Opinion
No. CV 00-04191 GAF (AJWx)
April 17, 2001
Stephen Yagman, Howard R. Price, Keith G. Wileman, Errol H. Stambler, Gail Marie Lisoni, Gregory W. Moreno, Susan A. Rodriguez, Bruce A. Gilbert, Gregory A. Yates, Joseph Louis Lisoni, Jeff Price, Joan Kenegos, R. Samuel Paz, Ricardo L. Mendoza, Antonio H. Rodriguez, John A. Girardi, Harold J. Light, Wilkie Cheong, Lawarence A. Forbes, Jose Perez, Daniel M. Holzman, Luis A. Carrillo, Martin Stanley, Leslie Boyce, Attorneys for Plaintiffs.
Paul N. Paquette, Russell J. Cole, Jody L. Eaton, Michael D. Allen, Barry R. Gammell, Michael R. Nebenzahl, Jennifer F. Swiller, Gina L. Tanner, Thomas J. Feeley, Irwin S. Evans, Steven D. Blades, Surekha A. Pessis, Wendy Shapero, Attorneys for Defendants.
ORDER RE: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT BASED ON HECK v. HUMPHREY AND FOR DISMISSAL ON IMMUNITY GROUNDS
I. INTRODUCTION
Plaintiff Darryl Fitzpatrick alleges that he was subjected to excessive force by several Los Angeles Police Department ("LAPD") officers after they stopped him for running a red light. He further alleges that he was falsely prosecuted for and convicted of marijuana possession based on false police reports the officers filed indicating they recovered a large amount of marijuana from Fitzpatrick and his vehicle when they stopped him. His case is one of many connected to the still unfolding Rampart police scandal.
Fitzpatrick sued the officers involved in his arrest, other officers assigned to the Rampart Division and a number of other defendants he claims failed properly supervise the police department, including the current and former chiefs of police and members of the Los Angeles City Council. The defendants have filed two motions to dismiss Fitzpatrick's claims. In the first motion, the defendants seek summary judgment of Fitzpatrick's claims under 42 U.S.C. § 1983 ("§ 1983") based on the rule in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). Heck holds that a plaintiff may not bring a § 1983 claim which would necessarily imply the invalidity of his prior state court conviction until the conviction has been overturned or otherwise invalidated. Because a judgment in Fitzpatrick's favor in this case would not necessarily conflict with his criminal conviction, none of his § 1983 claims are barred by the Heck rule. Therefore, defendant's motion for summary judgment is DENIED.
In the second motion the City Council Defendants seek to dismiss Fitzpatrick's claims against them individually on the basis of absolute or qualified immunity. Because the Court cannot determine the moving defendants' entitlement to immunity on the basis of the pleadings, this motion is DENIED at this time, but the denial is without prejudice to permit the moving defendants to renew it once Fitzpatrick's supervisorial claims have been fleshed out.
II. FACTUAL BACKGROUND
The material facts set forth below are taken from Fitzpatrick's complaint. For purposes of both of these motions, the Court accepts Fitzpatrick's allegations as true.
The one exception is the facts surrounding Fitzpatrick's conviction which are undisputed. For purposes of the defendants' motion for summary judgment, the Court accepts Fitzpatrick's other allegations as true to establish his claims under § 1983. Thus, this motion is appropriate for resolution on summary judgment.
Fitzpatrick was stopped by several LAPD officers for running a red light on August 14, 1999. (Complaint at ¶ 6; Mot. at 3). The officers ordered Fitzpatrick out of the car and placed him face down on the pavement while they ran a check on his vehicle. (Complaint at ¶ 6). One officer held Fitzpatrick there, for approximately twenty minutes, by putting his boot on the back of Fitzpatrick's neck. (Id. at ¶ 6).
Although not explicitly pled, it appears that the vehicle check showed that the car Fitzpatrick was driving was stolen. The officers then proceeded to search Fitzpatrick and the vehicle. The search of Fitzpatrick revealed he was carrying marijuana, but the exact amount is in dispute. Fitzpatrick admits he had a small amount of marijuana for personal use, but claims the officers falsified reports showing he was carrying 2 bags of marijuana and 20 empty plastic baggies for distribution or sale. (Id. at ¶ 7). With respect to the search of the car, the officers filed two reports, which Fitzpatrick also contends are false, indicating they found four more bags of marijuana and 22 empty baggies inside. (Id. at ¶ 8).
