The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 PAUL ANTHONY LYNCH, Case No.: 18-cv-01677-DMS (JLB)
12 Plaintiff,
REPORT AND
13 v. RECOMMENDATION RE:
PLAINTIFF’S MOTIONS TO JOIN
14 KEVIN BURNETT, et al.,
PARTIES
15 Defendants.
[ECF Nos. 58, 77]
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17 Before the Court are two motions, substantively duplicative, to join parties filed by
18 Plaintiff Paul Anthony Lynch (“Plaintiff”). (ECF Nos. 58, 77.) Defendant James Burnett
19 (“Defendant” or “Burnett”) opposes (ECF Nos. 61, 78). Pursuant to 28 U.S.C. § 636(b)
20 and Civil Local Rule 72.3 of the Local Rules of Practice for the United States District Court
21 for the Southern District of California, this Report and Recommendation is submitted to
22 United States District Judge Dana M. Sabraw. Upon review of the pleadings and for the
23 reasons discussed below, the Court respectfully RECOMMENDS that the motions to join
24 parties be GRANTED.1
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27 1 Although Plaintiff’s second motion was untimely, the relief requested therein is
identical. Accordingly, as the Court recommends granting the initial motion, for all
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1 I. BACKGROUND
2 A. Factual Background
3 Plaintiff is a pro se prisoner proceeding in forma pauperis (“IFP”) currently residing
4 at California State Prison, Sacramento. (ECF Nos. 1, 3.) The following facts are taken
5 from Plaintiff’s Second Amended Complaint (“SAC”) (ECF No. 27), which is the
6 operative complaint in this case:
7 On August 8, 2017, Matthew Botkin (“Botkin”), a Sergeant with the San Diego
8 Police Department (“SDPD”), arrived at Plaintiff’s private residence in San Diego,
9 California and requested that Plaintiff come outside and speak with him regarding a crime
10 that had happened down the street at a neighbor’s house. (Id. at 3.) Plaintiff asked if she
11 was a suspect and Botkin responded, “Yes, you are a suspect.” (Id.) Plaintiff responded
12 that she had not done anything wrong, she had not broken the law, and she was not willing
13 to speak with Botkin. (Id.) Botkin then stated, “Bring your faggot ass out of your house
14 or we will come in your house and drag your faggot ass out.” (Id.)
15 Plaintiff, a transgender male,2 stayed in her house as she feared for her life. (Id.) As
16 more SDPD officers arrived, Plaintiff became more fearful that the officers would kill her
17 or commit bodily injury to her person. (Id.) Burnett, an SDPD detective, also arrived at
18 Plaintiff’s house and started speaking to her. (Id.) During the conversation, Plaintiff heard
19 her back door open and saw Zachary Pfannenstiel (“Pfannenstiel”), an SDPD police
20 officer, along with other SDPD officers, running through her kitchen. (Id.)
21 As they came running through the kitchen, Plaintiff exited her home into her front
22 yard with her hands in the air. (Id.) As Plaintiff exited, Burnett was standing right there.
23 (Id.) Plaintiff yelled, “Burnett, don’t let them hurt me.” (Id. at 3–4.) Following Burnett’s
24 directions, Plaintiff walked quickly towards Burnett with her hands in the air. (Id. at 4.)
25 Burnett then grabbed Plaintiff’s right arm and held it, allowing Botkin to grab Plaintiff
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2 In her SAC, Plaintiff identifies herself as a transgender male. (SAC at 3.) Plaintiff
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1 from the back, pull her hair, yank her neck back, and place his thumb into her carotid artery.
2 (Id.) Botkin’s actions cut off Plaintiff’s blood supply to her brain, which knocked her out
3 while she was standing in an upright position and caused her to fall face forward onto the
4 hot pavement. (Id.) The fall caused Plaintiff injuries to her face, knees, and feet. (Id.)
