Jones v. Las Vegas Metro. Police Dep't

• Decision Date: 20 October 2017
• Docket Number: No. 14-17388.,14-17388.
• Parties: Johnathan JONES, also known as John Leroy Jones; Rosie Lee Mathews; Estate of Anthony Jones, Plaintiffs-Appellants, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT; Mark Hatten ; Timothy English ; Richard Fonbuena; Steven Skenandore, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

873 F.3d 1123

Johnathan JONES, also known as John Leroy Jones; Rosie Lee Mathews; Estate of Anthony Jones, Plaintiffs-Appellants,

v.LAS VEGAS METROPOLITAN POLICE DEPARTMENT; Mark Hatten ; Timothy English ; Richard Fonbuena; Steven Skenandore, Defendants-Appellees.

No. 14-17388.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 15, 2016—San Francisco, California

Filed October 20, 2017

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiffs-Appellants.

Craig R. Anderson (argued) and Micah S. Echols, Marquis Aurbach Coffing, Las Vegas, Nevada, for Defendants-Appellees.

Before: Alex Kozinski, Jay S. Bybee and N. Randy Smith, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge N.R. Smith

OPINION

KOZINSKI, Circuit Judge:

We consider whether police officers are entitled to qualified immunity when they're alleged to have caused the death of a suspect by using tasers repeatedly and simultaneously for an extended period.

BACKGROUND¹

In the early morning of December 11, 2010, Officer Mark Hatten of the Las Vegas Metropolitan Police Department pulled over Anthony Jones for a routine traffic stop. Hatten ordered Jones out of the car so he could pat him down for weapons. Jones obeyed at first but then started to turn toward Hatten. Scared of the much larger Jones, Hatten drew his firearm, pointed it at Jones and ordered him to turn back around. Instead, Jones sprinted away.

Hatten called for backup and pursued Jones. Hatten didn't believe deadly force was necessary because Jones hadn't threatened him and didn't appear to have a weapon. As he waited for other officers to arrive, Hatten used his taser to subdue Jones. Hatten fired his taser twice, causing Jones's body to "lock up" and fall to the ground face down with his hands underneath him. Hatten proceeded to kneel on Jones's back in an attempt to handcuff Jones, keeping his taser pressed to Jones's thigh and repeatedly pulling the trigger.

Hatten continued to tase Jones even after backup arrived. Backup consisted of four officers: Richard Fonbuena on Hatten's right side, who helped handcuff Jones; Steven Skenandore, who controlled Jones's legs and feet; Timothy English at Jones's head, who applied a taser to Jones's upper back; and Michael Johnson, who arrived last and ordered the tasing to stop. Johnson wanted his officers to "back off on the tasers so that [Jones's] muscles would relax." According to Johnson, Jones "didn't look like he was physically resisting" and there were "enough officers" to take Jones into custody. In all, Jones was subjected to taser shocks for over ninety seconds: Hatten tased Jones essentially nonstop that whole time—with some applications lasting as long as nineteen seconds—and, for ten of those seconds, English simultaneously applied his taser.

Once the officers stopped tasing Jones, his body went limp. They sat him up but Jones was nonresponsive and twitching; his eyes were glazed over and rolled back into his head. The officers tried and failed to resuscitate him. Jones was pronounced dead shortly thereafter. The coroner's report concluded that "police restraining procedures"—including the tasings—contributed to Jones's death.

Jones's parents sued the Las Vegas Metropolitan Police Department and all of the officers involved in restraining Jones. They alleged Fourth and Fourteenth Amendment violations as well as various state law torts. The district court granted summary judgment for the defendants on all claims. Because plaintiffs make no arguments regarding the district court's dismissal of the Monell claim against the police department, we deem that claim waived. See Hayes v. Idaho Corr. Ctr. , 849 F.3d 1204, 1213 (9th Cir. 2017). Plaintiffs also voluntarily dismissed their claims against Officers Fonbuena and Skenandore, so we consider only the claims against Officers Hatten and English.

ANALYSIS

A. Rule 17 Relief

Fourth Amendment claims are "personal" and may not be "vicariously asserted." Moreland v. Las Vegas Metro. Police Dep't , 159 F.3d 365, 369 (9th Cir. 1998). Section 1983 actions, however, may be brought by "the survivors of an individual killed as a result of an officer's excessive use of force," provided state law authorizes a survival action. Id. (citing 42 U.S.C. § 1988(a) ). Nevada authorizes survival actions by the "executor or administrator" of a decedent's estate. Nev. Rev. Stat. § 41.100(3) (1997); see also Moreland , 159 F.3d at 369–70. Plaintiffs didn't assert their Fourth Amendment claims as executor or administrator of Jones's estate and thus didn't have standing to bring these claims. The district court denied relief under Rule 17 by refusing to provide plaintiffs an opportunity to substitute the proper party. We review Rule 17 determinations for abuse of discretion. Esposito v. United States , 368 F.3d 1271, 1273 (10th Cir. 2004).