Fitzpatrick was charged in a two count indictment with operating a vehicle without the owner's permission (California Vehicle Code § 10851) and possession of marijuana for sale (California Health Safety Code § 11360). (Mot. at Exh. 1 at p. 6; Declaration of Paul Paquette at ¶ 2). As part of a plea bargain, Fitzpatrick pled guilty to the first count and the second count was dismissed. (Mot. at Exh. 1 at p. 9; Paquette Decl. at ¶ 3). Fitzpatrick was given credit for time served and placed on three years probation. (Mot. at Exh. 1 at p. 9). His conviction has never been invalidated. (Mot. at 3; Paquette Decl. at ¶ 4).
Procedural Posture
Fitzpatrick filed this action on April 20, 2000. He named 52 individuals as defendants whom he arranged into three groups including, (1) the current and two former chiefs of police (the "Police Chief Defendants"); (2) 21 current and former members of the City Council ("the City Council Defendants"); and (3) 28 current and former police officers (the "Police Officer Defendants"). (Complaint at ¶ 5). His complaint includes claims for civil rights violations under 42 U.S.C. § 1983, 1985, 1986 and for violations of the Racketeer Influenced and Corrupt Organizations Act 18 U.S.C. § 1961 et seq. ("RICO"). Fitzpatrick seeks monetary, injunctive and declaratory relief on behalf of himself and for a class of similarly situated plaintiffs.
Defendants move to dismiss Fitzpatrick's claims under § 1983 on the basis of the rule announced in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). The City Council Defendants also claim they are entitled to either absolute or qualified immunity against these claims. The Court addresses each motion in turn.
Defendants moving papers also list Mayor Richard Riordan and City Attorney James Hahn as moving parties. Fitzpatrick did not name Mayor Riordan or City Attorney Hahn as defendants.
1. The Heck v. Humphrey Rule
In Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364 (1994), the Supreme Court held that a claim for damages is not cognizable under § 1983 if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence," unless the conviction has previously been invalidated. The petitioner in Heck had been convicted of voluntary manslaughter for killing his wife and was serving a fifteen year sentence in an Indiana state prison. While his state court appeal was still pending, he filed a § 1983 action alleging that the officers and officials who had investigated and prosecuted his case had knowingly destroyed exculpatory evidence and used an illegal voice identification at his trial.
The Supreme Court concluded that Heck had no § 1983 action for these alleged constitutional violations while his criminal conviction was still in force. To prevail, on his claims, Heck would necessarily have to demonstrate the invalidity of his convictions. Doing so would constitute a collateral attack on his sentence and undermine Congress intent to preserve habeas corpus as the exclusive means for state prisoners to challenge their sentences. Heck, 512 U.S. at 481-82, 114 S.Ct. 2364. Therefore, until Heck could demonstrate that his conviction had been reversed, expunged, or otherwise declared invalid, his § 1983 claims had not accrued. Id. at 487; 114 S.Ct. 2364.
B. Fitzpatrick's Excessive Force and Malicious Prosecution Claims Are Not Barred by Heck
Fitzpatrick's allegations include claims for excessive force and malicious prosecution/falsification of evidence. Because Heck only bars those claims which would necessarily imply the invalidity of plaintiffs state court conviction, the Court must assess each of his claims individually. Heck, 512 U.S. at 487, 114 S.Ct. 2364.
The term "malicious prosecution claim" is used here loosely to refer to Hernandez' claim that he was subjected to a criminal prosecution on the basis of false evidence and perjured testimony. In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807 (1994), the Supreme Court held there is no substantive due process right to be free from criminal prosecution without probable cause and therefore such claims must be analyzed in terms of a violation of the plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures.
In paragraph 29 of his complaint, Fitzpatrick states that he also is asserting a claim for false arrest, but he has failed to allege any facts to support such a claim. Fitzpatrick admits that the arresting officers found some amount of marijuana when he was searched. (Complaint at ¶ 7). Holding Fitzpatrick to this allegation, see Hall v. United States, 314 F. Supp. 1135, 1138 n. 3 (N.D.Cal. 1970) (plaintiffs are bound by admissions in their complaints), it seems to only possible scenario under which he could claim he was wrongly arrested would be if the officers had no grounds to search him in the first place; however, Fitzpatrick does not allege that he was subjected to an illegal search.