5 Plaintiff was not a threat to the officers or Burnett. (Id.) She exited her home with
6 her hands in the air and surrendered to Burnett. (Id.) Plaintiff had no weapons and was
7 wearing a white blouse, panties, and a pair of open-toe high heels at the time she exited her
8 home. (Id.) Burnett had control of the situation, but he chose to hold Plaintiff while Botkin
9 grabbed her and placed a carotid hold. (Id.) Burnett failed to stop Botkin from “attempting
10 to kill” Plaintiff. (Id.) Instead, Burnett elected to allow Botkin “to attempt to kill [Plaintiff]
11 due to [her] gender association.” (Id.) Based on the foregoing, Plaintiff claims that Burnett
12 violated her Fourth Amendment right to be free from cruel and unusual punishment. (Id.
13 at 3–4.)
14 B. Procedural Background
15 Plaintiff commenced this civil rights action under 42 U.S.C. § 1983 on July 23, 2018,
16 against Kevin Burnett and John Doe 1, John Doe 2, and John Doe 3. (ECF No. 1.) On
17 November 2, 2018, Plaintiff filed a First Amended Complaint (“FAC”) against Botkin,
18 Pfannenstiel, Burnett,3 and Christian Sharp (“Sharp”). (ECF No. 5.) Defendants moved
19 to dismiss Plaintiff’s FAC on December 19, 2018. (ECF No. 12.)
20 On June 20, 2019, the undersigned issued a report and recommendation,
21 recommending that Defendants’ motion to dismiss be granted in part and denied in part.
22 (ECF No. 23.) On July 22, 2019, Judge Sabraw adopted the report and recommendation.
23 (ECF No. 25.) Following Judge Sabraw’s order, the only remaining claim in the FAC was
24 Plaintiff’s excessive force claim against Botkin arising under the Fourth Amendment.
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3 Plaintiff erroneously identified James Burnett as Kevin Burnett in her initial
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1 Plaintiff was given leave to file a Second Amended Complaint on or before
2 August 20, 2019. (Id. at 2.)
3 On August 5, 2019, Plaintiff filed her SAC against Burnett only, alleging a violation
4 of Plaintiff’s Fourth Amendment right to be free from cruel and unusual punishment. (ECF
5 No. 27.) Burnett moved to dismiss Plaintiff’s SAC on August 19, 2019. (ECF. No. 28.)
6 On October 29, 2019, the undersigned issued a report and recommendation, recommending
7 that Burnett’s motion to dismiss be denied. (ECF No. 32.) On February 3, 2020, Judge
8 Sabraw adopted the report and recommendation. (ECF No. 39.) Following Judge
9 Sabraw’s order, the only remaining claim in this case was Plaintiff’s Fourth Amendment
10 excessive force claim against Burnett.
11 On February 26, 2020, Plaintiff filed a motion to reconsider, arguing that she was
12 under the impression Botkin would remain a defendant in the case, despite his not being
13 mentioned in the SAC, because she listed his name as a defendant in her FAC. (See ECF
14 Nos. 38, 46, 47.) The same day, Judge Sabraw affirmed the adoption of the report and
15 recommendation, stating, “[i]t is well established in our circuit that an amended complaint
16 supersedes the original, the latter being treated thereafter as non-existent.” (ECF No. 47 at
17 2 (quoting Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015)).
18 Accordingly, the only claim presently before the Court in the operative SAC is Plaintiff’s
19 Fourth Amendment excessive force claim against Burnett.
20 The Court issued a scheduling order on February 21, 2020, requiring that any motion
21 to join other parties, to amend the pleadings, or to file additional pleadings be filed on or
22 before March 23, 2020. (ECF No. 44 at ¶ 4.) On March 23, 2020, Plaintiff constructively
23 filed a motion to join parties (ECF No. 58), by which Plaintiff seeks to amend her SAC to
24 add Botkin along with two previously unnamed parties: SDPD officers David Judge
25 (“Judge”) and Casey Moss (“Moss”). (Id.) On April 27, 2020, Defendants filed an
26 opposition to Plaintiff’s motion (ECF No. 61), and Plaintiff thereafter filed a reply (ECF
27 No. 69). Plaintiff filed a substantively duplicative motion to join parties on or about
28 August 14, 2020 (ECF No. 77), which Defendant similarly opposed (ECF No. 78).
1 II. LEGAL STANDARD
2 After a party has amended a pleading once as a matter of course, the Federal Rules
3 of Civil Procedure permit the party to further amend “only with the opposing party’s
4 written consent or the court’s leave.” Fed. R. Civ. P. 15(a); Eminence Capital, LLC v.
