1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Shane Badding, No. CV-20-08315-PCT-DWL (ESW)
10 Plaintiff, ORDER
11 v.
12 David Clouse, et al.,
13 Defendants. 14 15 In November 2020, Plaintiff, who is represented by counsel, initiated this action by 16 filing the complaint. (Doc. 1.) In March 2021, Plaintiff filed the First Amended Complaint 17 (“FAC”). (Doc. 14.) In a nutshell, the FAC asserts a § 1983 claim in Count One, a state- 18 law claim for assault in Count Two, and a state-law claim for negligence in Count Three. 19 (Id. ¶¶ 21-24.) Notably, although the FAC asserts each of these claims against three 20 different defendants—(1) Navajo County Sheriff David Clouse, (2) Navajo County Sheriff 21 Deputy Pendergast, and (3) Navajo County Sheriff Deputy Newman—only Sheriff Clouse 22 and Deputy Newman were timely served. (Doc. 7.) 23 On August 26, 2021, the Court issued an order that granted a motion to dismiss the 24 FAC filed by Sheriff Clouse and Deputy Newman. (Doc. 32.) As for Count One, the Court 25 concluded it was deficient because, inter alia, it “does not allege sufficient facts to establish 26 a violation of the First, Fifth, Ninth, or Fourteenth Amendments.” (Id. at 6-11.) As for 27 Count Two, the Court concluded it was deficient “for reasons similar to [Plaintiff’s] Fourth 28 Amendment claim in Count One. Plaintiff appears to allege that because he was ‘falsely 1 arrested,’ putting handcuffs on him necessarily resulted in an assault. However, Plaintiff 2 does not cite any authority suggesting that putting handcuffs on someone is an assault under 3 Arizona law. Nor has Plaintiff alleged that his detention/arrest was unsupported by 4 reasonable suspicion or probable cause.” (Id. at 11.) As for Count Three, the Court 5 concluded it was barred by Ryan v. Napier, 425 P.3d 230 (2018), because “[a]t bottom, that 6 claim accuses ‘Defendants’ of acting negligently by intentionally entering his home and by 7 intentionally handcuffing and detaining him, which is the very sort of negligence claim that 8 Ryan precludes.” (Id.) 9 In the August 26, 2021 order, the Court also found that Plaintiff’s claims against 10 Deputy Pendergast were subject to dismissal pursuant to the “similarly situated defendant” 11 doctrine, even though Deputy Pendergast had not (by virtue of the fact that he hadn’t been 12 served) joined in his co-defendants’ dismissal motion. (Id. at 11-12.) 13 Finally, even though Plaintiff hadn’t requested leave to amend in the event of 14 dismissal, the August 26, 2021 order granted such leave to Plaintiff sua sponte because “it 15 may be possible for Plaintiff to allege additional facts to cure some of the deficiencies 16 identified above.” (Id. at 12-13.) The order specified that any Second Amended Complaint 17 (“SAC”) would need to be filed within 14 days and stated that, to the extent Plaintiff wished 18 to name Deputy Pendergast as a defendant in the SAC, he would need to separately show 19 cause why Deputy Pendergast should not be dismissed pursuant to Rule 4(m) based on the 20 failure to timely serve him. (Id.) 21 On September 9, 2021, Plaintiff filed three documents. First, Plaintiff filed a 22 “motion to amend amended complaint” (Doc. 33), along with a redlined copy of his 23 proposed SAC (Doc. 33-1). In this motion, Plaintiff clarifies that “the requested 24 amendment is to remove Sheriff David Clouse as a defendant in this matter . . . [and] also 25 to retain and name Deputy Pendergast as a defendant in this matter.” (Doc. 33 at 3.) 26 Second, Plaintiff filed a motion to extend the time to serve Deputy Pendergast. (Doc. 34.) 