1. Excessive Force
In Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996), the Ninth Circuit applied the Heck rule to an excessive force claim under § 1983. Smithart was convicted of assault with a deadly weapon for driving his truck at a county sheriff and state highway patrol officer. In his § 1983 action, Smithart alleged that after he exited his vehicle the officers beat him "beyond recognition with unnecessary force." Smithart, 79 F.3d at 952 (quoting complaint). The Ninth Circuit concluded that success on this claim would not be "fundamentally inconsistent" with Smithart's prior criminal judgment because the allegations went to conduct distinct from that supporting his conviction. Id. at 953. The same analysis is applicable to this case. Fitzpatrick alleges that one of the officers kept him pinned to the ground for approximately twenty minutes by pressing a boot to the back of Fitzpatrick's neck. A verdict based on these allegations, if proven true, would not be "fundamentally inconsistent" with Fitzpatrick's conviction for operating a vehicle without the owner's consent, the underlying facts of which were complete before his encounter with the police began. Accordingly, Heck presents no bar to this claim.
2. Malicious Prosecution/Falsification of Evidence
Fitzpatrick's claims that the officers falsified the amount of marijuana in his possession when he was arrested and this led to the institution of drug charges against him. (Complaint at ¶¶ 7-8). To state a malicious prosecution claim Fitzpatrick must show that prior legal proceedings have been terminated in his favor. See Heck, 512 U.S. at 484; 114 S.Ct. 2364. As the charge of marijuana possession was dropped, this claim is not barred by the Heck rule.
Another Judge in this District has suggested that where a dismissal is part of a negotiated plea agreement the dismissal does not constitute a favorable termination and thus is barred under Heck. See Nuno v. County of San Bernardino, 58 F. Supp.2d 1127, 1139 (C.D. Cal. 1999) citing Coakley v. Jaffe, 49 F. Supp.2d 615 (S.D.N.Y. 1999). This Court disagrees. Although the Supreme Court in Heck analogized the petitioner's § 1983 claim to a common law claim of malicious prosecution, the analogy has its limits. The Heck rule only bars those § 1983 claims which would "necessarily imply" the invalidity of the plaintiffs prior conviction. By its own terms, the Heck rule does not contemplate barring constitutional claims based on a common law rule merely because they were connected to a voluntary plea agreement in a prior criminal proceeding.
C. A Defendant's Immunity to Suit Under 42 U.S.C. § 1983 May Be Determined by the Court on a Motion to Dismiss.
The City Council Defendants seek dismissal of Fitzpatrick's § 1983 claims against them, in their individual capacity, on the basis of absolute or qualified immunity. When an official is sued in an individual capacity, he or she may assert absolute or qualified immunity as an affirmative defense. Absolute and qualified immunity may be raised by a defendant by filing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834 (1996); Meek v. County of Riverside, 183 F.3d 962 (9th Cir.), cert. denied, 528 U.S. 1005 (1999); Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996). Because defendants shielded by immunity are immune from suit altogether, courts endeavor to decide issues of immunity as early in the proceedings as possible. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806 (1985); Ortega v. O'Connor, 146 F.3d 1149, 1154 (9th Cir. 1998).In ruling on a motion to dismiss, the Court accepts all of the factual allegations in the plaintiffs complaint, and the reasonable inferences drawn from them, as true. Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502 (1997); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Dismissal is appropriate only where it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief, or, in this case, where the plaintiffs allegations if true, would not support personal liability because the defendant is entitled to immunity. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).
D. The City Council Defendants are Not Entitled to Dismissal of Fitzpatrick's Supervisorial Liability Allegations at this Time.
