The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND MOTION TO DISMISS AND MOTION DENYING IN PART DEFENDANTS' ORDER GRANTING IN PART AND FOR A MORE DEFINITE STATEMENT (DOC. 5) IN BOTH PERSONAL AND FRESNO, OFFICIAL CAPACITIES, CITY OF
Plaintiff Ernest Hector Abeytia ("Abeytia"), proceeding in pro per, filed a complaint against the City of Fresno, the Fresno Police Department, Officer Gene Johnson, and Does 1-100 in the Superior Court of the State of California, County of Fresno, on May 28, 2008. Plaintiff asserts a claim under 42 U.S.C. § 1983 for excessive force, alleging violation of his Fourth and Fourteenth Amendment rights, in addition to various state law claims. After being served with notice of the action on or about September 9, 2008, Defendants filed a notice of removal on October 9 pursuant to 28 U.S.C. § 1441(b) based on federal question jurisdiction. Before the court for decision is Defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, a motion for a more definite statement pursuant to Fed. R. Civ. P. 12(e), based on the following grounds: 1) Plaintiff has failed to state a claim for a Fourteenth Amendment substantive due process violation, 2) Plaintiff has failed to state a claim for an equal protection violation, 3) Plaintiff has failed to allege valid claims pursuant to 42 U.S.C. §§ 1986 and 1988, 4) Plaintiff has failed to sufficiently plead a Monell claim, 5) Plaintiff's claim against the Fresno Police Department is improper, 6) Plaintiff has failed to properly plead his state law claims for negligence as to the City of Fresno and for intentional infliction of emotional distress, and 7) it is unclear whether Plaintiff's third cause of action asserts a claim under Cal. Civ. Code § 51 or § 52(b) or some other section.*fn1
Plaintiff has not filed an opposition to the motion to dismiss or a statement of non-opposition. On December 12, 2008, Plaintiff was directed by court order to file a written opposition or statement of non-opposition by January 12, 2009. (Doc. 7.) He ignored this order.
On May 9, 2007, Defendant Johnson was on duty as a Fresno Police Department Officer. (Doc. 2-2, Complaint at ¶12.) At approximately 6:30 a.m. on May 9, 2007, Fresno Police Department officers were executing a search warrant on an individual who lived at a residence located next door to 3061 E. El Monte Way in Fresno, California. Plaintiff exited the back of the residence located at 3061 E. El Monte Way, walked through the backyard, and entered the alley where he was confronted by three Fresno Police Department officers who yelled, "get on your knees, Fresno P.D." Plaintiff alleges he immediately got on his knees and put his hands in the air and said, "I know who you are." (Doc. 2-2, Complaint at ¶13.)
Plaintiff alleges that Defendant Johnson then let loose of his canine and ordered the dog to attack Plaintiff thereby willfully, maliciously, unlawfully, and intentionally using excessive force against Plaintiff. Plaintiff further alleges that, despite his attempt to hold the dog off and beg the officers to pull the dog off him, he was attacked and bitten at least four separate times on his right leg, resulting in numerous painful lacerations and puncture wounds to his right leg. Plaintiff alleges Defendant Johnson eventually pulled the dog off Plaintiff but Johnson then kicked Plaintiff twice in the upper part of his body. (Doc. 2-2, Complaint at ¶13.)
Plaintiff states this action is "brought pursuant to 42 U.S.C. §1981, §1983, §1985, §1986, §1988, 28 U.S.C. §1343, the Fourth and Fourteenth Amendments of the United States Constitution and other applicable laws as may be determined."
(Doc. 2-2, Complaint at 2.) In the body of his complaint, he asserts his first cause of action for violation of 42 U.S.C. § 1983, alleging violation of his Fourth and Fourteenth Amendment rights. His second cause of action is for assault and battery. He asserts a third cause of action for "Interference with Civil Rights (Tom Banes Civil Rights Act)," and references Cal. Civ. Code §§ 51 and 52(b) in describing his third cause of action. He alleges a fourth cause of action for intentional infliction of emotional distress and a fifth cause of action for negligence and negligent infliction of emotional distress. Plaintiff prays for general and special damages, exemplary or punitive damages, a statutory civil penalty of $25,000 as provided for in Cal. Civ. Code § 52(b), and attorney's fees.
A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, it is required to contain "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, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007); see also Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (issue is not whether plaintiff will ultimately prevail, but whether claimant is entitled to offer evidence to support the claim). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In deciding a motion to dismiss, the court accepts as true all material factual allegations in the complaint and construes them in the light most favorable to the plaintiff. See Newman v. Sathyavaglswaran, 287 F.3d 786, 788 (9th Cir. 2002).
