The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE DENIED IN PART AND GRANTED IN PART, AND PLAINTIFF BE GRANTED LEAVE TO AMEND STATE LAW BATTERY CLAIM
OBJECTIONS DUE WITHIN FIFTEEN DAYS
Findings and Recommendations on Defendants' Motion to Dismiss
Plaintiff Gerald Taylor ("Plaintiff") is a state prisoner proceeding in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and California tort law. This action is proceeding on Plaintiff's amended complaint, filed June 20, 2007, against Defendant McKesson for battery and use of excessive physical force in violation of the Eighth Amendment; against Defendant Wofford for failure to protect Plaintiff, in violation of the Eighth Amendment; and against Defendants Adams and Clark under a theory of supervisory liability. On August 5, 2008, Defendants McKesson, Wofford, Adams and Clark ("Defendants") filed a motion to dismiss for failure to state a claim and for failure to exhaust. Fed. R. Civ. P. 12(b). Plaintiff filed an opposition on November 4, 2008, and Defendants filed a reply on December 15, 2008. Local Rule 78-230(m).
II. Reliance on Exhibits Attached to Original Complaint
In support of their motion to dismiss, Defendants cite to the exhibits submitted in support of Plaintiff's original complaint, which was superceded by the filing of the amended complaint upon which this action proceeds. However, in their reply and without citation to any authority, Defendants cry foul over Plaintiff's citation to the same exhibits in his opposition to their motion, and argue Plaintiff's use of the exhibits is improper. Defendants assert they were not served with the exhibits and cited to them in their moving papers by mistake because they believed the exhibits were filed with the amended complaint.
Defendants may not both rely on the exhibits in their motion and complain Plaintiff is improperly relying on them in responding to Defendants' motion. Plaintiff's amended complaint superceded the original complaint and because the amended complaint did not include exhibits and Plaintiff did not obtain permission from the Court to remove the exhibits from the original complaint and attach them to the amended complaint, Local Rule 15-220, the exhibits are not part of Plaintiff's amended complaint and will not be considered by the Court in resolving Defendants' motion to dismiss, Manzarek v. St. Paul Fire & Marine Ins. Co., 519 1025, 1030-31 (9th Cir. 2008) (in resolving motions to dismiss, courts are generally limited to considering allegations in the pleading, exhibits attached to the pleading, and facts properly subject to judicial notice); contra Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) ("However, in order to [p]revent [ ] plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting ... documents upon which their claims are based, a court may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." (internal quotations and citations omitted)). Defendants are cautioned that in the future, if they mistakenly rely on matters outside the pleadings and wish to retract their reliance in their moving papers, the proper response is to withdraw their motion in whole or in part. Defendants' decision to criticize Plaintiff's use of the exhibits when they did so first rather than to simply take ownership of their initial error and request that their citation to the exhibits be disregarded falls below the level of civility and fair play the Court expects from practitioners appearing before it.
III. Motion to Dismiss for Failure to State a Claim
A. Legal Standard for Motions Brought Pursuant to Rule 12(b)(6)
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), and the Court's role in reviewing the complaint for sufficiency is limited, Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Rule 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. A Court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))).
B. Excessive Force Claim Against Defendant McKesson
The Court has a statutory duty to screen complaints in cases such as this and dismiss any claims that fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A. Because Plaintiff's claims have already been reviewed for sufficiency at the pleading stage, the Court is ...