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Lookabill v. City of Vancouver

United States District Court, W.D. Washington, Tacoma

January 30, 2015

NIKKOLAS WREN KENNETH LOOKABILL, FRANK WESCOM, JR., parent and as personal representative of the Estate of NIKKOLAS LOOKABILL, deceased, and GAGE WESCOM, Plaintiffs,
v.
CITY OF VANCOUVER, Vancouver Police Officers FRANKLIN N. GOMEZ, SERGEANT JOHN DARREN SCHULTZ, GERARDO GUTIERREZ; and DOES 1-5 inclusive, Defendants.

ORDER ON PLAINTIFFS' MOTION FOR LEAVE TO AMEND THE COMPLAINT

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Plaintiffs' Motion to Modify the Court's Pre-Trial Order, for Leave to Amend the Complaint and to Add Plaintiff. Dkt. 77. The Court has reviewed the pleadings filed regarding the motion and the remaining file.

This case arises from a September 7, 2010 police officer involved shooting that resulted in the death of military veteran Nikkolas Lookabill, who suffered from post traumatic stress disorder. Dkt. 34. Plaintiffs bring constitutional claims pursuant to 42 U.S.C. ยง 1983 and a claim under the Americans with Disabilities Act ("ADA"). Id.

I. FACTS

A. BASIC FACTS

According to the Second Amended Complaint, on September 7, 2010, Nikkolas Lookabill, a military veteran of Operation Iraqi Freedom who had been suffering from a post-traumatic mental illness, was walking south along Fruit Valley Road from N.W. 31st Street in Vancouver, Washington. Dkt. 34, at 4. Mr. Lookabill had a handgun. Id. He got into an argument, and the police were called. Id., at 5. City of Vancouver police officers responded, and Mr. Lookabill was shot and killed. Id., at 13.

B. PROCEDURAL HISTORY

On April 14, 2013, Frank Wescom, Jr., the estate's representative, filed a Claim for Damages with Clark County's Risk Management under RCW 4.96.020. Dkt. 20.

On May 29, 2013, Plaintiffs filed a complaint in federal court regarding this matter. Nikkolas Wren Kenneth Lookabill, et al. v. City of Vancouver, Western District of Washington case number 13-5408 RJB, Dkt. 1. It was voluntarily dismissed without prejudice (Dkt. 8) and a minute order closing the case was entered (Dkt. 9). Nikkolas Wren Kenneth Lookabill, et al. v. City of Vancouver, Western District of Washington case number 13-5408 RJB.

Plaintiffs refiled the case on June 11, 2013. Nikkolas Wren Kenneth Lookabill, et al. v. City of Vancouver, Western District of Washington case number 13-5408 BHS. The case was initially assigned to U.S. District Court Judge Benjamin Settle, and reassigned to this Court on June 27, 2013.

On August 20, 2013, Plaintiffs filed an Amended Complaint. Dkt. 13. Defendants filed their Answers to the Amended Complaint on September 3, 2013 (Dkts. 14 and 15) and filed Amended Answers to the Amended Complaint on September 12, 2013 (Dkts. 16 and 17).

On October 24, 2013, the Defendants' Motion for Summary Judgment was denied, in part, and granted, in part. Dkt. 33. Plaintiffs' state law claims were dismissed, and Plaintiffs' motion to amend their Amended Complaint was granted. Id.

The Second Amended Complaint, filed on November 4, 2013, asserts claims against the individual officers for violation of: 1) Mr. Lookabill's Fourth Amendment rights against an unreasonable seizure by "detaining [him] for more than half an hour and keeping Lookabill face down in the rain;" 2) Mr. Lookabill's Fourth and Fourteenth Amendment rights against the use of excessive force, and 3) Mr. Frank Wescom's and Mr. Gage Wescom's First Amendment right to family unity. Dkt. 34. Plaintiffs also make claims against the City of Vancouver. Id.

Defendants then moved for summary judgment, arguing that all federal claims against the individual officers should be dismissed because they did not violate anyone's constitutional rights. Dkts. 38 and 74. They argued that even if there was a constitutional violation under the facts alleged, the law was not ...


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