Although the factual allegations with respect to the City Council Defendants are sparse, Fitzpatrick generally alleges that the City Council members should be held individually liable for their failure to supervise the LAPD. (See Complaint at ¶¶ 29, 33, 34). Supervisors may be liable under § 1983 for their own culpable action or inaction in the training, supervision, or control of subordinates; for acquiescence in the constitutional injuries complained of; or for conduct showing a reckless or callous indifference to the rights of others, if such conduct led to the injury complained of. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). The Court concludes that while the City Council Defendants do not have de jure supervisorial responsibility over the police department which could give rise to a § 1983 claim, it is possible that one or more of them became involved in police department matters to such an extent that they may be said to have exercised de facto supervision or control over one or more issues that have some bearing on this case. See e.g., Harris v. City of Pagedale, 821 F.2d 499 (8th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 504 (1987). At this stage, the Court cannot say, one way or the other, whether the facts would bear this out. What the Court can say is that the allegations of the complaint are sufficiently broad that the Court cannot dismiss these allegations on immunity grounds at this time. Accordingly, the Court will deny the City Council Defendants motion without prejudice at this time.
Unlike the majority of the Rampart-related cases filed by plaintiffs counsel, the complaint in this case includes no allegations suggesting the City Council Defendants should be held liable based on their prior decisions to indemnify police officers sued for civil rights violations. Since this theory of liability has not been alleged it is not addressed by this order.
The Court makes no ruling with respect to Fitzpatrick's RICO claims or these defendants' potential immunity to suit from such claims. None of the parties have yet had an opportunity to fully and fairly address the substance of these claims and the Court is unable to apply the immunity analysis to plaintiffs allegations against these defendants. Specifically, while plaintiffs counsel has suggested that he believes members of the City Council may be held liable under § 1983 for their indemnification decisions or their failure to supervise the police department, he has not had an opportunity to address how these defendants allegedly "participate[d] . . . in the conduct of . . . [an enterprise's] affairs through a pattern of racketeering activity. . . ." 18 U.S.C. § 1962 (c) (emphasis added). The Court will permit the parties to litigate this issue by separate motion in the near future.
E. This Case is Inappropriate for Declaratory Relief.
The Declaratory Judgment Act, 28 U.S.C. § 2201, 2202, provides a means by which rights and obligations may be adjudicated in cases involving an actual controversy that have not reached the stage at which either party may seek a coercive remedy, or in which a party entitled to a coercive remedy fails to sue. See, generally, 12 Moore's Federal Practice, § 57.04[3] (3d ed. 2000). "The remedy is intended to minimize the danger of avoidable loss and the unnecessary accrual of damages, and to afford one threatened with liability an early adjudication without waiting until an adversary should see fit to begin an action after the damage has accrued." Saum v. Widnall, 912 F. Supp. 1384, 1394 (D. Cob. 1996). As with all cases filed in federal court, actions for declaratory relief must present a justiciable controversy involving an actual case or controversy brought by a plaintiff with proper standing to sue.Where a plaintiff seeks damages or relief for an alleged constitutional injury that has already occurred declaratory relief generally is inappropriate. See Saum, 912 F. Supp. at 1394; Hoagy Wrecker Serv., Inc. v. City of Ft. Wayne, 776 F. Supp. 1350, 1359 (D. Ind. 1991) (Act unavailable to tow truck operator asserting equal protection claim against city in connection with award of contract to other operators; purpose of Act was to prevent the accrual of avoidable damages, and these had already occurred); Gruntal Co., Inc. v. Steinberg, 837 F. Supp. 85, 89 (D.N.J. 1993) (declaratory judgment is inappropriate solely to adjudicate past conduct); Boston v. Lafayette County, 744 F. Supp. 746, 755-56 (N.D. Miss. 1990), aff'd 933 F.2d 1003 (5th Cir. 1991) (declaratory relief unavailable in civil rights action arising from death of detainee where defendants immune from damages and no threat of future injury). Furthermore, to challenge an allegedly unconstitutional practice which has been enforced against a plaintiff, the plaintiff must allege that there are continuing or current adverse effects from the past enforcement or that there is an immediate threat of repeated injury from subsequent enforcement. City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660 (1983) (plaintiff who claimed he was subjected to excessive force by defendant police officers' use of choke hold could not maintain claim for injunctive relief against City's continued use of procedure); Del Percio v. Thornsley, 877 F.2d 785, 786-87 (9th Cir. 1989).
The cases cited above confirm that where, as here, a plaintiff seeks no prospective relief, the Declaratory Judgment Act is an inappropriate vehicle for asserting constitutional claims. In this case, a declaration of the parties' rights will not prevent the accrual of avoidable damages and therefore, will not serve the purposes of the Act. Indeed, a declaration that a policy or practice exists would provide Fitzpatrick no relief whatsoever. Nor is there an immediate threat of repeated injury to Fitzpatrick that would confer standing on him. Cf. City of Los Angeles, 461 U.S. at 105, 103 S.Ct. 1660. For these reasons, Fitzpatrick's claim for declaratory relief is dismissed.
