judgment on the pleadings on the ground that the FAC, which was filed more than two years after the arrest, does not relate back because Plaintiff should have substituted them in as defendants in the original complaint instead of filing a new complaint. See Motion, ECF No. 38 at 2.

For the reasons stated below, the court DENIES the officers' motion.[2]



On September 2, 2012 at approximately 10 p.m., Mr. Andrews was crossing Durant Street in Berkeley, California. FAC, ECF No. 20, ¶¶ 12-14. He was headed to a restaurant named La Burritta to pick up some food. Id. ¶ 13. As he was crossing the street, a Berkeley Police Department patrol car pulled up. Id. ¶ 14. A Berkeley Police officer got out of the patrol car and ran toward Mr. Andrews. Id. Mr. Andrews stooped down with his hands behind his back to allow officers to easily handcuff him. Id. ¶ 15. Several officers handcuffed and hog-tied him, and approximately 11 officers kicked and hit him at once. Id. ¶ 16. An officer repeatedly placed a metal object in Mr. Andrews's mouth and yelled, "Stand clear, the projectile is going to cause blood spatter." Id. ¶ 17.

Fearing for his life, Mr. Andrews began to yell for help. Id. ¶ 18. Someone put a bag over his head, muffling his cries. Id. ¶ 18. While he was hog-tied, the police officers cut off Mr. Andrews's clothing. Id. ¶ 19. They carried Mr. Andrews to the patrol car and repeatedly slammed his body against the door. Id. The police officers' use of force caused bruising and lacerations to Mr. Andrews's body. Id. ¶ 23. Mr. Andrews was taken to Alta Bates Hospital because of the injuries he sustained when the police officers kneed and hit him with their fists in his "back and rib area." Id. ¶ 20. Later, he was transferred by ambulance to Kaiser Hospital in Oakland. Id. ¶ 21. Mr. Andrews alleges that he suffered physical and emotional damage and "has remaining anxiety and fear generated by this incident." Id. ¶ 24.


On September 4, 2012, Mr. Andrews, who then was represented, filed the original complaint against the Berkeley Police Department, the City of Berkeley, Michael Meehan "in his capacity as Chief for the City of Berkeley" and "DOES 1-100, inclusive; individually and in their capacities as OFFICERS for the CITY OF BERKELEY."[3] Complaint, ECF No. 1 at 1. The original complaint alleged ten claims, all against "Defendants and DOES." See id. at 4-13. The first three claims alleged constitutional violations under 42 U.S.C. § 1983 (direct deprivation of rights for claim one and deliberative indifference and Monell theories for claims two and three) and the remaining claims four through ten alleged assault and battery, false arrest and imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and violations of California Civil Code §§ 51.7 and 52.1. Id. On October 24, 2012, the parties filed a stipulation and proposed order to dismiss claims four through ten on the ground that Plaintiff had not filed a pre-lawsuit tort claim with the City of Berkeley, see Stipulation and Proposed Order, ECF No. 5, which meant that the claims are barred under the California Tort Claims Act, see Cal. Government Code §§ 905 and 945.4.

The case then suffered some procedural delays apparently in part due to Plaintiff's counsel's intent to withdraw. See 12/20/12 Defendants' Case Management Conference Statement, ECF No. 11 at 1. That same case management statement reflects the parties' discussions that (1) the complaint needed to be amended to drop the tort claims and to amend other defects, (2) Defendants' counsel was prepared to file a 12(b)(6) motion to dismiss, and (3) Plaintiff's counsel had agreed to amend instead. Id.; accord 1/24/13 Defendants' Case Management Conference Statement, ECF No. 12 at 2. Eventually, after trying to obtain a joint case management conference statement, the court held a case management conference on February 21, 2013, and only Defendants' counsel appeared. See 2/21/13 Minute Order, ECF No. 16. At the hearing, the court discussed how the stipulation to dismiss the claims was procedurally irregular. See id; see also 3/6/13 Order, ECF No. 19 (denying the stipulation to dismiss the claims and holding that while a plaintiff may dismiss an action voluntarily before an answer, the correct procedure for dismissing individual claims in a multi-claim complaint is to seek leave to file an amended complaint) ( citing Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1392 (9th Cir. 1988), and Hells Canyon Preservation Council v. United States Forest Serv., 403 F.3d 683, 688-90 (9th Cir. 2005)). The court gave Defendants - who had not answered the complaint (presumably due to all the difficulties with Plaintiff's counsel) - leave to file a motion to dismiss, which ultimately was with Plaintiff's counsel's agreement. See 2/21/13 Minute Order. That cured any issue regarding Defendants' failure to timely answer or move to dismiss the FAC.

On March 1, 2013, Defendants moved to dismiss for failure to state a claim and to strike superfluous allegations in the complaint on the following grounds: (1) the Chief and the City were improper defendants under claim one because they can be liable only under a Monell theory; (2) claims one through three contained improper allegations beyond the scope of the Fourth Amendment claim; (3) claim three duplicated claim two; and (4) the seven state claims were tort claims that were barred under Government Code sections 905 and 945.4 for failure to file a pre-lawsuit claim. Motion, ECF No. 18. On March 7, 2013, as a matter of right, see Fed.R.Civ.P. 15(a)(1) and Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995), Mr. Andrews filed the FAC. See FAC, ECF No. 20. The factual allegations in the FAC are identical to those in the original complaint. Compare FAC, ¶¶ 12-25, with Compl., ¶¶ 11-24. The FAC alleges only one section 1983 claim for the allegedly unlawful arrest, detention, and excessive force, and it names only three police officers and Doe officers 1 through 10. Id. ¶ 29. Thus, the FAC essentially fixed the prior complaint to conform to the parties' prior stipulation and Defendants' other challenges to the original complaint. The officers filed their answer to the FAC on March 28, 2013. Answer, ECF No. 23.

On April 18, 2013, the court granted Mr. Andrews' counsel's unopposed motion to withdraw. See ECF No. 26. Mr. Andrews now represents himself. On July 8, 2013, Defendants moved for judgment on the pleadings. See ECF ...

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