The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on (1) defendant State of California's (the "State") motion to dismiss plaintiffs James Brady Peter and James Russell Peter's ("plaintiffs") amended complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6)*fn1 (Docket #9) and (2) defendant California Highway Patrol Officer James Stowe's motion to dismiss plaintiffs' amended complaint, pursuant to Rule 12(b)(6) (Docket #10).*fn2 Plaintiffs do not oppose the State's motion, conceding that plaintiffs' claims asserted against the State are barred by Eleventh Amendment immunity. (See Opp'n, filed Dec. 30, 2008, at 1:18-24.) As such, the court GRANTS the State's motion to dismiss (Docket #9), and the State is hereby dismissed from this action as a party-defendant. As to defendant Stowe's motion, the court GRANTS the motion, but plaintiff is permitted leave to file a second amended complaint to allege compliance with the California Tort Claims Act ("CTCA"), Cal. Gov't Code § 945.4.
In this action, plaintiffs allege they were arrested without probable cause and that excessive force was used by defendant Stowe in arresting them. (Am. Compl., filed Nov. 7, 2008.) More specifically, plaintiffs allege that on September 9, 2007 at "North Arm roadblock," plaintiffs were in their truck attempting to return to their ranch property when they were assaulted by Stowe. (Id. at ¶ 6.) Plaintiff James Russell Peter alleges Stowe sprayed pepper spray in his face and struck him in the head and body with a baton, causing him physical injuries. (Id.) Plaintiff James Russell Peter alleges Stowe arrested him without probable cause. (Id.) Similarly, plaintiff James Brady Peter alleges Stowe sprayed pepper spray in his face and handcuffed and arrested him without probable cause. (Id.) Plaintiffs allege that "unknown Plumas Deputies" were present during the attack by Stowe but did not nothing to protect plaintiffs and instead drew their weapons and aimed them at plaintiffs. (Id.) Plaintiffs allege they were incarcerated and were never taken before a magistrate judge. (Id. at ¶ 7.) Plaintiffs assert they were ultimately released, and no criminal charges were filed against them in connection with these arrests. (Id.)
Plaintiffs assert damages claims against defendants for (1) violation of their civil rights pursuant to 42 U.S.C. § 1983; (2) intentional infliction of emotional distress; (3) assault and battery; and (4) false imprisonment and false arrest.
On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.
Nevertheless, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).
Ultimately, the court may not dismiss a complaint in which the plaintiff alleged "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1973 (2007). Only where a plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. "[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." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hudson v. King & Spalding, 467 U.S. 69, 73 (1984)).
1. Plaintiffs' § 1983 Claim Against Defendant Stowe
Defendant Stowe moves to dismiss plaintiffs' Section 1983 claim against him to the extent it is based on alleged violations of the Fifth, Sixth or Fourteenth Amendments.*fn3 Defendants contend that because the gravamen of plaintiffs' complaint against Stowe is an excessive force claim, plaintiffs' Section 1983 claim is properly asserted only on the basis of the Fourth Amendment. Defendants are correct.
Plaintiffs may not assert a due process claim, based on either the Fifth or Fourteenth Amendments, against Stowe because the United States Supreme Court has held that where a particular Amendment provides an explicit textual source of constitutional protection against a particular source of government behavior, that Amendment, and not the more generalized notion of substantive due process, is the proper basis for a Section 1983 claim. Albright v. Oliver, 510 U.S. 266, 271 (1994). In Albright, the Court held that the Fourth Amendment's protection against unlawful search and seizures controls a claim alleging unlawful arrest not the broader notion of due process embodied in the Fifth and Fourteenth Amendments. Id.
Plaintiffs also cannot base their Section 1983 claim on a violation of the Sixth Amendment. The Sixth Amendment is not implicated until a plaintiff is subject to adversarial criminal proceedings. See United States v. Gouveia, 467 U.S. 180, 181 (1984). Here, plaintiffs allege that they were never charged with a crime. (Am. Compl., ¶ 7.) The ...