ORDER AND FINDINGS AND RECOMMENDATIONS
This case came before the court on November 6, 2009, for hearing on defendants' motions (1) to strike pursuant to Federal Rule of Civil Procedure 12(f) (Doc. No. 54), (2) to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or for more definite statement pursuant to Federal Rule of Civil Procedure 12(e) (Doc. No. 56), and (3) for sanctions pursuant to 28 U.S.C. § 1927 and the court's inherent powers (Doc. No. 58). Jason M. Sherman, Esq. appeared for the defendants. No appearance was made by or on behalf of plaintiff, who is proceeding pro se in this matter, and no written opposition to the motion was filed by plaintiff. The motions were taken under submission.
Also before the court are plaintiff's motions for appealing a judgment or order pursuant to Federal Rule of Civil Procedure 73, for in forma pauperis status, and for transcripts at government expense. Plaintiff did not notice these motions for hearing.
Upon consideration of all written materials filed in connection with the parties' motions and the entire file, the undersigned will recommend that defendants' motion to dismiss plaintiff's second amended complaint be granted in part, that defendants' motion for more definite statement be denied as to the remaining claims, that defendants' motion to strike specific allegations be granted, and that defendants' motion for sanctions be denied. Plaintiff's motions will be denied.
Plaintiff filed a complaint against defendants Grant Joint Union High School District*fn1 and school district police officers C. Breck and M. Scott in Sacramento County Superior Court on August 13, 2008, seeking relief under 42 U.S.C. § 1983. (Doc. No. 1, Ex. A.) On October 20, 2008, defendants removed the action to this court pursuant to 28 U.S.C. § 1441(b). Three days later, defendants moved to dismiss the complaint. Plaintiff responded by filing an amended complaint. (Doc. No. 14.) Defendants' motion to dismiss was denied as moot, and defendants were granted ten days to respond to the amended complaint. (Doc. No. 16.) Defendants filed a timely new motion to dismiss together with a motion to strike portions of the amended complaint. (Doc. Nos. 17 & 19.) Those motions were ultimately granted, after hearings on January 16, 2009, and March 6, 2009, and plaintiff was granted leave to file a second amended complaint. (Doc. No. 52.) Plaintiff filed a timely second amended complaint on September 14, 2009. (Doc. No. 53.) On September 21, 2009, defendants filed the three motions that were heard on November 6, 2009.
Plaintiff's first amended complaint, entitled "Amended Complaint for Damages under 42 USC (sic) § 1983; Civil Rights Violation; Personal Injury," commences with an introductory paragraph alleging generally that his rights under the First, Sixth, Eighth, and Fourteenth Amendments were violated by Grant Joint Union High School District Police Service Division, Officer Breck, and Officer Scott. Plaintiff's second amended complaint begins with the same general allegation. A side-by-side comparison of the two pleadings reveals that the second amended complaint is largely identical to the first amended complaint, except that plaintiff has added allegations summarizing his grounds for alleging constitutional violations by each officer. (Second Amended Compl. (SAC) at 4-5 & 11-13.) In these summaries, plaintiff alleges for the first time that the officers violated his rights under the Fourth Amendment. (SAC at 4 & 12.)
In his first cause of action, plaintiff alleges the following facts in support of his claim that Officer Breck violated his civil rights. On August 16, 2007, at approximately 2:00 p.m., plaintiff was sitting in his car parked at his residence. (SAC at 2.) He exited his car and started toward his residence, when he was startled by a voice yelling "hey you." (Id.) Plaintiff began to run and then 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. (SAC at 3.) 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 concrete 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. They found a failure by plaintiff to appear in a driving without a license case and issued him a citation/promise to appear. Plaintiff went to the hospital immediately after the incident and was told that his leg was broken. (Id.) Plaintiff contends that defendants had no right to stop him in the first place but that, if the stop was justified, 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. (SAC at 3-4.)