5 Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). Leave should be “freely give[n] . . .
6 when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied with
7 extreme liberality.” Eminence Capital, LLC, 316 F.3d at 1051 (internal quotation marks
8 and citations omitted). When considering whether to grant leave to amend, a district court
9 should consider the Foman factors, which include: “undue delay, the movant’s bad faith or
10 dilatory motive, repeated failure to cure deficiencies by amendments previously allowed,
11 undue prejudice to the opposing party, and futility.” Brown v. Stored Value Cards, Inc.,
12 953 F.3d 567, 574 (9th Cir. 2020) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
13 “Of the Foman factors, prejudice to the opposing party carries the most weight.” Id.
14 (citing Eminence Capital, LLC, 316 F.3d at 1052). “Prejudice is the touchstone of the
15 inquiry under rule 15(a).” Eminence Capital, LLC, 316 F.3d at 1052 (internal quotation
16 marks and citations omitted). “Absent prejudice, or a strong showing of any of the
17 remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting
18 leave to amend.” Id. (citation omitted). However, “[f]utility of amendment can, by itself,
19 justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845
20 (9th Cir. 1995).
21 District courts have broad discretion to deny leave to amend when the plaintiff has
22 previously amended the complaint. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th
23 Cir. 1990) (quoting Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.
24 1989)).
25 III. DISCUSSION
26 A. Plaintiff’s Initial Motion is Timely
27 As an initial matter, Defendant contends that Plaintiff failed to meet the
28 March 23, 2020 deadline established by the Court’s scheduling order to file a “motion to
1 join other parties, to amend the pleadings, or to file additional pleadings.” (See ECF Nos.
2 44 at ¶ 4; 61 at 5.) For the following reasons, the Court disagrees.
3 As Plaintiff is proceeding in this case as a pro se prisoner, the mailbox rule applies
4 to Plaintiff’s filings. See Douglas v. Noelle, 567 F.3d 1103, 1106–09 (9th Cir. 2009)
5 (extending the Houston mailbox rule to § 1983 suits filed by pro se prisoners, whereby
6 pro se prisoner court filings are deemed filed at the time the prisoner delivers it to prison
7 authorities for forwarding to the court clerk). Here, Plaintiff signed and dated the proof of
8 service for her initial motion on March 23, 2020 and provided a photocopy of the envelope
9 in which her motion was sent, also postmarked March 23, 2020. (See ECF No. 58 at 4, 6.)
10 That is sufficient to comply with the constructive filing rule of Houston. See Douglas, 567
11 F.3d at 1108–09. Accordingly, the Court finds that Plaintiff timely filed a motion to join
12 parties in compliance with the scheduling order. The Court will address this motion below.
13 B. Plaintiff’s Proposed Amendment
14 Plaintiff seeks leave to join Botkin and SDPD officers Judge and Moss to this case.
15 (ECF No. 58 at 1.) Although Plaintiff does not explicitly seek leave to file a Third
16 Amended Complaint, that is, for all practical purposes, what she is requesting in her
17 motion.4 Plaintiff seeks leave to add Botkin, Judge, and Moss to this case based on the
18 following allegations:
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On August 8, 2017, San Diego Police Sergeant Matthew Botkin attempted to
20 kill Plaintiff by placing Plaintiff [] in a carotid hold, cutting off her blood
21 supply to her brain which knocked her out unconscious while she was standing
up in a[n] “upright” position, causing her to fall face forward into the “hot
22 pavement” causing injuries to her face, knees, and feet.
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4 As such, pursuant to Civil Local Rule 15.1, Plaintiff was required to file a proposed
27 amended complaint with her motion. See CivLR 15.1(b). Plaintiff failed to do so.
However, Plaintiff has provided sufficient additional facts in her motion for the Court to
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1 Furthermore, San Diego Police Officer David Judge, utilized excessive force
on an “unconscious” transgender citizen who was not resisting by placing his
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left knee on [Plaintiff]’s back while she was unconscious from the brutal
3 attack of [] Botkin. Furthermore, San Diego Police Officer Casey Moss
utilized excessive force on an “unconscious” transgender citizen who was not
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resisting by using physical strength to apply pressure to the back of
5 [Plaintiff]’s calves while she was “unconscious,” from the brutal attack of
[Botkin].
