Murey v. The City of Chickasaw

          ORDER

          KRISTI K. DUBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This 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).

         I. Background

         On May 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.)

         On June 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).

         On 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).

         On 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 of course).

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 14^th Amendment claims in Count II against the City of Chickasaw and is limiting Count II to a 14^thAmendment 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 14^th Amendment claims in Count III against Reynolds and is limiting Count III to a 14^th 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.

         Third, Plaintiff seeks additional (less substantive) proposed amendments -----

• Change Defendant C. Robinson's name in the Complaint to reflect the name she currently uses, Cynthia Robinson Burt;

• Add citations and detail to Jurisdiction and Venue section;

• Delete Agency section and respondeat superior references;

• Revise Parties section to reflect Cynthia Burt's ...