ORDER AND FINDINGS AND RECOMMENDATIONS
Presently pending before this court is the motion of defendant Gary Dahl to dismiss plaintiff's amended complaint filed November 4, 2008, Dckt. Nos. 19, 7, following defendant's removal of this case from Sacramento County Superior Court on October 24, 2008, Dckt. No. 1. Also pending are several responsive documents and "motions" filed by plaintiff, Dckt. Nos. 20, 22-23, 25-29, 31, 33-41, which the court construes as plaintiff's statements of opposition to the motion to dismiss.
For the following reasons, the court recommends that defendant's motion be granted in part and denied in part, and that plaintiff be accorded the opportunity to file a second amended complaint.
Plaintiff alleges in his amended complaint, Dckt. No. 7, that on October 27, 2007, while he and a "witness" were sitting in a vehicle parked in front of the witness' residence in Sacramento, California, the two were approached by "brown car . . . with K-9 apparel trailing behind . . ." Compl., at 2-3. "No sirens were sounded as defendant, G. Dahl #672, unlawfully pulled over on the opposite side of the street from where plaintiff and witness were. . . . parked and exited his K-9 vehicle," and approached the car in which plaintiff sat. Id. at 3. "Without even asking for valid I.D. nor any identification, defendant G. Dahl #672 then steadily determined and falsely accused plaintiff with an attitude of a matter or matters that plaintiff doesn't involve his self in that plaintiff shouldn't have been approached . . . without cause." Id.
"[D]efendant asked plaintiff for approval of search as defendant seem[ed] to already have intentions on doing without justification. Without hesitation plaintiff followed the violating order and exited the vehicle with a broken left leg, ankle and toe on crutches then defendant began to search. Upon search, defendant G. Dahl #672, applied too much pressure to plaintiff's broken left leg causing extreme pain to plaintiff's left broken leg. As plaintiff was being searched, witness phoned plaintiff[']s mother by cell phone in from of the search, as office made rude comments, "who you calling 911, call 911!" Id. at 3-4.
"Plaintiff was informed by defendant, Officer G. Dahl #672, that plaintiff had an active misdemeanor warrant that was supposed to be reissued and cleared for a set court date by Grant Joint Union School District Police Service Division Officer C. Breck #203 [not a defendant] August 16 of 2008. After the detention upon the police misconduct with no valid reason of harassment, plaintiff and witness were let go." Id. at 4.
On this set of facts, plaintiff claims generally the "violation of his civil rights under the First (1), Six (6) and Fourteenth (14) Amendment[s] of the Constitution of the United States, pursuant to 42 U.S.C. 1983." Id. at 1. In the body of his complaint, plaintiff lists and addresses two causes of action, both entitled in "Violation of Civil Rights Pursuant to 42 U.S.C. 1983." Id. at 2, 5. The first cause of action expressly challenges defendant Dahl's "stop," because "officers had no reason to initiate stop," and the search of plaintiff "without cause." This portion of the complaint further alleges "that even if the officers had justification to detain him, they were only justified in the exercise of police misconduct to facilitate the detention and that their actions in harassing, false accusation, belittled and then ridiculed use for the express purpose of causing plaintiff agony and severe stress was an unnecessary excessive use of force being applied to plaintiff's left leg was not justified by the circumstances. . ." Plaintiff contends, that as "a direct and proximate result . . . plaintiff experienced personal injuries, pain and suffering, emotional trauma including extreme fear, anxiety, and trauma, loss of income and loss of future income." Id. at 4.
Plaintiff's second cause of action alleges that, during these events, another officer remained in the patrol car and failed to intervene. Generally referred to as "John Doe 1 to 50," plaintiff describes this officer as "wearing a blue shirt with slacks and a tie," and states that he watched Dahl, but refused to make eye contact with plaintiff, or intervene in the conduct of Officer Dahl, and then resumed working on his computer. Id. at 6, 7. Plaintiff describes both defendants as Caucasian. Id. at 6.
Plaintiff has included in his complaint an allegation that defendants acted under color of state law, and that plaintiff suffers from a mental disability, thus rendering his experience more traumatic. Id. at 6, 7.
As to each cause of action, plaintiff seeks the following relief: "(1) Judgment against defendants in an amount to be determined by the court up to [$]3,000,000.00; (2) For cost of suit; and (3) For any such other and further relief as the court deems just and proper." Id. at 5, 8.
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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, 1965 (2007). "'The pleading must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action.'" Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (internal punctuation omitted). Rather, to avoid a Rule 12(b)(6) dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (quoting Bell, at 127 S.Ct. at 1974).
Dismissal may be based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The complaint's factual allegations are accepted as true. Church of Scientology of California v. Flynn, 744 F.2d 694 (9th Cir. 1984). The court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include specific facts necessary to support the claim. NOW, Inc. v. Schiedler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court may disregard allegations contradicted by the complaint's attached exhibits. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). Furthermore, the court is not required to accept as true allegations contradicted by judicially noticed facts. Mullis v. U.S. Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). The court may consider matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986) (abrogated on other grounds by Astoria Federal Savings and Loan Ass'n v. Solimino, 501 U.S. 104 (1991)). Finally, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences or unwarranted deductions of fact.
Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and an opportunity to amend the complaint before dismissal without leave to amend. Lopez v. Smith, 203 F.3d 1122, ...