The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendants Elk Grove Unified School District (the "District") and Elk Grove Unified School District Police Department's (the "Police Department") (collectively, "defendants")*fn1 motion to dismiss plaintiffs Thomas Ludavico, Sr., Thomas Ludavico, Jr. and Ashley Ludavico's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn2
By their motion, defendants contend (1) plaintiffs' federal claims under 42 U.S.C. § 1983 must be dismissed because they are based on allegations of vicarious liability, which is not a viable theory of liability under Section 1983; (2) certain of plaintiffs' specific, constitutional claims alternatively fail because plaintiffs do not allege sufficient facts establishing the requisite elements for the claims or the claims are not cognizable as a matter of law; (3) minor plaintiffs Thomas Ludavico, Jr. and Ashley Ludavico's state law claims against defendants must be dismissed for failure to comply with the California Tort Claims Act ("CTCA"), Cal. Gov't Code § 905 et seq.; and (4) plaintiff Thomas Ludavico, Sr.'s state law claims asserted against defendants fail because plaintiffs do not allege a statutory basis for defendants' liability. Plaintiffs oppose the motion on all grounds but request leave to amend their complaint, should the court grant the motion in any respect.
For the reasons set forth below, the court GRANTS defendants' motion in its entirety. Plaintiffs, however, are permitted leave to amend with respect to certain issues described below.
Plaintiffs allege the facts giving rise to this case in one paragraph of their complaint: They allege that on May 14, 2007, defendants, while performing their duties to investigate whether plaintiff Thomas Ludavico, Sr. was a danger to himself or others, "brutally used excessive and reckless force" upon Thomas Ludavico, Sr. Plaintiffs allege defendants struck and beat plaintiff Thomas Ludavico, Sr.'s body and head using their fists, feet and other objects, including a Taser weapon, which they used to electrify and shock plaintiff's body.*fn3 These actions occurred, plaintiffs allege, in the presence of Thomas Ludavico, Sr.'s children, plaintiffs Thomas Ludavico, Jr. and Ashley Ludavico. (Compl., filed June 24, 2008, ¶ 20.)
On the basis of these allegations, plaintiffs assert eight claims for relief, specifically alleging the first, third, fifth, sixth and eighth claims against the moving defendants herein. Plaintiffs' first and third claims for relief assert constitutional violations pursuant to Section 1983, including violations of the Equal Protection Clause and the Due Process Clause as embodied in the Fifth and Fourteenth Amendments. (Id. at ¶s 22-23, 32-33.) Plaintiffs' fifth claim for relief alleges violation of the "laws of the State of California" and the "Constitutions of both the State of California and the United States" based on defendants' purported negligent hiring, training, supervision and retention of their employees. (Id. at ¶s 42-43.) Plaintiff's sixth claim for relief asserts a common law negligence claim against defendants, and the eighth claim for relief alleges common law claims of negligent and intentional infliction of emotional distress against defendants. (Id. at ¶s 46, 54-55.)
Defendants now move to dismiss these claims, pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted.
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 the 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' Section 1983 ...