The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT, IN PART, WITH LEAVE TO FILE A SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS
On December 22, 2009, plaintiff Raul Ernesto Esparza ("Plaintiff"), a California prisoner proceeding pro se, filed a civil rights complaint ("Complaint") pursuant to 42 U.S.C. § 1983.*fn1 On January 12, 2010, pursuant to the provisions of the Prison Litigation Reform Act, the Court screened the Complaint and found it deficient in several respects. (See Jan. 12, 2010 Ord. at 3-7.) Accordingly, the Court dismissed the Complaint, in part, but granted Plaintiff leave to amend. (Id. at 6-7.)
On February 1, 2010, Plaintiff filed a First Amended Complaint ("FAC") against three City of Long Beach police officers:
1. Joshua A. Brearley ("Officer Brearley");
2. Andrew M. Fox ("Officer Fox"); and
3. Adam H. Rim ("Officer Rim").
All three officers are sued in their individual capacities. (FAC at 1, 3.) For ease of reference, all three officers may be referred to collectively as "Defendants."
On March 31, 2010, Defendants filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) ("Motion"). On April 19, 2010, Plaintiff filed an opposition and, on April 21, 2010, a supplemental opposition. On April 24, 2010, defendants filed their reply. On May 12, 2010, Plaintiff filed yet another opposition to the Motion. For the reasons discussed below, the FAC is dismissed, in part, with leave to amend.
II. ALLEGATIONS OF THE COMPLAINT
On October 30, 2008, Jennifer Gallagher called Plaintiff and asked that he meet her at 1st street and Cerritos avenue in Long Beach, California. (FAC at 8.) After Plaintiff and Ms. Gallagher rendezvoused, they began walking down 1st street, when Plaintiff noticed "a suspicious white male[,] dressed in all black[,] running towards" them. (Id.)
Not knowing who the individual was, Plaintiff became frightened and ran away, eventually ending up in a nearby alley. (FAC at 8.) At that point, Plaintiff realized that he was also being pursued by a "Long Beach Police vehicle" being driven by Officer Fox. (Id.) Plaintiff believed that Officer Fox "was going to run [him] over ... with the police patrol car." (Id.)
Plaintiff then decided to stop running, and surrendered by "submissively laying face down" on the ground, waiting "to be handcuffed." (FAC at 8-9.) Officer Fox then "exited his patrol car," "ran over to" Plaintiff, and "placed his ... right knee ... into the middle of" Plaintiff's lower back. (Id. at 9.)
"Seconds later," Officer Brearley arrived and began kicking Plaintiff in the head, face, and upper torso. (Id.) Officer Fox then joined in the attack by "repeatedly punching" Plaintiff with a "closed fist." (Id.) While the assault was in progress, Plaintiff yelled and requested that Officers Brearley and Fox stop the attack, but instead of stopping, the officers "attacked harder." (Id.) Plaintiff estimates that he was kicked 20-25 times, and ...