27 In this motion, Plaintiff states that he made diligent efforts to serve Deputy Pendergast in 28 January 2021 and failed to pursue follow-up service efforts only because his counsel 1 thereafter became gravely ill and was hospitalized for several months. (Id. at 3.) Plaintiff 2 also attached evidence that Deputy Pendergast had been served in September 2021. (Doc. 3 34-1.) Third, Plaintiff filed a “motion to retain and include Navajo County Sheriff Deputy 4 Pendergast in the case and memorandum in support thereof,” which largely tracks the 5 arguments set forth in the other service-related motion. (Doc. 35.) 6 On September 14, 2021, all three defendants filed an opposition to Plaintiff’s 7 “motion to amend amended complaint.” (Doc. 36.) Defendants argue the motion should 8 be denied because, “[w]ith the exception of properly deleting Sheriff Clouse from the 9 litigation, the proposed [SAC] does nothing to cure the deficiencies that support the 10 dismissal of this case.” (Id. at 2.) Thus, Defendants argue that “the filing of the [SAC] 11 would be futile.” (Id.) 12 On September 23, 2021, Magistrate Judge Willett issued a report and 13 recommendation (“R&R”) addressing Plaintiff’s pending motions. (Doc. 37.) As for the 14 “motion to amend amended complaint,” the R&R states it should be denied because the 15 proposed SAC fails to cure the deficiencies identified in the August 26, 2021 order and is 16 thus futile. (Id. at 3.) And because the proposed SAC would be futile, the R&R states that 17 Plaintiff’s request for more time to serve Deputy Pendergast should be denied. (Id.) The 18 R&R concludes by advising the parties that they “have fourteen days from the date of 19 service of a copy of this recommendation within which to file specific written objections 20 with the Court” and “[f]ailure to file timely objections to the Magistrate Judge’s Report 21 and Recommendation may result in the acceptance of the Report and Recommendation by 22 the District Court without further review.” (Id.) 23 More than 14 days have elapsed since the issuance of the R&R and Plaintiff has not 24 filed any objections. For this reason alone, the Court adopts the R&R’s recommendations 25 and denies Plaintiff’s pending motions on that basis. See, e.g., Thomas v. Arn, 474 U.S. 26 140, 149-50 (1985) (“It does not appear that Congress intended to require district court 27 review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, 28 when neither party objects to those findings.”); Schmidt v. Johnstone, 263 F. Supp. 2d 1 1219, 1226 (D. Ariz. 2003) (“[N]o review is required of a magistrate judge’s report and 2 recommendation unless objections are filed.”). See also United States v. Reyna-Tapia, 328 3 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must review the magistrate judge’s 4 findings and recommendations de novo if objection is made, but not otherwise.”). 5 The Court further notes the procedural irregularity of the recent filings. Pursuant to 6 the August 26, 2021 order, Plaintiff wasn’t required to seek leave to file a SAC—he was 7 already granted such leave by the order. Thus, to the extent Plaintiff believed he could 8 allege additional facts that might cure the deficiencies identified in the August 26, 2021 9 order, he was free to do so by simply filing the SAC and lodging a redlined version 10 identifying how it differed from the FAC—no motion was required. (Doc. 32 at 13 11 [“Within 14 days of the issuance of this order, Plaintiff may file and serve a SAC. Plaintiff 12 shall, consistent with LRCiv 15.1(a), attach a redlined version of the pleading as an 13 exhibit.”].) Nevertheless, even if the Court were to treat the lodged document at Doc. 33- 14 1 as a filed SAC, dismissal of this action would be warranted. This is because the document 15 at Doc. 33-1 does not contain any new factual allegations. As a result, all three claims in 16 this document remain subject to dismissal for the reasons stated in the August 26, 2021 17 order.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Shane Badding, No. CV-20-08315-PCT-DWL (ESW)
10 Plaintiff, ORDER
11 v.
