The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (Doc. No. 37.)
On October 8, 2008, Plaintiff Artemis Lamont Whalum ("Plaintiff"), a state prisoner proceeding pro se, commenced this action alleging various constitutional and 42 U.S.C. § 1983 claims. (Doc. No. 1.)
Defendants Jacob Cuttings, the City of El Cajon, and the El Cajon Police Department's (collectively, "Defendants") have moved to dismiss the First Amended Complaint ("FAC"). (Doc. No. 37.) The Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1). And for the following reasons, the Court GRANTS Defendants' motion to dismiss.
On or about October 9, 2006, Plaintiff was arrested by Defendant Cuttings. (Doc. No. 1 at 2.) During the course of that arrest, Plaintiff claims that Defendant Cuttings used excessive force by firing two gunshots into Plaintiff. (Id.) The bullets injured Plaintiff's spine, right arm, ribs, and collapsed one of his lungs. (Id.)
On December 4, 2007, Plaintiff was convicted by a jury of assault with a deadly weapon on a police officer and two counts of resisting an executive officer by means of threat and violence. Plaintiff was sentenced to seventeen years and four months in prison. He is currently incarcerated at the High Desert State Prison, in Susanville, Ca.
On October 6, 2008, Plaintiff filed a notice of appeal in state court. On October 8, 2008, Plaintiff filed the instant lawsuit. (Doc. No. 1.) Plaintiff claimed that the excessive force used by Defendant Cuttings violated his Fourth Amendment right to be free from unreasonable arrest and his Fourteenth Amendment right to due process of law. (Id. at 2.) Plaintiff further alleged that the violation of his constitutional rights was caused by Defendant City of El Cajon's policies and failures in regards to the training and supervision of Defendant Cuttings. (Id. at 2.) Plaintiff sought an award of attorneys' fees and costs, in addition to twenty million dollars in damages. (Id. at 3.)
On September 16, 2009, this Court dismissed Plaintiff's lawsuit, but granted Plaintiff leave to file a FAC. (See Doc. Nos. 29, 34.)
On October 1, 2009, the California Court of Appeal affirmed Plaintiff's conviction in a written decision. People v. Whalum, Fourth Appellate District, Division One, Case No. D053834, 2009 WL 3154971. On January 13, 2010, Plaintiff's petition for review was denied by the California Supreme Court. People v. Whalum, Case No. S177791.*fn1
On February 22, 2010, Plaintiff filed his FAC. (Doc. No. 36.) And on March 12, 2010, Defendants moved to dismiss the action. (Doc. No. 37.)
The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact," are assumed to be true. Id. The court must assume the truth of all factual allegations and must "construe them in the light most favorable to the nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996).
As the Supreme Court explained, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1964--65. A complaint may be dismissed as a matter of law either for lack of ...