Plaintiff is proceeding pro se with the above-captioned civil rights action, which was removed from state court on October 20, 2008. The case came before the court on March 6, 2009, for hearing on defendants' motion to strike portions of plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(f) (Doc. No. 19) and defendants' motion to dismiss plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 17). Plaintiff, Chaderick A. Ingram, proceeding pro se, appeared on his own behalf. Jason M. Sherman, Esq. appeared for the defendants. Upon consideration of all written materials filed in connection with the motion, the parties' arguments at the hearing, and the entire file, the undersigned concludes that defendants' motion to dismiss should be granted in part, plaintiff should be granted leave to file a second amended complaint and defendants' motion to strike should be granted.
Plaintiff initially filed his complaint against defendants Grant Joint Union High School District*fn1 and school district police officers Breck and Scott in the Sacramento County Superior Court on August 13, 2008. (Doc. No. 1 at page 5 of 9.) In that complaint plaintiff sought relief pursuant to 42 U.S.C. § 1983. On October 20, 2008, defendants removed the action to this court pursuant to 28 U.S.C. § 1441(b). On October 23, 2008, defendants moved to dismiss the complaint. In response to that motion, on October 31, 2008, plaintiff filed an amended complaint. (Doc. No. 14.) On November 6, 2008, the undersigned issued an order denying defendants' motion to dismiss as moot, providing defendants ten days to respond to the amended complaint. On November 19, 2008, defendants filed the pending motions to strike and dismiss. (Doc. Nos. 17 & 19.) Both motions were originally noticed for hearing on January 16, 2009. At that hearing the court noted plaintiff had failed to file written opposition to the pending motions. With no objection from defense counsel, the court continued the hearing to provide plaintiff additional time to file oppositions. On January 20, January 23 and February 13, 2009, plaintiff filed written oppositions. (Doc. Nos. 24, 25 & 26.) On February 26, 2009, defendants filed replies in connection with both pending motions. (Doc. Nos. 27 & 28.)
In his somewhat difficult to decipher amended complaint, plaintiff alleges that his rights under the First, Sixth, and Fourteenth Amendments were violated by the defendants.*fn2 In his first cause of action plaintiff alleges as follows. On August 16, 2007, at 2:00 p.m., plaintiff was sitting in his car parked at his residence. (Am. Compl. at 2.) He exited his car and started toward his residence, when he was startled by someone yelling "hey you." (Am. Compl. at 3.)
Plaintiff began to run and heard sirens and people yelling at him. (Id.) Upon realizing that he was being addressed by police officers, plaintiff turned and saw that officers had their weapons drawn and pointed at him and were instructing him to come to them. (Id.) Plaintiff walked toward a gate to get to where the officers were and, as he did so, defendant officers Breck and Scott and other officers grabbed plaintiff and pulled him by his shirt "over and off a fence" that was five foot high. (Id.) The officers slammed plaintiff to the pavement, breaking his left leg, ankle and toe, and then deliberately applied pressure to plaintiff's leg even after he had told them that they had broken it. (Id.) The officers detained him while conducting a warrant check; found a failure by plaintiff to appear in a driving without a license misdemeanor case and issued him a citation/promise to appear. Plaintiff went to the hospital immediately after the incident and was found to have suffered a broken leg. (Id.) Plaintiff asserts that defendants had no right to stop him in the first place. However, even if the stop was justified, he claims that the defendant officers had no right to use excessive force against him and especially no right to deliberately apply pressure to his broken leg for the sole purpose of causing him pain. (Id. at 4.)
The second cause of action of plaintiff's amended complaint is even more difficult to decipher. Therein, plaintiff appears to allege some of the same facts set forth above with respect to the August 16, 2007, incident. (Id. at 5-11.) However, although all relate to that incident, some of the factual allegations of the second cause of action are new and many would appear to be inconsistent with those alleged in the first cause of action. For instance, in his second cause of action plaintiff alleges that the defendant officers stopped him in the middle of an intersection before harassing him over an active misdemeanor warrant. (Id. at 6.) Plaintiff also alleges that from his own back yard he surrendered to three officers who were in the next door neighbor's yard. (Id. at 6-7.) Plaintiff claims that he sat down and lit the cigarette during this interchange and then peacefully approached the officers, who dragged him over the fence as soon as they could reach him. (Id.) He alleges that the officers then slammed him to the ground head first and that defendant Scott tried to choke him and placed his knee on the back of plaintiff's neck while defendant Breck twisted and applied pressure to plaintiff's injured leg and ankle. (Id. at 8.) Plaintiff claims that the officers dragged him back into his yard despite his injuries and then dragged him to the patrol car. (Id.) Plaintiff claims that after the described assault he was not taken to jail but instead merely required to sign a promise to appear. (Id. at 9.) He alleges the same injuries as those alleged in his first cause of action.*fn3
Plaintiff claims that as a result of the defendants' actions he has suffered personal injury, pain and suffering, emotional trauma, extreme fear, anxiety, loss of income, and loss of future income. He seeks $3.5 million in damages as well as costs of suit.
In their motion to dismiss for failure to state a claim, defendants first argue that plaintiff has failed to allege any facts suggesting a custom or policy by the defendant Grant Joint Union High School District. Because of the failure to allege any such facts, and because local government agencies cannot be sued on a respondeat superior theory for the unconstitutional acts of their employees, defense counsel argues that the motion to dismiss should be granted with respect to the defendant school district.
Counsel next argues that with respect to the defendant police officers, plaintiff has failed to allege any facts stating a cognizable claim under the First, Sixth or Fourteenth Amendments since a claim of the excessive use of force by police in the course of an arrest or investigatory stop is governed by the Fourth Amendment. Counsel also attempts to argue that plaintiff cannot state a cognizable claim under the Fourth Amendment because the officers' actions were reasonable under the circumstances. Finally, counsel contends that the defendant officers are entitled to dismissal on qualified immunity grounds because there is no clearly established rule prohibiting the officers from acting as they did.
Finally, in their motion to strike defendants argue that some specific allegations of plaintiff's amended complaint are immaterial, irrelevant, impertinent or scandalous and should therefore be stricken.*fn4
Plaintiff filed three pleading which the court has construed, in combination, as constituting his opposition to the pending motions.*fn5 In large part, those filings repeat the allegations of plaintiff's amended complaint, although they also contain claims that the defendant officers issued a fraudulent citation to plaintiff and that plaintiff is aware of witnesses that will support his version of events. Plaintiff does not respond to any of defendants' legal arguments in support of their motions.
LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTIONS
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the ...