12 David Clouse, et al.,
13 Defendants. 14 15 In November 2020, Plaintiff, who is represented by counsel, initiated this action by 16 filing the complaint. (Doc. 1.) In March 2021, Plaintiff filed the First Amended Complaint 17 (“FAC”). (Doc. 14.) In a nutshell, the FAC asserts a § 1983 claim in Count One, a state- 18 law claim for assault in Count Two, and a state-law claim for negligence in Count Three. 19 (Id. ¶¶ 21-24.) Notably, although the FAC asserts each of these claims against three 20 different defendants—(1) Navajo County Sheriff David Clouse, (2) Navajo County Sheriff 21 Deputy Pendergast, and (3) Navajo County Sheriff Deputy Newman—only Sheriff Clouse 22 and Deputy Newman were timely served. (Doc. 7.) 23 On August 26, 2021, the Court issued an order that granted a motion to dismiss the 24 FAC filed by Sheriff Clouse and Deputy Newman. (Doc. 32.) As for Count One, the Court 25 concluded it was deficient because, inter alia, it “does not allege sufficient facts to establish 26 a violation of the First, Fifth, Ninth, or Fourteenth Amendments.” (Id. at 6-11.) As for 27 Count Two, the Court concluded it was deficient “for reasons similar to [Plaintiff’s] Fourth 28 Amendment claim in Count One. Plaintiff appears to allege that because he was ‘falsely 1 arrested,’ putting handcuffs on him necessarily resulted in an assault. However, Plaintiff 2 does not cite any authority suggesting that putting handcuffs on someone is an assault under 3 Arizona law. Nor has Plaintiff alleged that his detention/arrest was unsupported by 4 reasonable suspicion or probable cause.” (Id. at 11.) As for Count Three, the Court 5 concluded it was barred by Ryan v. Napier, 425 P.3d 230 (2018), because “[a]t bottom, that 6 claim accuses ‘Defendants’ of acting negligently by intentionally entering his home and by 7 intentionally handcuffing and detaining him, which is the very sort of negligence claim that 8 Ryan precludes.” (Id.) 9 In the August 26, 2021 order, the Court also found that Plaintiff’s claims against 10 Deputy Pendergast were subject to dismissal pursuant to the “similarly situated defendant” 11 doctrine, even though Deputy Pendergast had not (by virtue of the fact that he hadn’t been 12 served) joined in his co-defendants’ dismissal motion. (Id. at 11-12.) 13 Finally, even though Plaintiff hadn’t requested leave to amend in the event of 14 dismissal, the August 26, 2021 order granted such leave to Plaintiff sua sponte because “it 15 may be possible for Plaintiff to allege additional facts to cure some of the deficiencies 16 identified above.” (Id. at 12-13.) The order specified that any Second Amended Complaint 17 (“SAC”) would need to be filed within 14 days and stated that, to the extent Plaintiff wished 18 to name Deputy Pendergast as a defendant in the SAC, he would need to separately show 19 cause why Deputy Pendergast should not be dismissed pursuant to Rule 4(m) based on the 20 failure to timely serve him. (Id.) 21 On September 9, 2021, Plaintiff filed three documents. First, Plaintiff filed a 22 “motion to amend amended complaint” (Doc. 33), along with a redlined copy of his 23 proposed SAC (Doc. 33-1). In this motion, Plaintiff clarifies that “the requested 24 amendment is to remove Sheriff David Clouse as a defendant in this matter . . . [and] also 25 to retain and name Deputy Pendergast as a defendant in this matter.” (Doc. 33 at 3.) 26 Second, Plaintiff filed a motion to extend the time to serve Deputy Pendergast. (Doc. 34.) 27 In this motion, Plaintiff states that he made diligent efforts to serve Deputy Pendergast in 28 January 2021 and failed to pursue follow-up service efforts only because his counsel 1 thereafter became gravely ill and was hospitalized for several months. (Id. at 3.) Plaintiff 2 also attached evidence that Deputy Pendergast had been served in September 2021. (Doc. 3 34-1.) Third, Plaintiff filed a “motion to retain and include Navajo County Sheriff Deputy 4 Pendergast in the case and memorandum in support thereof,” which largely tracks the 5 arguments set forth in the other service-related motion. (Doc. 35.) 