Plaintiff contends that defendant Breck (1) violated his First Amendment rights by "Defamation of character, embarrassing and insulting Plaintiff"; (2) violated his Fourth Amendment rights by "Breaking plaintiffs [sic] left leg in front of his residence while minding his own business peacefully"; (3) violated his Sixth Amendment rights when he informed the officer "about leg being broke [sic] and was professionally neglected" and because there was no accuser present to complain that plaintiff did anything wrong that would have warranted harassment by the officers; (4) violated his Eighth Amendment rights by inflicting "Excessive cruel negligence" and cruel and unusual punishment on a person who is diagnosed with distinctive mental disabilities and is easily intimidated and frightened; and (5) violated his Fourteenth Amendment rights by applying extreme pressure to plaintiff's broken leg after being informed that it was broken, by having knowledge of the fact that plaintiff had been given a fraudulent ticket, by depriving plaintiff of equal rights to medical treatment after being injured, and by abridging the right to equal protection from pain. (SAC at 4-5.) Plaintiff claims that as a result of defendant Breck's actions he has suffered personal injuries, pain and suffering, emotional trauma, extreme fear, anxiety, loss of income, and loss of future income. He seeks $300 million in damages and costs of suit on his cause of action against defendant Breck. (SAC at 5-6.)
In his second cause of action, plaintiff alleges many of the same facts in support of his claim that Officer Scott also violated his civil rights, with some additional facts related to the August 16, 2007 incident. (SAC at 6-11.) Plaintiff alleges that from his own back yard he surrendered to three officers who were in the next door neighbor's yard. (SAC at 7.) "After still surrendering," he sat down in his yard and lit the cigarette that had been in his mouth, and he took his time smoking his cigarette before peacefully approaching the officers, who dragged him over the fence as soon as they could reach him. (SAC at 7-8.) He alleges that the officers slammed him to the ground head first and defendant Scott tried to choke him and placed his knee on the back of plaintiff's neck while defendant Breck was applying pressure to plaintiff's injured leg and ankle. (SAC at 8.) Defendant Breck "hopped the fence" into plaintiff's back yard and searched it. (SAC at 9.) The officers dragged plaintiff to the patrol car. (Id.) Although plaintiff had an outstanding misdemeanor warrant, he was not taken to jail but was instead merely required to sign a promise to appear. (SAC at 10.) The officers attempted to add a charge of driving with no license on August 16, 2007, but plaintiff had a valid license and was not driving when defendants attacked him. (Id.) As in his first cause of action, plaintiff contends that defendants had no right to stop him in the first place but that, if the stop was justified, the defendant officers had no right to use excessive force against him and especially no right to deliberately choke him and apply pressure to his broken leg for the sole purpose of causing him pain. (SAC at 11.)
Plaintiff contends that defendant Scott (1) violated his First Amendment rights by "Defamation of character, embarrassing and insulting Plaintiff"; (2) violated his Fourth Amendment rights by "Breaking plaintiffs [sic] left leg in front of his residence while minding his own business peacefully"; (3) violated his Sixth Amendment rights when he informed the officer "about leg being broke [sic] and was professionally neglected" and because there was no accuser present to complain that plaintiff did anything wrong that would have warranted harassment by the officers; (4) violated his Eighth Amendment rights by inflicting "Excessive cruel negligence" and cruel and unusual punishment on a person who is diagnosed with distinctive mental disabilities and is easily intimidated and frightened; and (5) violated his Fourteenth Amendment rights by using excessive force in choking plaintiff when plaintiff was not resisting, by participating in breaking plaintiff's leg, by depriving plaintiff of the "equal rights" of an injured person, and by abridging plaintiff's right to equal protection from pain. (SAC at 12-13.) Plaintiff claims that as a result of defendant Scott's actions he has suffered personal injuries, pain and suffering, emotional trauma, extreme fear, anxiety, loss of income, and loss of future income. He seeks $300 million in damages and costs of suit on his cause of action against defendant Scott. (SAC at 13.)