Courts "may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action." Fed. R. Civ. P. 17(a)(3). The purpose of the rule is "to prevent forfeiture of a claim when an honest mistake was made." Goodman v. United States , 298 F.3d 1048, 1054 (9th Cir. 2002) ; see also 6A Charles Alan Wright et al., Federal Practice and Procedure § 1555 (3d ed. 2017) (noting the "judicial tendency to be lenient when an honest mistake has been made in selecting the proper plaintiff"). This is consistent with our longstanding policy in favor of deciding cases on the merits. See, e.g. , Dahl v. City of Huntington Beach , 84 F.3d 363, 366 (9th Cir. 1996) ; Russell v. Cunningham , 279 F.2d 797, 804 (9th Cir. 1960).

Defendants argued in their summary judgment motion that neither Jones's father nor the estate had standing to bring Fourth Amendment claims. Plaintiffs responded that the complaint did name parties with standing—the father and the estate, because the father was the administrator of the estate. This was wrong under Nevada law, which called for naming the father as administrator. Plaintiffs thus named the right person but in the wrong capacity. The district court correctly determined that no proper plaintiff had been named for the Fourth Amendment claims.

We have held that Rule 17 relief is available where counsel makes an "understandable" error in naming the real party in interest. Goodman , 298 F.3d at 1053–54. Plaintiffs claim they made an "honest and understandable mistake" by naming Jones's estate and father as plaintiffs (rather than naming the father as administrator of Jones's estate) because the district court had approved a stipulation amending their complaint to name Jones's estate as a plaintiff.² While this is hardly the best excuse, it was not unreasonable for plaintiffs to have construed the district court's approval of the stipulation as a determination that they had named the proper party. The district court's summary judgment ruling disabused plaintiffs of this notion. Once this occurred, Rule 17 required the district court to give plaintiffs a reasonable opportunity to cure their error: A court "may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed." Fed. R. Civ. P. 17(a)(3) (emphasis added). Rather than enter judgment immediately after noting the deficiency, the district court should have given plaintiffs a reasonable opportunity to substitute the right party. See, e.g. , Esposito , 368 F.3d at 1272 (reversing district court's dismissal because plaintiff's mistake was honest, even if not understandable, so court was required to give plaintiff an opportunity to substitute); Jaramillo v. Burkhart , 999 F.2d 1241, 1246 (8th Cir. 1993) (reversing district court's dismissal because plaintiff wasn't given a reasonable opportunity to substitute); Kilbourn v. West. Sur. Co. , 187 F.2d 567, 571–72 (10th Cir. 1951) (reversing summary judgment so that real party in interest could be substituted); cf. Kuelbs v. Hill , 615 F.3d 1037, 1042–43 (8th Cir. 2010) (holding that district court gave plaintiffs reasonable time to substitute party when it ordered them to address the issue and waited six months before dismissing).³

The district court noted a "disconnect" between the date plaintiffs claimed their probate order appointing Jones's father as administrator was filed and the actual filing date of that order. See supra note 2. But this "disconnect" had little to do with plaintiffs' honest mistake—naming the estate, not the administrator of the estate, as a plaintiff—for which our case law requires relief under Rule 17. See, e.g. , Goodman , 298 F.3d at 1053–54. Plaintiffs explained that they thought they had named the proper plaintiffs, and they did have the probate order signed—though not filed—at the time of the first amended complaint. They were entitled to a reasonable amount of time to correct their error.

Within five days of the district court's ruling, plaintiffs filed a motion seeking leave to do so. They represented that they had the proper party ready to substitute in the action because Jones's father was the administrator of the estate. Although they relied on Rule 15, the motion was one they were permitted to file under Rule 60(b)(1) and sought relief to which they were entitled under Rule 17. Defendants haven't argued that the citation to the wrong rule prejudiced them in any way. The district court didn't rule on this motion until months after plaintiffs had filed their timely notice of appeal, which deprived the district court of jurisdiction.

Consistent with the text of Rule 17 and our case law interpreting it, we conclude that the district court abused its discretion by failing to give plaintiffs a reasonable opportunity to substitute the proper party and thus cure the defective complaint.

B. Qualified Immunity

Defendants...