Andrich v. Kostas
| Decision Date | 30 June 2020 |
| Docket Number | No. CV-19-02212-PHX-DWL,CV-19-02212-PHX-DWL |
| Citation | 470 F.Supp.3d 1048 |
| Parties | Louise ANDRICH, et al., Plaintiffs, v. Gus KOSTAS, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Diana Zeesman, Accident Fighters APC, Woodland Hills, CA, Kevin Shawn Conlogue, Law Office of Kevin S. Conlogue, Beverly Hills, CA, for Plaintiffs.
Christina Gail Retts, Kathleen L. Wieneke, Wieneke Law Group PLC, Tempe, AZ, for Defendants.
This lawsuit arises from the fatal shooting of Alexandre Andrich by Phoenix Police Department ("PPD") Officer Gus Kostas. (Doc. 31 ¶ 1.) The plaintiffs are Louise Andrich, who is suing both in her individual capacity as Mr. Andrich's sister and as the administrator of Mr. Andrich's estate, and Mr. Andrich's minor siblings AL.A. and AM.A. (collectively, "Plaintiffs"). (Id. ¶¶ 4-5.) The defendants are Officer Kostas, fellow PPD Officer Brian Peters, and the City of Phoenix ("the City") (collectively, "Defendants").
Now pending before the Court is Defendants’ motion to dismiss Plaintiffs’ Second Amended Complaint ("SAC"). For the following reasons, the motion will be granted in part and denied in part.
The facts alleged in the SAC are as follows. Officers Kostas and Peters "contacted" Mr. Andrich—for reasons not specified in the SAC—on the morning of June 12, 2018 at First Avenue and Osborne Road in Phoenix. (Doc. 31 ¶ 20.) Officers Kostas and Peters allegedly had "no probable cause, reasonable suspicion, or lawful reason to seize or detain [Mr. Andrich]." (Id. ) Mr. Andrich "was unarmed and never posed a threat to anyone" and also "suffered from a mental disability
of schizophrenia which was readily apparent." (Id. )
Officers Peters and Kostas "both attempted to detain and/or seize" Mr. Andrich by "physically restrain[ing him] with their hands and force." (Id. ) Officers Kostas and Peters "then began using hand and fist strikes against" Mr. Andrich and "each deployed their Tasers at [Mr. Andrich] when such force was not need[ed]." (Id. ) Then, as Mr. Andrich was "turning away" and "in a non-aggressive manner began walking away," Officer Kostas "fatally shot [Mr. Andrich] in the torso for no lawful reason." (Id. )
The SAC further alleges that Officer Peters "had the opportunity to deescalate the situation and avoid all force" but "failed to do so" and also "failed to intervene to prevent the fatal shooting" despite the "ability and duty" to do so. (Id. ¶¶ 20-21.) After the shooting, "[t]wenty-nine minutes passed ... before [Officers Kostas and Peters] timely reported the use of force and summoned medical care for [Mr. Andrich's] fatal gunshot wound
." (Id. ¶ 24.) The SAC alleges that "[h]ad proper life saving measures been applied, [Mr. Andrich's] death could have been avoided." (Id. ) Moreover, the SAC alleges that Officers Kostas and Peters "conspired with each other to fabricate facts and details in an effort to denigrate [Mr. Andrich] and put themselves in the best possible but false light." (Id. ¶ 26.)
On April 4, 2019, Plaintiffs filed a complaint. (Doc. 1.)
On June 10, 2019, Defendants filed a motion to dismiss. (Doc. 17.)
On June 24, 2019, Plaintiffs filed their First Amended Complaint ("FAC"). (Doc. 18.) The FAC asserted three federal causes of action (§ 1983 claims for excessive force and failure to intervene, denial of medical care, and Monell liability) and three state-law causes of action. (Id. )
On June 27, 2019, Defendants withdrew their original motion to dismiss. (Doc. 24.)
On July 8, 2019, Defendants filed a motion to dismiss the FAC. (Doc. 26.)
On January 23, 2019, the Court issued an order granting in part and denying in part the motion to dismiss. (Doc. 29.) In that order, the Court denied the motion to dismiss the § 1983 excessive force claim against Officer Kostas but granted the motion to dismiss Plaintiffs’ other § 1983 claims. (Id. at 4-9.) The Court also granted the motion to dismiss all state-law claims against Officers Kostas and Peters due to Plaintiffs’ failure to comply with Arizona's notice of claims statute. (Id. at 9-13.) Finally, the Court, after concluding that Arizona law and not California law governed the state-law claims, granted the motion to dismiss the individual plaintiffs’ state-law claims because Arizona law did not afford them standing. (Id. at 13-17.) The Court granted Plaintiffs’ request to amend the FAC as to the federal claims but concluded that amendment of the dismissed state-law claims would be futile. (Id. at 17-18.)
On January 31, 2020, Plaintiffs filed their SAC. (Doc. 31.) The SAC asserts the same three federal claims as the FAC and does not contain any state-law claims. (Id. )
On February 14, 2020, Defendants filed a motion to dismiss the SAC. (Doc. 33.)
On February 28, 2020, Plaintiffs filed a response. (Doc. 34.)
On March 6, 2020, Defendants filed a reply. (Doc. 35.)
To survive a motion to dismiss under Rule 12(b)(6), "a party must allege ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ " In re Fitness Holdings Int'l, Inc. , 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). "[A]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party." Id. at 1144-45 (citation omitted). However, the court need not accept legal conclusions couched as factual allegations. Iqbal , 556 U.S. at 679-80, 129 S.Ct. 1937. The court also may dismiss due to "a lack of a cognizable legal theory." Mollett v. Netflix, Inc. , 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted).
In Count I of the SAC, Plaintiffs assert a § 1983 claim against Officers Kostas and Peters for violating the Fourteenth Amendment's prohibitions against unreasonable searches and seizures and excessive force. (Doc. 31 ¶ 33.) As part of this claim, Plaintiffs seek to recover various categories of damages, including damages arising from Mr. Andrich's "pre-death pain and suffering." (Id. ¶ 38.)
Officers Kostas and Peters seek the dismissal of this category of damages. (Doc. 33 at 3-4.) They contend that, although the FAC only sought to hold them liable for the alleged excessive force that caused Mr. Andrich's death, the SAC now includes additional allegations of excessive force that preceded the gunshot, including fist strikes and taser use. (Id. ) They argue that such claims are foreclosed by Arizona's survival statute, A.R.S. § 14-3110, which precludes an estate from seeking recovery for the decedent's pre-death pain and suffering. (Id. )1 In response, Plaintiffs acknowledge that A.R.S. § 14-3110 "abates recovery of pain and suffering damages for all survival actions" but argue that it cannot be applied here because it is inconsistent with § 1983 ’s policies of compensation and deterrence. (Doc. 34 at 6-9.)
Section 1983 does "not address directly the question of damages." Carey v. Piphus , 435 U.S. 247, 255, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Thus, courts must apply "state-law survival remedies in § 1983 actions unless those remedies are inconsistent with the Constitution and laws of the United States." Jefferson v. City of Tarrant, Ala. , 522 U.S. 75, 79, 118 S.Ct. 481, 139 L.Ed.2d 433 (1997) (citation and internal quotation marks omitted).
In Chaudhry v. City of Los Angeles , 751 F.3d 1096 (9th Cir. 2014), the Ninth Circuit applied these principles when addressing a question that is related to, but distinct from, the question presented here. There, an...
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