The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Motion to Dismiss Complaint filed by Defendant Mike Brown (Doc. #7).
On February 4, 2009, Plaintiff Kimberly Querry initiated this action by filing the Complaint against Officer Smale and Mike Brown (Doc. #1). The Complaint alleges Smale was an employee of the California Highway Patrol ("CHP"), and Brown was the Commissioner of CHP. The Complaint alleges Brown was responsible for setting policy within CHP as the decision maker.
The Complaint alleges that on February 9, 2008, Smale pulled Querry over for speeding on Highway 67 in San Diego County. The Complaint alleges Smale conducted a breathalyzer test, and told Querry she was being arrested for driving under the influence. The Complaint alleges Querry complied with all directions and did not resist. The Complaint alleges Querry asked Smale not to twist her arm behind her back in order to handcuff her because she had a fractured humerus and could not put her arms behind her back. The Complaint alleges Smale told Querry this maneuver was "protocol" and ignored Querry's plea and twisted her arm. Complaint, ¶ 28. The Complaint alleges Querry then heard a loud pop and felt a sharp pain in her shoulder and she cried out in pain. The Complaint alleges Querry asked Smale to take the handcuffs off and put them in front of her body and Smale refused, telling her "that's our procedure." Id.at ¶ 33. The Complaint alleges Querry told Smale repeatedly that she was in excruciating pain, but he did not remove the handcuffs.
The Complaint alleges "Defendants and DOES 1-20, inclusive, acting under color of state law, deprived Kimberly Querry of her rights under the United States Constitution to be free from the use of excessive force by law enforcement and punishment without due process of law." Complaint, ¶ 45. The Complaint alleges "Defendants, as a matter of custom, practice and policy, failed to adequately and properly screen and hire the defendant employees," and that this failure "was deliberately indifferent to the Constitutional rights of plaintiff and done with conscious disregard for the dangers of harm and injury to the plaintiff." Id. at¶¶ 81, 82. The Complaint alleges "[t]hese defendants failed to provide adequate training and supervision to CHP officers" and "failed to promulgate and enforce adequate policies and procedures related to the use of handcuffs on injured citizens." Id. at ¶¶ 89-90. The Complaint alleges "Defendants failed to supervise officers to prevent, deter and punish the unconstitutional and excessive use of force in effecting arrests," and "[s]aid custom, practice and policy included a failure to adequately investigate, supervise and discipline offending officers." Id. at ¶¶ 94, 95.
The Complaint alleges the following causes of action: (1) excessive force pursuant to 42 U.S.C. § 1983 against Smale and Brown; (2) California civil rights violation pursuant to Unruh Act against Smale and Brown; (3) assault and battery against Smale; (4) intentional infliction of emotional distress against Smale; (5) negligence against Smale and Brown; (6) negligent infliction of emotional distress against Smale and Brown; (7) failure to properly screen and hire pursuant to 42 U.S.C. § 1983 against Brown; (8) failure to train pursuant to 42 U.S.C. § 1983 against Brown; (9) failure to supervise and discipline pursuant to 42 U.S.C. § 1983 against Brown and (10) Monell violation pursuant to 42 U.S.C. § 1983 against Brown.
On May 22, 2009, Plaintiff voluntarily dismissed the Monell violation claim (Doc. #15).
On April 6, 2009, Defendant Brown filed the Motion to Dismiss (Doc. #7). Brown moves to dismiss the Complaint against Brown for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On May 25, 2009, Plaintiff filed the Opposition to the Motion to Dismiss (Doc. # 12). Plaintiff opposes the Motion to Dismiss on grounds that the Complaint does state a claim with respect to each of these causes of action. On June 1, 2009, Defendant Brown filed a Reply (Doc. # 17).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. See De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the right to relief above the speculative level. See Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1965 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show that the pleader is entitled to relief. See id. (citing Fed R. Civ. P. 8(a)(2)). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003); see also Chang v. Chen, 80 F.3d 1293 (9th Cir. 1996).
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While the Federal Rules adopt a flexible pleading policy, every complaint must, at a minimum, "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Twombly, 127 S.Ct. at 1964 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a motion to dismiss the complaint must plead sufficient factual matter, taken in the light most favorable to the moving party, that "is plausible on its face." Twombly, 127 S. Ct at 1955.
I. Section 1983 Claims: First, Seventh, Eighth and Ninth ...