IV. CONCLUSION
For the reasons stated above, defendant's motion for summary judgment is DENIED. Defendants' motion to dismiss is DENIED WITHOUT PREJUDICE. Plaintiffs claim for declaratory relief (Count Five) is DISMISSED.
IT IS SO ORDERED.
PROCEEDINGS: FINAL RULING ON DEFENDANTS' RULE 19 JOINDER MOTIONS
In Ovando v. City of Los Angeles, 92 F. Supp.2d 1011 (C.D. Cal. 2000) this Court held that plaintiffs minor daughter could state a substantive due process claim under 42 U.S.C. § 1983 ("section 1983") for the deprivation of her constitutional right to familial association based on her father's wrongful incarceration. In this motion, the City of Los Angeles claims that, as a result of Ovando, it now faces an unknown number of additional substantive due process suits with Ovando-type claims being filed by the family members of the plaintiff, each involving the same set of facts at issue in the underlying case. The number is unknown because the City has made no effort to determine whether any of the putative plaintiffs contemplate bringing a substantive due process claim. Nonetheless, the City moves under Rule 19, Federal Rules of Civil Procedure, to join each of these unknown individuals as "necessary parties" in approximately 80 pending "Rampart" cases. Having read and considered the papers, the authorities cited therein, and additional authorities not cited by the parties, the Court DENIES the motions.
A. Standards for Evaluating Motions Under Rule 19
Rule 19 provides for the mandatory joinder of parties "needed for a just adjudication," commonly referred to as "necessary" parties. Joinder is required under three circumstances. First, an absent party must be joined when the court cannot accord "complete relief" to the existing parties without the absent party's participation. Fed.R.Civ.P. 19(a)(1). Second, joinder will be ordered when an absent party claims an interest in the subject of the existing litigation which may be prejudiced by the outcome of the case. Fed.R.Civ.P. 19(a)(2)(i). Finally, joinder is appropriate when an existing party will be subjected to a substantial risk of incurring multiple or inconsistent obligations if an absent part is not joined. Fed.R.Civ.P. 19(a)(2)(ii).
Rule 19's conditions for joinder are phrased in the disjunctive; thus, joinder is appropriate if any condition is met. Yellowstone County v. Pease, 96 F.3d 1169, 1172 (9th Cir. 1996). The inquiry under Rule 19 is "a practical one and fact specific." Washington v. Daley, 173 F.3d 1158, 1165 (9th Cir. 1999). Thus, the question of whether to require the joinder of additional parties under Rule 19 must be made in light of the particular circumstances of each case. Northern Alaska Environmental Ctr. v. Hodel, 803 F.2d 466, 468 (9th Cir. 1986).
Here, there is no contention that complete relief cannot be affected without joining additional parties. Therefore, the relevant inquiry is whether, in the absence of an order requiring joinder, (a) a defendant will run the risk of incurring inconsistent obligations or (b) an absent party will be prejudiced if the litigation proceeds without them.
1. The City Has Not Followed The Necessary Procedures
Rule 19 states that if a party "should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. . . ." Fed.R.Civ.P. 19(a) (emphasis added). Under this rule, a defendant who wants to join an absent party as a plaintiff must first ask the absent party. See Indep. Wireless Telegraph Co. v. Radio Corp. of America, 269 U.S. 459, 473, 46 S.Ct. 166 (1926) ("The owner beyond the reach of process may be made coplaintiff by the licensee, but not until after he has been requested to become such voluntarily."); 7 Charles A. Wright, et al., Fed. Prac. Proc. § 1606 (2d ed. 2001). The City has made no effort to seek the voluntary joinder of the absent family members as plaintiffs. Indeed, it has not yet identified any specific individuals whom it believes should be joined. The City conceded as much at the hearing on the motion, but argued that the Court should fashion some sort of "one-action" rule, based on California survivorship law (even though none of these cases involves survivorship issues), so that the City could avoid the theoretical possibility of litigating suits, brought by persons who are now minors, decades hence.
