The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss (Doc. 14). Plaintiff filed an opposition to the motion (Doc. 18).
This case proceeds on plaintiff's first amended complaint (Doc. 6). Plaintiff is proceeding in this action in pro per and in forma pauperis. As plaintiff is proceeding in forma pauperis, the court was required to screen plaintiff's complaint. Upon screening, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2). The court found plaintiff's amended complaint sufficiently stated a claim for violations of plaintiff's First Amendment (retaliation) and Fourth Amendment (search and seizure) rights. It failed to state a claim, however, for a violation of his Fourth Amendment invasion of privacy claim and Fifth Amendment failure to advise claim. Accordingly, on May 5, 2008, the court issued an order dismissing his Fourth and Fifth Amendment claims for invasion of privacy and failure to advise, as well as dismissing defendants Roberts, Lopey, and the California Highway Patrol. This case proceeds against defendant Shouse on plaintiff's federal claims of retaliation and violation of his rights against unreasonable search and seizure. As the court is only exercising supplemental jurisdiction over plaintiff's state law claims, screening of those claims was unnecessary. The defendant thereafter filed his motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, requesting the court dismiss several of plaintiff's state law claims for failure to state a claim and because defendant is immune.
In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct 2197 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007). Allegations of specific facts are not necessary so long as the statement of facts gives the defendant fair notice of what the claim is and the grounds upon which it rests. See id., Erickson, 127 S.Ct. at 2200.
To determine whether a complaint states a claim upon which relief can be granted, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Finally, leave to amend must be granted ". . . [u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
Plaintiff's amended complaint sets forth six "state law pendent claims." At issue here are four of plaintiff's state law claims: negligence, emotional distress, right to privacy, and malicious prosecution.*fn1 Under his claim for willful negligence, plaintiff alleges defendant negligently and willfully violated the Constitution and laws of the United States, and of the State of California in order to improperly deprive Plaintiff of his personal freedom, to defame, harass, oppress, and annoy Plaintiff, and to subject him to retaliatory/ malicious prosecution.
First Amended Complaint (FAC) at 18.
Plaintiff's claim of negligent and/or willful infliction of emotional distress, alleges that defendant's conduct was willful, wanton, and/or negligent in that it was undertaken by them with reckless disregard and wanton indifference to the rights and privileges secured to Plaintiff by the Constitution and laws of the United States, and the State of California, was executed by abusing a position of authority and control over the Plaintiff, was calculated to cause, and in fact caused, intimidation and extreme emotional and psychological pain and distress to Plaintiff.
The claim for violation of plaintiff's right to privacy states the defendant did improperly and illegally detain, arrest, and cause the imprisonment of Plaintiff as he traveled upon the highways of the State of California and the United States, and additionally subjected him to interrogation concerning his personal habits and search of his papers, thus ...