1 2 3 4 5 UNITED STATES DISTRICT COURT 6

NORTHERN DISTRICT OF CALIFORNIA

7

8 KING DAVID LEVON DONAHUE III,

9 Plaintiff, No. C 23-05564 WHA 10 v.

11 ANTIOCH POLICE DEPARTMENT;

COUNTY OF CONTRA COSTA; ORDERS RE PENDING MOTIONS

12 CITY OF ANTIOCH; OFFICERS JOSHUA AND NOTICE TO PLAINTIFF

RIOSBAAS, KYLE SMITH, SHAWN

13 MARQUES, JACOB KING, RYAN GEIS,

RUDOLPH NIEVES, ARTURO

14 BECERRA, MATTHEW KOCH, BRANDON BUSBY, and JOSHUA 15 EVANS; and PROSECUTOR HEATHER P.

TURNER,

16 Defendants. 17

18 In this Section 1983 action, King David Levon Donahue III brought claims for relief 19 against County of Contra Costa, City of Antioch (and its police department), and individual 20 officers (Dkt. No. 1). Not all defendants were served, however (see Dkt. No. 34), and not all 21 parties appeared (see ibid.) to hear the first motion to dismiss (Dkt. No. 6). Rather than rule on 22 the motion, the Court provided Donahue another opportunity to obtain counsel and to clarify 23 his claims by amending his complaint (at his option), and ordered that the U.S. Marshals serve 24 the remaining defendant (see Dkt. No. 34). Before the ink was dry on the Court’s order, 25 plaintiff filed a motion for default judgment and damages of “$15,0012,000.000 USD [sic]” 26 (Dkt. No. 39 at 4). The remaining defendant was then served (Dkt. Nos. 35, 36). And 27 Donahue, without following up on pro bono counsel referrals or otherwise obtaining counsel, 1 filed an amended complaint (Dkt. No. 40). Donahue then filed, without further leave, a second 2 amended complaint (Dkt. No. 42). The first amended complaint purported to add one new 3 defendant, County of Contra Costa Prosecutor Heather P. Turner (Dkt. No. 40 at 6, construed 4 liberally); the second amended complaint purported to add a second new defendant, City of 5 Antioch Police Officer Joshua Evans (Dkt. No. 41 at 1). These defendants were not served or 6 did not file certificates of service (see also Dkt. No. 42 (Contra Costa failing to mention by 7 name Prosecutor Turner); Dkt. No. 43 at 3 n.5 (Antioch accepting that it represents other 8 officers, but not Officer Evans)). All the served defendants timely filed new motions to 9 dismiss (Dkt. Nos. 43, 44). This results in the following orders: 10 1. The original motion to dismiss filed by Antioch (Dkt. No. 6) as to the original 11 complaint (Dkt. No. 1) is DENIED AS MOOT. 12 2. The motion for default judgment filed by Donahue (Dkt. No. 39) is DENIED. 13 Donahue asserts facts about service (see id. at 3) that are unsupported by the record of 14 service (see, e.g., Dkt. No. 36 at 1). And Donahue seeks default relief of $15,012,000 15 now (see Dkt. No. 39 at 4), even though the ordinary process for relief has not run its 16 course (see Dkt. No. 34). “Cases should be decided upon their merits whenever 17 reasonably possible.” Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). This 18 case can be. 19 3. The Court construes Donahue’s second amended complaint (Dkt. No. 42) as a motion 20 for leave to amend his first amended complaint (Dkt. No. 40) under Rule 15 and 21 within the time allowed for amendment and service by Court order (Dkt. No. 34). 22 Cf. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995) (duty to construe pro 23 se pleadings liberally). The Court likewise construes the motions to dismiss the 24 second amended complaint (Dkt. Nos. 43, 44) as non-oppositions to this motion for 25 leave to amend, at least as to those movant-defendants (see, e.g., Dkt. No. 43 at 1 n.3, 26 3 n.5 (accepting changes except as to addition of defendant)). The motion for leave 27 to amend is thus GRANTED. The second amended complaint is thus, as parties have ] 4. Counsel for Contra Costa and Antioch shall each submit sworn declarations affirming 2 or denying whether they legally represent and waive service on behalf of Prosecutor 3 Turner and Officer Evans. They shall also attest whether, if they do represent those 4 parties, they require supplemental briefing for their motions to dismiss. The Court 5 will consider extensions of up to fourteen days and up to seven pages in briefing. 6 These sworn declarations are due BY NOON ON AUGUST 30, 2024. 7 5. The ordinary time for Donahue to oppose the existing motions to dismiss from the 8 existing defendants is fourteen days. Civil L.R. 7-3(a). The Court indicated it would 9 advise parties of appropriate next steps (Dkt. No. 34 at 3). An extension of the 10 ordinary time to oppose is appropriate: The Court extends the total time to respond to 11 twenty-one days, making Donahue’s opposition to the motions to dismiss (Dkt. Nos. 12 43, 44) thus due BY SEPTEMBER 3, 2024. E 13 6. For avoidance of doubt, plaintiff does not have leave to amend his complaint further. 14 15 IT IS SO ORDERED.

i 17 Dated: August 28, 2024. 18 0 1 19 -

LLIAM ALSUP

20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28