6 On September 14, 2021, all three defendants filed an opposition to Plaintiff’s 7 “motion to amend amended complaint.” (Doc. 36.) Defendants argue the motion should 8 be denied because, “[w]ith the exception of properly deleting Sheriff Clouse from the 9 litigation, the proposed [SAC] does nothing to cure the deficiencies that support the 10 dismissal of this case.” (Id. at 2.) Thus, Defendants argue that “the filing of the [SAC] 11 would be futile.” (Id.) 12 On September 23, 2021, Magistrate Judge Willett issued a report and 13 recommendation (“R&R”) addressing Plaintiff’s pending motions. (Doc. 37.) As for the 14 “motion to amend amended complaint,” the R&R states it should be denied because the 15 proposed SAC fails to cure the deficiencies identified in the August 26, 2021 order and is 16 thus futile. (Id. at 3.) And because the proposed SAC would be futile, the R&R states that 17 Plaintiff’s request for more time to serve Deputy Pendergast should be denied. (Id.) The 18 R&R concludes by advising the parties that they “have fourteen days from the date of 19 service of a copy of this recommendation within which to file specific written objections 20 with the Court” and “[f]ailure to file timely objections to the Magistrate Judge’s Report 21 and Recommendation may result in the acceptance of the Report and Recommendation by 22 the District Court without further review.” (Id.) 23 More than 14 days have elapsed since the issuance of the R&R and Plaintiff has not 24 filed any objections. For this reason alone, the Court adopts the R&R’s recommendations 25 and denies Plaintiff’s pending motions on that basis. See, e.g., Thomas v. Arn, 474 U.S. 26 140, 149-50 (1985) (“It does not appear that Congress intended to require district court 27 review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, 28 when neither party objects to those findings.”); Schmidt v. Johnstone, 263 F. Supp. 2d 1 1219, 1226 (D. Ariz. 2003) (“[N]o review is required of a magistrate judge’s report and 2 recommendation unless objections are filed.”). See also United States v. Reyna-Tapia, 328 3 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must review the magistrate judge’s 4 findings and recommendations de novo if objection is made, but not otherwise.”). 5 The Court further notes the procedural irregularity of the recent filings. Pursuant to 6 the August 26, 2021 order, Plaintiff wasn’t required to seek leave to file a SAC—he was 7 already granted such leave by the order. Thus, to the extent Plaintiff believed he could 8 allege additional facts that might cure the deficiencies identified in the August 26, 2021 9 order, he was free to do so by simply filing the SAC and lodging a redlined version 10 identifying how it differed from the FAC—no motion was required. (Doc. 32 at 13 11 [“Within 14 days of the issuance of this order, Plaintiff may file and serve a SAC. Plaintiff 12 shall, consistent with LRCiv 15.1(a), attach a redlined version of the pleading as an 13 exhibit.”].) Nevertheless, even if the Court were to treat the lodged document at Doc. 33- 14 1 as a filed SAC, dismissal of this action would be warranted. This is because the document 15 at Doc. 33-1 does not contain any new factual allegations. As a result, all three claims in 16 this document remain subject to dismissal for the reasons stated in the August 26, 2021 17 order. And because Plaintiff has now been given several chances to amend, there is no 18 need to offer yet another amendment opportunity before terminating this action. Cf. 19 Chodos v. W. Publishing Co., 292 F.3d 992, 1002 (9th Cir. 2002) (“[W]hen a district court 20 has already granted a plaintiff leave to amend, its discretion in deciding subsequent motions 21 to amend is ‘particularly broad.’”) (citation omitted). 22 … 23 … 24 … 25 … 26 … 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that: 3 (1) Plaintiff’s “motion to amend amended complaint” (Doc. 33) is denied. 4 (2) Plaintiffs “motion to extend time to serve Navajo County Sheriff Deputy 5 || Pendergast” (Doc. 34) is denied. 6 (3) Plaintiff’s “motion to retain and include Navajo County Sheriff Deputy Pendergast in the case” (Doc. 35) is denied. 8 (4) The R&R (Doc. 37) is adopted. 9 (5) To the extent the document lodged at Doc. 33-1 is considered the SAC, it is || dismissed without leave to amend. 11 (6) The Clerk of Court shall enter judgment accordingly and terminate this action. 13 Dated this 13th day of October, 2021. 14 15 Lm ee” 16 f t _o—— Dominic W, Lanza 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28
_5-