Because the City has failed to follow the appropriate procedure under Rule 19, the motion could be dismissed on that ground alone. However, since the parties have spent considerable time and effort attempting to address the merits of the motion, the Court will likewise address them.
2. The City Is Not Subject to a Risk of Inconsistent Obligations
Rule 19 makes the joinder of absent parties necessary if their absence will "leave any of the existing parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations. . . ." Fed.R.Civ.P. 19(a)(2)(ii). The City complains that because the underlying facts of this case, and any case brought by an absent family member, would be the same, it faces the potential for multiple and inconsistent judgments if it wins the first case and loses a later one. But multiple and inconsistent adjudications are not the same as inconsistent obligations. As explained by the Eleventh Circuit:
Inconsistent obligations occur when a party is unable to comply with one court's order without breaching another court's order concerning the same incident. Inconsistent adjudications or results, by contrast, occur when a defendant successfully defends a claim in one forum, yet loses on another claim arising from the same incident in another forum. Unlike a risk of inconsistent obligations, a risk that a defendant who has successfully defended against a party may be found liable to another party in a subsequent action arising from the same incident — i.e., a risk of inconsistent adjudications or results — does not necessitate joinder of all of the parties into one action pursuant to Fed.R.Civ.P. 19(a).
Delgado v. Plaza La Americas, Inc., 139 F.3d 1, 3 (11th Cir. 1998) (internal citations omitted).
Thus, the fact that the City might obtain different results in different cases does not establish a basis for Rule 19 joinder.
3. Potential Prejudice to the Absent Parties Does Not Require Joinder
Although joinder need not be ordered to protect the City's interests, the Court must consider whether absent family members should be joined to protect their potential interests in the pending litigation. Rule 19 requires joinder of absent parties who have a legally protected interest in the litigation and whose absence may "as a practical matter impair or impede" their ability to protect that interest. Fed.R.Civ.P. 19 (a)(2)(i); In re County of Orange, 262 F.3d 1014, 1022 (9th Cir. August 28, 2001). Though more complex and less free from doubt than the other grounds raised in this motion, the Court concludes that joinder should not be ordered on this ground.
Resolution of this issue turns on the possibility that, under principles of res judicata and collateral estoppel, the absent parties may be precluded from pursuing future claims against the City. Thus, for example, Aguilar v. County of Los Angeles, 751 F.2d 1089, 1091 (9th Cir. 1985), tends to support the City's argument. However, later decisions have dulled Aguilar's sharp edge. See, e.g., Washington v. Daley, 173 F.3d 1158, 1167 (9th Cir. 1999); Southwest Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1153-54 (9th Cir. 1998). Under those decisions, the Court must determine whether the interests of the absent parties will be adequately protected or represented by an existing party. Here the substantive due process claims of the absent family members derive from, and are dependent on, proof that the existing plaintiff suffered constitutional injury. Since the existing plaintiff must prove constitutional injury to prevail in the present suit, the interests of the parties are perfectly aligned. Moreover, because the parties allegedly share a familial relationship, the plaintiff has an additional incentive to protect the absent parties' interests. Thus, the plaintiff can properly be characterized as the virtual representative of the absent parties.
Finally, the Court believes that it should, consistent with Rule 19, respect the decision of the absent parties, who have never claimed an interest in the present litigation, to remain on the sidelines since doing so will not prejudice the City. Under both clauses of Rule 19 (a)(2), joinder is not required unless an absent party "claims an interest relating to the subject of the action. . . ." Fed.R.Civ.P. 19 (a)(2). The Ninth Circuit has held that parties who are aware of an action and choose not to join in it, need not be considered necessary parties because they have not claimed an interest in the litigation. United States v. Bowen, 172 F.3d 682, 689 (9th Cir. 1999) (collecting Ninth Circuit cases). Here, the absent family members arguably have at least constructive knowledge of the existence of this action. See Landreth v. United States, 850 F.2d 532, 534 (9th Cir. 1988) (a parent's knowledge of a child's injuries is properly imputed to the child in cases involving tort claims). Thus, joinder could be refused since none of them have chosen to join the litigation as plaintiffs, so long as no other rights or interests, protectable under Rule 19, are implicated.
For each of the foregoing reasons, the Court concludes that the City's motions should be DENIED.
IT IS SO ORDERED.