The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS*fn1
Defendant Sandra Spagnoli ("defendant") moves for dismissal of plaintiff's Complaint with prejudice, under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). Defendant argues the two claims comprising plaintiff's Complaint should be dismissed since plaintiff has failed to sufficiently allege that he was deprived of a constitutional right. (Mot. to Dismiss 1:26-2:6). For the reasons stated below, defendant's dismissal motion is granted without prejudice.
A dismissal motion under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the [plaintiff's] claim is and the grounds upon which relief rests...." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Dismissal of a claim under Rule 12(b)(6) is appropriate only where the complaint either 1) lacks a cognizable legal theory, or 2) lacks factual allegations sufficient to support a cognizable legal theory. Balistreri v. Pacific Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). To avoid dismissal, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547.
In deciding a Rule 12(b)(6) motion, the material allegations of the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. And Dev. Corp. 358 F.3d 1097, 1106 (9th Cir. 2004). However, neither conclusory statements nor legal conclusions are entitled to a presumption of truth. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); Twombly, 550 U.S. at 555. Additionally, courts will not assume that the plaintiff "can prove facts that it has not alleged, or that the defendants have violated... laws in ways that have not been alleged." Assoc. General Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
If a Rule 12(b)(6) is granted, the "district court should grant leave to amend even if no request to amend the pleadings is made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)(quoting Doe v. U.S., 58 F.3d 484, 497 (9th Cir. 1995)).
Plaintiff alleges two doe defendant City of Benicia police officers violated his federal Fourth Amendment right when they failed to protect him from being attacked by an intoxicated person. Plaintiff alleges in his Complaint that he was at a nightclub with family and friends in Benecia, California, and "was accosted" by a number of intoxicated patrons as he was leaving the nightclub. (Compl. ¶ 6.)
Plaintiff alleges that he "sought, and received, assistance from" City of Benicia police officers. (Id., ¶ 7.) Plaintiff alleges after the officers intervened, they "became aware that one of the drunk patrons was illegally carrying a concealed knife; and that he had threatened plaintiff with that knife." (Id.) Plaintiff further alleges "[d]espite the... clear indication that plaintiff was in distress..., [the] officers instructed plaintiff to simply walk away" in deliberate indifference "that plaintiff would be assaulted and battered by the knife-wielding drunk patrons." (Id., ¶¶ 7-8.) Plaintiff also alleges that "[o]nly moments after the doe defendant officers left the scene, the drunk patrons pursued plaintiff and attacked him with a knife." (Id., ¶ 9.)
Plaintiff's first claim is against unidentified police officers under 42 U.S.C. § 1983 ("§ 1983"). (Compl. ¶¶ 10-15.) Plaintiff's second claim is alleged against defendant Spagnoli and doe defendants for "deficient policies, practices and procedures regarding the training of officers." (Id., ¶¶ 16-20.) The second claim incorporates the allegations in the first claim and is based upon plaintiff's allegations that doe City of Benicia police officers deprived him of liberty under the Fourth Amendment, when they failed to protect him from being battered by a drunk patron. Notwithstanding plaintiff's allegation that his first claim is made under the Fourth Amendment, the wording of the allegations in this claim, i.e. "defendant officers caused plaintiff to be subjected to a deprivation of liberty and/or property interest," and plaintiff's arguments raised in opposition to the dismissal motion, show this claim is plaintiff's attempt to allege a Fourteenth Amendment substantive due process failure to protect claim. (Compl. ¶ 12, and Pl. Opp'n p. 2, lines 12-13.)
To state a claim under Section 1983 against either an individual defendant or a municipality, a plaintiff must establish that he was deprived of a right secured by the Constitution or laws of the United States. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Oviatt by and through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). The Fourteenth Amendment "Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney v. Winnebago County Dept. Of Social Services, 489 U.S. 189, 196 (1989). There are two exceptions to this general rule: 1) the "special relationship" exception and 2) the "danger creation" exception. Estate of Amos v. City of Page, Arizona, 257 F.3d 1086, 1090-91 (9th Cir. 2001).
The "special relationship" exception arises when the government enters into a "custodial" relationship with a party, such as taking the party into custody or placing him or her into involuntary hospitalization. Huffman v. ...