United States District Court, S.D. Alabama, Southern Division
CARLOS FERNANDO REIXAC MUREY, As Administrator for the Estate of Carlos Lens Fernandez, a/k/a Carlos Lens, Plaintiff,
THE CITY OF CHICKASAW, AL, et al., Defendants.
K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's motion to amend
the complaint and proposed first amended complaint (Doc. 31),
Defendants' Opposition (Doc. 36), Plaintiff's Reply
and revised proposed first amended complaint (Doc. 38, Doc.
38-1); Defendants' Objection (Doc. 40) and
Plaintiff's Response with re-revised proposed first
amended complaint (Doc. 41, Doc. 41-1).
26, 2018, Plaintiff Carlos Fernando Reixac Murey
(administrator for the Estate of Carlos Lens Fernandez -
Carlos Lens) (Plaintiff) initiated this action in the Circuit
Court of Mobile County, Alabama, alleging Fourteenth
Amendment claims and an Alabama wrongful death claim
(Ala. Code § 6-5-410) against
Defendants City of Chickasaw, Alabama, Michael E. Reynolds
(former Police Chief), and Cynthia Robinson (Police Officer).
(Doc. 2-1 at 5-17). As alleged, the case stems from the May
27, 2016 actions/omissions of Defendants while Carlos Lens
(now deceased) was incarcerated in the Chickasaw City Jail.
(Id.) Plaintiff asserts four (4) counts: Count I -
Fourteenth Amendment violations against all of the individual
defendants; Count II -Fourteenth Amendment violations against
the City of Chickasaw, Alabama; Count III - Fourteenth
Amendment violations against individual defendant Reynolds;
and Count IV - an Alabama wrongful death claim against all of
the defendants. (Id.)
15, 2018, Defendants removed the case to this Court on the
basis of federal question subject matter jurisdiction. (Doc.
1). On July 6, 2018, Defendants filed their answer, asserting
a number of affirmative defenses. (Doc. 6).
December 3, 2018, Plaintiff moved to amend the complaint to
-- among other things --add Section 1983 claims against
proposed individual defendants Robert Wenzinger and
Michael Reynolds, and the City of Chickasaw, AL. (Doc. 31).
As grounds, Plaintiff contends that it took 28 months to
obtain videos/other evidence related to Lens' death
(obtained October 1, 2018) and as such, when the complaint
was filed, Plaintiff lacked knowledge of what occurred in the
Chickasaw City Jail on May 26, 2016. (Doc. 31 at 1-2).
Plaintiff "now has a clear picture of the events"
and so seeks to amend the complaint "to fairly and
accurately state what happened in the…Jail and
why…Lens died in custody." (Id. at 2).
In opposition, Defendants contend that the Plaintiff's
motion should be denied due to futility as the applicable
statute of limitations bars amendment. (Doc. 36). In
response, Plaintiff withdrew the request to add Wenzinger but
did not otherwise respond to Defendant's Section 1983
statute of limitations arguments. (Doc. 38). Instead,
Plaintiff submitted a revised proposed first amended
complaint. (Doc. 38-1).
January 25, 2019, the Court issued the following order:
First, fictitious party practice is not generally permitted
in federal courts…. Plaintiff's request to amend
the complaint to remove all of the fictitious party
allegations/claims, etc. is GRANTED (as such
would otherwise be sua sponte stricken as a matter
Second…For Count I, Plaintiff has mooted
Defendants' Section 1983 statute of limitations
contentions for Wenzinger…by conceding that (former
fictitious defendant) Wenzinger cannot be added as a party.
Instead, Plaintiff now seeks to assert a Section 1983 claim
against current defendant Robinson as the new Count I -- to
which the fictitious party relation back doctrine does not
apply as she was named in the original complaint.
Specifically, Plaintiff seeks to: "Change Count I from
Fourteenth Amendment Violations against all Defendants to a
§1983 claim against Cynthia Burt and add additional
allegations and details" and to "[a]dd an
individual and specific §1983 claim against Cynthia
Burt[.]" This means Plaintiff is dropping any claims in
Count I against any other defendants and is limiting Count I
to a Section 1983 claim against Robinson (Burt). Concerning
Count II, Plaintiff seeks to change this from
"Fourteenth Amendment Violations against the City of
Chickasaw to Fourteenth Amendment claims
against…Reynolds and add additional allegations and
details[.]" This means that the Plaintiff is dropping
any 14th Amendment claims in Count II against the
City of Chickasaw and is limiting Count II to a
14thAmendment claim against Reynolds. Regarding
Count III, Plaintiff seeks to change this from
"Fourteenth Amendment Violations against…Reynolds
to Fourteenth Amendment claims against the City of Chickasaw
and add additional allegations and details[.]" This
means that the Plaintiff is dropping any 14th
Amendment claims in Count III against Reynolds and is
limiting Count III to a 14th Amendment claim
against the City of Chickasaw. As for Count IV, the Alabama
wrongful death claim, Plaintiff seeks to
"[e]liminate…the City of Chickasaw from the
Wrongful Death claim and add additional allegations and
details[.]" This means that the Plaintiff is dropping
the Alabama wrongful death claims in Count IV against all
defendants except the City of Chickasaw. Upon
consideration, these new proposed substantive
changes to the counts prompts the opportunity for a
response from the Defendants.
Plaintiff seeks additional (less substantive) proposed
• Change Defendant C. Robinson's name in the
Complaint to reflect the name she currently uses, Cynthia
• Add citations and detail to Jurisdiction and Venue
• Delete Agency section and respondeat superior
• Revise Parties section to reflect Cynthia Burt's