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7 (ECF No. 58 at 2.)5
8 C. Analysis
9 1. Botkin
10 The Court finds it appropriate to grant Plaintiff leave to file a Third Amended
11 Complaint naming Botkin as a defendant. Botkin was clearly John Doe 1 in the initial
12 complaint6 and was subsequently named in the FAC. (See ECF Nos. 1, 5.) As such, there
13 is no prejudice to Defendant by adding Botkin back into this case. Defendant has been on
14 notice since the outset of this case that Botkin was an intended defendant, and any failure
15 to add him to the SAC was simply a pleading error by a pro se plaintiff and not for the
16 purpose of causing undue delay or done with a bad faith or dilatory motive.
17 Moreover, such an amendment would not be futile as this Court previously
18 determined that Plaintiff could plausibly state an excessive force claim against Botkin
19 based on the incident at issue in the SAC. (See ECF Nos. 23, 25.) For these reasons, the
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5 Plaintiff stated in her motion that she would be filing a separate complaint in a new
23 case naming Botkin, Judge, and Moss as defendants. (Id. at 3.) On March 10, 2020,
Plaintiff did so, but the complaint was dismissed pursuant to 28 U.S.C. § 1915A(b)(1)
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because it was duplicative of the present action. See Order Dismissing Civil Action
25 Pursuant to 28 U.S.C. § 1915A(b)(1), Lynch v. Botkin, et al., No. 20-cv-00460-MMA
(KSC) (S.D. Cal. April 2, 2020), ECF No. 6.
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6 A comparison of the initial complaint and the FAC indicates that Botkin was John
27 Doe 1 (although occasionally referred to as John Doe 2). (Compare ECF No. 1 with ECF
No. 5.) The comparison further indicates that Pfannenstiel was John Doe 2 and Sharp was
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1 Court RECOMMENDS that Plaintiff be given leave to file a Third Amended Complaint
2 adding Botkin back in as a defendant.
3 2. Moss and Judge
4 Defendant argues that Plaintiff should not be permitted to amend the SAC to add
5 Judge and Moss as defendants, as such claims are time-barred and, therefore, futile. (See
6 ECF No. 61 at 6–7.) The Court addresses Defendant’s argument below.
7 a. Legal Standard—Statute of Limitations
8 Section 1983 does not contain its own statute of limitations. Butler v. Nat’l Cmty.
9 Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). When, as here, a federal civil
10 rights statute does not include its own statute of limitations, federal courts borrow the forum
11 state’s limitations period for personal injury torts. Lukovsky v. City of San Francisco, 535
12 F.3d 1044, 1048 (9th Cir. 2008). Therefore, California’s two-year statute of limitations for
13 personal injury actions governs Plaintiff’s § 1983 claims. See Butler, 766 F.3d at 1198
14 (citing Cal. Civ. Proc. Code § 335.1).
15 When borrowing a state statute of limitations for a federal cause of action, federal
16 courts “borrow no more than necessary.” Sain v. City of Bend, 309 F.3d 1134, 1138 (9th
17 Cir. 2002) (quoting West v. Conrail, 481 U.S. 35, 39 (1987)). Accordingly, although
18 California law determines the length of the limitations period, federal law determines when
19 a § 1983 claim accrues. Lukovsky, 535 F.3d at 1048 (citing Olsen v. Idaho State Bd. of
20 Med., 363 F.3d 916, 926 (9th Cir. 2004)). “Accrual is the date on which the statute of
21 limitations begins to run; under federal law, a claim accrues ‘when the plaintiff knows or
22 has reason to know of the injury which is the basis of the action.’” Lukovsky, 535 F.3d at
23 1048 (quoting Olsen, 363 F.3d at 926).
