MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND MOTION TO STRIKE
Plaintiff Robert L. Jewett brought this action against defendants City of Sacramento Fire Department ("Fire Department"), B. Cook, R. Coplen, and J. Arroyo for alleged violations of his constitutional rights pursuant to 28 U.S.C. § 1983 and state tort law. Presently before the court are the Fire Department's motion to dismiss plaintiff's First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6) and motion to strike portions of plaintiff's FAC pursuant to Rule 12(f).
I. Factual and Procedural Background
In the early morning hours of February 24, 2009, the City of Sacramento allegedly received a 9-1-1 call from an individual who believed that plaintiff had ingested drugs or alcohol and was suffering from an overdose. (FAC ¶ 7(C).) Plaintiff alleges that he was not under the influence of drugs or alcohol at the time. (Id. ¶ 7(A).) Defendants Cook, Copeln, and Arroyo, employees of the City of Sacramento Fire Department, responded to the call. (Id.)
Upon arrival, Cook, Copeln, and Arroyo allegedly rushed into plaintiff's home without his permission while "numerous unknown witnesses stood around watching." (Id. ¶ 7(B).) The FAC alleges that Cook, Copeln, and Arroyo told plaintiff that he had "a doctor's appointment" and that they were going to take him there. (Id.) Cook, Copeln, and Arroyo then allegedly tackled plaintiff to the ground, involuntary removed him from his home, and bound him to a stretcher. (Id.) Plaintiff was subsequently transported to Sutter General Hospital in Sacramento, California, where he was examined and tested for drugs. (Id.) Plaintiff allegedly was released from the hospital a few hours later. (Id.)
Plaintiff subsequently filed this action in Sacramento County Superior Court on December 29, 2009. (Docket No. 2.) The case was removed to this court on March 8, 2010. (Id.) Plaintiff's FAC alleges a claim for violations of his First, Fourth, Fifth, Fourteenth, and Eighth Amendment rights pursuant to 28 U.S.C. § 1983, as well as state law claims for negligence, assault, battery, false imprisonment, defamation, libel, slander, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Fire Department now moves to dismiss those claims in the FAC alleged against it.
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff needs to plead "only 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). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556-57).
In relevant part, § 1983 provides, Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State..., subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress....
While § 1983 is not itself a source of substantive rights, it provides a cause of action against any person who, under color of state law, deprives an individual of federal constitutional rights or limited federal statutory rights. 42 U.S.C. § 1983; Graham v. Connor, 490 U.S. 386, 393-94 (1989).
Because the Fire Department is a municipal department within the City of Sacramento it is not a "person" subject who can be sued pursuant to § 1983. While a state is not considered a "person" subject to § 1983 liability, Will v. Mich. Dept. of State Police, 491 U.S. 58, 69-71 (1989), local government units, such as counties or municipalities are. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91 (1978); Will, 491 U.S. at 69-71.
However, municipal departments and sub-units of local governments, such as police and fire departments, generally are not considered "persons" for the purpose of § 1983 liability. See United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005) (Ferguson, J., concurring) (finding municipal police departments and bureaus are generally not considered "persons" within the meaning of § 1983); Vance v. County of Santa Clara, 928 F. Supp. 993, 995-96 (N.D. Cal. 1996) (holding that the naming of a municipal department as a defendant "is not an appropriate means of pleading a § 1983 action against a municipality"); Wade v. Fresno Police Dept., No. Civ. 09-0588 AWI DLB, 2010 WL 2353525, at *4 (E.D. Cal. June 9, 2010) (holding a police department is not a "person" under § 1983); Morris v. State Bar of Cal., No. Civ. 09-0026 LJO GSA, 2010 WL 966423, at *5-*6 (E.D. ...