The opinion of the court was delivered by: William A Lsup United States District Court
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
In this Section 1983 action, pro se plaintiff Ivan Hopkins sues defendants California Department of Corrections and Rehabilitation, James Tilton (former Secretary of the CDCR), and Agent Scott Pang for using excessive force during a wrongful arrest. Defendants the CDCR and Tilton move to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons stated below, the motion is GRANTED without leave to amend.
The well-pled allegations in the complaint are accepted as true. On February 28, 2007, Agent Pang and another unknown agent jumped out of a vehicle and rushed towards Mr. Hopkins. They pushed and shoved plaintiff, causing severe injury to his shoulder. They accused Mr. Hopkins of being a parolee at large, even though he was not; plaintiff had been discharged from parole a year before this incident. Mr. Hopkins currently is not in custody.
In February 2008, Mr. Hopkins filed suit against the CDCR, James Tilton, and Agent Pang for using excessive force during a wrongful arrest. In his complaint, he alleged that he was subjected to "unnecessary and wanton infliction of physical injury, pain and emotional distress as a result of the cruel and unusual punishment," and that defendants "acted knowingly, willfully and maliciously and with reckless and callous disregard for plaintiffs [sic] federally protected rights" (Compl. ¶¶ 4--5). The complaint did not mention any statute. Plaintiff seeks compensatory damages, costs, and current and future reimbursement for medical bills.
The hearing on defendants' motion to dismiss was originally set for July 10, 2008.
Because plaintiff Hopkins did not file a timely opposition in accordance with the civil local rules, the hearing was continued until July 17, 2008, to give him an extra week.*fn1
Defendants argue that Mr. Hopkins has failed to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Business v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). All material allegations of the complaint are taken as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 340 (9th Cir. 1996). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1255, 1264-65 (2007).*fn2
Mr. Hopkins does not mention any statute in his complaint. He asserts that Agent Pang "was at all times acting under color of state law" (Compl. ¶ 2). This order assumes that he asserts his claims pursuant to 42 U.S.C. 1983. This order now reviews his claims against the CDCR and James Tilton.
At the time of the alleged wrongful arrest, Tilton was the Secretary of CDCR. "Liability under section 1983 arises only upon a showing of personal participation by the defendant. A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The complaint makes no allegation that Tilton participated in, directed, knew of, or failed to act to prevent any of the violations. As a matter of fact, Tilton is not even mentioned in the text of the complaint.
Accordingly, the claim against Tilton is dismissed. Mr. Hopkins also names the CDCR as a defendant in his complaint. The Supreme Court has held that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). This holding "applies only to States or governmental entities that are considered 'arms of the state' for Eleventh Amendment purposes." Id. at 70. The CDCR is an "arm of the state." See Bennett v. People of State of Cal., 406 F.2d 36, 39 (9th Cir. 1969). Consequently, the CDCR is not a person within meaning of Section 1983. Mr. Hopkin's claim against the CDCR is also dismissed.
In his two-page opposition, Mr. Hopkins reiterates the allegations in his complaint. He says that the wrongful arrest with excessive force violated his civil rights. He cites to Turman v. Jordan, 405 F.3d 202 (4th Cir. 2005) (a deputy sheriff was not entitled to qualified immunity on an unreasonable seizure claim and an excessive force claim), and Baurer v. Norris, 713 F.2d 408 (8th Cir. 1983) (holding that deputy sheriff was liable to plaintiffs under Section 1983 because either the use of any force in the course of his encounter and arrests of plaintiffs was unreasonable or he used force not to perform his lawful duty but for some other improper purpose). Neither of these decisions are contrary to defendants' arguments, as Turman ...