As in their motion to dismiss plaintiff's first amended complaint 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 school district and that the failure to allege such facts requires dismissal of this defendant because local government agencies cannot be sued on a respondeat superior theory for the unconstitutional acts of their employees. 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, Fourth, Sixth or Fourteenth Amendment and a claim of use of excessive force by police in the course of an arrest or investigatory stop is governed by the Fourth Amendment. Counsel argues that plaintiff has not stated a cognizable claim under the Fourth Amendment because he has failed to resolve the inconsistencies in his factual allegations, as directed by the court. In defendants' motion for a more definite statement, counsel argues that plaintiff's second amended complaint contains so many deficiencies that defendants cannot be expected to frame a proper response.
In defendants' separate motion to strike, counsel cites five portions of plaintiff's second amended complaint that were previously stricken from plaintiff's first amended complaint as irrelevant, impertinent, and scandalous and moves to strike those same portions from the second amended complaint.
In defendants' motion for sanctions, counsel argues that plaintiff has expressly violated the court's order of September 10, 2009 in his second amended complaint and that plaintiff has unreasonably and vexatiously multiplied these proceedings. Counsel cites the court's order directing plaintiff not to include in any second amended complaint the allegations that were stricken from the amended complaint and cautioning plaintiff that "failure to abide by this directive will result in the imposition of sanctions." (Order (Doc. No. 52) filed September 10, 2009, at 13-14.) Counsel points out that, despite the warning, plaintiff included some of the stricken allegations in his second amended complaint. Counsel also cites plaintiff's violation of the court's order requiring him to title his amended complaint "Second Amended Complaint." Finally, counsel notes that, despite an order requiring compliance with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules, plaintiff failed to number the paragraphs in his second amended complaint, in violation of Federal Rule of Civil Procedure 10(b)'s requirement that parties state their claims or defenses in numbered paragraphs. Counsel also reviews the ways in which plaintiff has unreasonably and vexatiously multiplied the proceedings. Counsel requests an order awarding monetary sanctions to defendants in the amount of $1,139.50 for defendants' costs and reasonable attorney's fees and an additional $635.50 for preparation of the motion for sanctions.
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 complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
A motion for more definite statement pursuant to Federal Rule of Civil Procedure 12(e) is designed to strike at unintelligibility, rather than want of detail. See Woods v. Reno Commodities, Inc., 600 F. Supp. 574, 580 (D. Nev. 1984); Nelson v. Quimby Island Reclamation Dist., 491 F. Supp. 1364, 1385 (N.D. Cal. 1980). The rule permits a party to move for a more definite statement "[i]f a pleading is so vague that a party cannot reasonably be required to frame a responsive pleading." Fed. R. Civ. P. 12(e). It is not the function of such a motion to require the pleader to disclose details of the case, see Boxall v. Sequoia Union High Sch. Dist., 464 F. Supp. 1104, 1114 (N.D. Cal. 1979), or to provide the evidentiary material that may properly be obtained by discovery, see Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981). A motion for more definite statement should be denied if a pleading meets federal standards by providing a "short and plain statement" of the claim showing that the pleader is entitled to relief. See Fed. R. Civ. P. 8(a)(2).
A motion to strike pursuant to Rule 12(f) allows a court to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial...." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). A motion to strike is well-taken when "it is clear that the matter to be stricken could have no possible bearing on the subject matter of litigation." LeDuc v. Kentucky Central Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Impertinent allegations are those that are not responsive or relevant to issues involved in the action and which could not be admitted as evidence in the litigation. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 (1994). "Scandalous" within the meaning of Rule 12(f) includes allegations that cast a cruelly derogatory light on a party or other person. Talbot v. Robert Mathews Distributing Co., 961 F. 2d 654, 665 (7th Cir. 1992). Ultimately, whether to grant a motion to strike applying these standards lies within the sound discretion of the district court. Fantasy, Inc. v. Fogerty, 984 F.2d at 1527; see also California Dept. of Toxic Substances Control v. Alco Pacific, Inc., 217 F. Supp. 2d 1028, 1032-33 (C.D. Cal. 2002).
I. Lack of Allegations as to Defendant Grant Joint Union ...