The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART, DENIED IN PART OBJECTIONS DUE: TWENTY (20) DAYS
Plaintiff Harold Walker ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on September 21, 2009, and a First Amended Complaint ("FAC") on November 9, 2009.
On November 13, 2009, Magistrate Judge Dennis L. Beck, pursuant to 28 U.S.C. § 1915A(a), screened Plaintiff's FAC. In screening Plaintiff's complaint, Judge Beck found that Plaintiff stated a cognizable claim under 42 U.S.C. § 1983 against Officers A. Alvarez, Christopher Aranas, L. Leibee, Lindsay Dozier, Phillip Corona, and Carmen Robles. Judge Beck also determined that Plaintiff did not state cognizable claims against other individuals named by Plaintiff. The Court ordered Plaintiff to inform the Court whether he intended to file an amended complaint or whether he wished to proceed against the defendants against whom he had stated cognizable claims.
On November 23, 2009, Plaintiff informed the Court that he wished to proceed with his Section 1983 claim against Officers Alvarez, Aranas, Leibee, Dozier, Corona, and Robles. On December 15, 2009, the Court issued an order directing the U.S. Marshal to serve the FAC on Defendants Dozier, Alvarez, Aranas, Leibee, Corona, and Robles (collectively "Defendants").
On February 26, 2010, Defendants filed a Motion to Dismiss, asserting that Plaintiff failed to state a claim for unlawful entry and arrest under the Fourth Amendment, failed to allege a claim for false police reports, and failed to adequately allege the participation of Defendant Robles. Defendants request that these claims be dismissed with prejudice and that Defendant Robles be dismissed from the action with prejudice. Defendants request that "the case move forward solely on Plaintiff's excessive force claim." See Reply Brief (Br.) at 4. It is this motion that is currently pending before the Court.
Plaintiff's allegations arise from an incident on August 29, 2009, in which he alleges that Officers Alvarez, Aranas, Leibee, Dozier, and Corona entered Apartment #213, 109 N. Glenn, Fresno. Plaintiff contends that he had permission to be in the apartment from the tenant, Michael Edwards, who was not there at the time.
Plaintiff alleges that Defendant Officers Alvarez, Aranas, Leibee, Dozier, and Corona entered the apartment without probable cause or consent and that no exigency existed. He further contends that the officers used unnecessary and excessive force in restraining him, despite the fact that he had notified the officers of prior neck and back injuries. After Plaintiff was restrained, he alleges that Officer Aranas took his wallet and found his parole identification card. Plaintiff was then taken into custody and transported to the hospital for treatment.
Plaintiff asserts that officer Carmen Robles, who was summoned to duty at the hospital, took pictures of Plaintiff while he was at the hospital. Id. Plaintiff contends that Officers Aranas, Corona, and Robles knowingly falsified a police incident report, and that Officer Dozier knowingly approved the false report. Plaintiff attached these reports to his FAC. The police reports and statements the police collected reflect that the apartment manager of the complex where Plaintiff was allegedly staying as a guest, saw him around the property. FAC at 10. The manager confronted Plaintiff and asked him what he was doing in the complex. Id. Plaintiff allegedly told the manager that he was going to see if his friend was home. Id. The manager's statement to the police explained that he saw Plaintiff enter the apartment of one of the residents. Id. The report states that the manager called the apartment that Plaintiff had entered, and asked to speak to the tenant. Id. The manager said a male, who the manager believed to be Plaintiff, answered the phone. Id. The man to whom the manager spoke refused to put the tenant on the telephone. Id. The apartment manager then telephoned the police. Plaintiff asserts that the apartment manager made false reports to "get the Fresno Police to come to the apartment complex." FAC at 5.
According to the police report attached to the FAC, officers responding to the manager's call went to the apartment, but did not hear any music or noise. FAC at 10. The responding officers knocked on the door to the apartment, but there was no response. Id. Officers then proceeded to obtain a key to the apartment from the manager to conduct "a welfare check of [the tenant]." Id. Plaintiff would not heed the officers' requests to come out of the apartment and discuss the situation. Id. Eventually, Plaintiff stated he would come out to talk to officers, but did not comply in the manner requested by the officers. Thus, officers "took [Plaintiff] down to the ...