The court need not accept as true allegations that contradict facts which may be judicially noticed. See Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). For example, matters of public record may be considered, including pleadings, orders, and other papers filed with the court or records of administrative bodies, see Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), while conclusions of law, conclusory allegations, unreasonable inferences, or unwarranted deductions of fact need not be accepted. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) ("[A] document is not 'outside' the complaint if the complaint specifically refers to the document and if its authenticity is not questioned."). Allegations in the complaint may be disregarded if contradicted by facts established by exhibits attached to the complaint. Sprewell, 266 F.3d at 988. Thus when ruling on a motion to dismiss, the court may consider facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court may take judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1988).
Pro se complaints are held to less stringent standards than formal pleadings by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). A court must construe a pro se plaintiff's "inartful pleading" liberally in determining whether a claim has been stated, including pro se motions as well as complaints. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). This is especially true when a plaintiff appears pro se in a civil rights case. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). While a pro se litigant must follow the same rules of procedure that govern other litigants, King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), "[d]ismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988).
B. Motion for a More Definite Statement Pursuant to Fed. R. Civ. P. 12(e)
Federal Rule of Civil Procedure 12(e) provides:
pleading to which a responsive pleading is allowed but A party may move for a more definite statement of a reasonably prepare a response. The motion must be made which is so vague or ambiguous that the party cannot before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 10 days after notice of the order. strike the pleading or issue any other appropriate order or within the time the court sets, the court may
A Rule 12(e) motion for a more definite statement must be considered in light of the liberal pleading standards of Rule 8(a) in federal court. See Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (C.D. Cal. 1996) (citing Sagan v. Apple Computer, Inc., 874 F.Supp. 1072, 1077 (C.D. Cal. 1994)) ("Motions for a more definite statement are viewed with disfavor and are rarely granted because of the minimal pleading requirements of the Federal Rules."). Under the liberal pleading standards, "pleadings in the federal courts are only required to fairly notify the opposing party of the nature of the claim." A.G. Edwards & Sons, Inc. v. Smith, 736 F.Supp. 1030, 1032 (D. Ariz. 1989).
A Rule 12(e) motion is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted, meaning the complaint is so vague that the defendant cannot begin to frame a response. See Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D. Cal. 1981); Boxall v. Sequoia Union High Sch. Dist., 464 F.Supp. 1104, 1114 (N.D. Cal. 1979). The motion must be denied if the complaint is specific enough to notify defendant of the substance of the claim being asserted. San Bernardino Pub. Employees Ass'n v. Stout, 946 F.Supp. 790, 804 (C.D. Cal. 1996) ("A motion for a more definite statement is used to attack unintelligibility, not mere lack of detail, and a complaint is sufficient if it is specific enough to apprise the defendant of the substance of the claim asserted against him or her."). The motion should be denied if the detail sought by a motion for more definite statement is obtainable through discovery. Davison v. Santa Barbara High Sch. Dist., 48 F.Supp.2d 1225, 1228 (C.D. Cal. 1998).
Plaintiff brings this lawsuit under 42 U.S.C. § 1983, which provides a cause of action "against any person acting under color of law who deprives another 'of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003)(quoting 42 U.S.C. § 1983). "The rights guaranteed by section 1983 are 'liberally and beneficently construed.'" Id. (quoting Dennis v. Higgins, 498 U.S. 439, 443 (1991)).
Pursuant to 42 U.S.C. § 1983, Plaintiff may bring a civil action for deprivation of rights under the following circumstances:
ordinance, regulation, custom, or usage, of any Every person who, under color of any statute, State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the equity, or other proper proceeding for redress, party injured in an action at law, suit in except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive decree was violated or declaratory relief was relief shall not be granted unless a declaratory unavailable.
To establish liability under § 1983, a plaintiff must show: 1) that he has been deprived of a right secured by the United States Constitution or a federal law, and 2) that the deprivation was effected "under color of state law." Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).
1. Fourteenth Amendment Substantive Due Process Claim
Plaintiff asserts an excessive force claim, alleging he "suffered serious bodily and emotional harm, which is in violation of his rights to be free from unreasonable searches and seizures as provided by the Fourth and Fourteenth Amendments to the United States Constitution...." (Doc. 2-2, Complaint at ¶14.) He further states he was deprived of his constitutional rights "including, but not limited to his right under the Fourth and Fourteenth Amendments to be secure in his person, to be free from the use of unjustified force, to be free from summary punishment without due process, and to equal protection of the laws." (Id. at ¶15.) Defendants attack the Fourteenth ...