24 The Ninth Circuit has interpreted the term injury “with some flexibility, and held
25 that a claim accrues not just when the plaintiff experiences the injury, but when the plaintiff
26 knew or in the exercise of reasonable diligence should have known of the injury and the
27 cause of that injury.” Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 581 (9th
28 Cir. 2012) (internal quotation marks and citations omitted). However, a claim “accrues
1 when the plaintiff learns of the ‘actual injury,’ . . . and not when the plaintiff suspects a
2 ‘legal wrong.’” Coppinger-Martin v. Solis, 627 F.3d 745, 749 (9th Cir. 2010) (citing
3 Lukovsky, 535 F.3d at 1049–51).
4 b. Analysis—Statute of Limitations
5 Here, the alleged injuries7 occurred on August 8, 2017, when Judge and Moss
6 allegedly “committed excessive force on an unarmed, no[n] resisting, unconscious
7 ‘transgender’ citizen.” (ECF Nos. 58 at 2; 69 at 2.) However, based on the information
8 before the Court, Plaintiff did not know or have reason to know of the injuries allegedly
9 inflicted by Judge or Moss prior to February 2020. (See ECF No. 69 at 3, 6.) Plaintiff
10 contends she was unconscious at the time of the alleged injuries. (ECF No. 58 at 2.)
11 Plaintiff further claims she had no knowledge of the injuries or their source—Judge and
12 Moss—until she received certain police reports regarding the incident through discovery
13 in February 2020. (ECF Nos. 58 at 2–3; 69 at 6.) Through these police reports, Plaintiff
14 learned of her actual injuries for the first time. (See id.) Prior to February 2020, Plaintiff
15 had no reason to know or suspect that, while unconscious, Judge and Moss violated
16 Plaintiff’s right to be free from excessive force. Had Plaintiff obtained the police reports
17 earlier regarding Judge and Moss, she claims she would have “named them in her
18 complaint” or her FAC, where Plaintiff identified John Doe 1, John Doe 2, and John Doe
19 3 as Botkin, Pfannenstiel, and Sharp, respectively, and corrected Burnett’s name from
20 Kevin to James. (ECF Nos. 5 at 2; 69 at 5.)
21 Based on the foregoing, the Court finds that Plaintiff has alleged facts that, taken as
22 true, support claims that arguably accrued in February 2020. Defendant cannot, at this
23 stage of the proceedings, establish those claim fall outside the statute of limitations.
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7 Plaintiff does not specify any physical injury caused by Judge or Moss. However,
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to establish a § 1983 excessive force claim, the injury itself need not be physical. See
27 Robinson v. Solano County, 278 F.3d 1007, 1014–15 (9th Cir. 2002) (holding that officers’
use of firearms at close range, pointed at unarmed misdemeanor suspect’s head, was
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1 || Because Plaintiff filed her motion to join Judge and Moss to this case on March 23, 2020,
2 over a month after her claims arguably accrued, Plaintiff's claims may be timely filed.
3 As Defendant advances no other arguments for why Judge and Moss should not be
4 || added to this case, the Court RECOMMENDS that Plaintiff be given leave to file a Third
5 || Amended Complaint adding Judge and Moss as defendants.
6 || IV. CONCLUSION
7 For the reasons discussed above, IT IS HEREBY RECOMMENDED that the
8 ||District Judge issue an Order: (1) adopting this Report and Recommendation;
9 GRANTING Plaintiff's Motions to Join Parties (ECF Nos. 58, 77); and (3) allowing
10 || Plaintiff to file a Third Amended Complaint adding Botkin, Judge, and Moss as defendants
11 || with Burnett.
12 IT IS ORDERED that no later than September 18, 2020, any party to this action
13 ||may file written objections with the Court and serve a copy on all parties. The document
14 || should be captioned “Objections to Report and Recommendation.”
15 IT IS FURTHER ORDERED that any reply to the objections shall be filed with
16 Court and served on all parties no later than October 2, 2020. The parties are advised
17 failure to file objections within the specified time may waive the right to raise those
18 || objections on appeal of the Court’s order. See Martinez v. Ylst, 951 F.2d 1153, 1156 (9th
19 || Cir. 1991).
20 IT IS SO ORDERED.
21 Dated: September 1, 2020
22 pu ldratt
n. Jill L. Burkhardt
23 ited States Magistrate Judge
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