The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
Defendants City of Petaluma, Officer Mike Pierre and Officer John Antonio (collectively, City Defendants) and County of Sonoma and Deputy Sheriffs Dave Tait, John Buergler, Mike Middleton, Shawn Murphy and Mittenthal (collectively, County Defendants) separately move to dismiss pro se Plaintiff David William Pimentel's first amended complaint (FAC) under Federal Rules of Civil Procedure 12(b)(6) and Rule 12(e). Plaintiff has not filed an opposition to the motions.*fn1
Having considered the papers filed by Defendants, the Court grants Defendants' motions to dismiss with prejudice.
Plaintiff's claims arise from an August 6, 2002 incident in which, according to the FAC, Plaintiff was assaulted with a taser deployment gun by Officer Pierre and with pepper spray by Deputy Sheriffs Tait and Buergler while hunting wild game on unposted property.
Plaintiff's original complaint listed nine causes of action, each referring to many different potential claims, generally brought against all Defendants. The County and City Defendants moved separately to dismiss on grounds, among others, that the federal claims were barred by the statute of limitations and failed properly to allege municipal liability under Monell v. New York Dep't of Soc. Serv., 436 U.S. 658, 690-91 (1978), and that, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) and Susag v. City of Lake Forrest, 94 Cal. App. 4th 1401 (2002), the Court lacked jurisdiction to consider either the federal or State claims. Defendants also moved to dismiss for failure to meet the requirements of Federal Rule of Civil Procedure 8(e). On these bases, the Court dismissed the complaint with leave to amend. May 23, 2005 Order Granting Defendants' Motions to Dismiss. In its order, the Court set forth specific instructions for Plaintiff to follow in any FAC. The relevant instructions are detailed in the discussion section below.
Plaintiff filed his FAC on June 27, 2005. The FAC includes two claims under 42 U.S.C. § 1983 for violation of his rights under the Fourth and Fourteenth Amendments. The first claim is brought against the City Defendants, and the second claim against the County Defendants.
A motion to dismiss for failure to state a claim will be denied unless it is "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Falkowski v. Imation Corp., 309 F.3d 1123, 1132 (9th Cir. 2002), citing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." Fed. R. Civ. P. 8(e). These rules "do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds on which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).
When granting a motion to dismiss, a court is generally required to grant a plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment would be futile, a court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Leave to amend should be liberally granted, but an amended complaint cannot allege facts inconsistent with the challenged pleading. Id. at 296-97.
The County Defendants move to dismiss Plaintiff's claim against them on the grounds that the individual County Defendants' use of pepper spray against him was not a separate and distinct incident from the events which led to Plaintiff's conviction, and thus Plaintiff's complaint about it is barred by Heck.
In its May 23, 2005 order, the Court explained that Plaintiff could not bring any claim of excessive force allegedly used against him during the course of the events on which ...