ORDER DENYING DEFENDANTS&'MOTION TO DISMISS AND MOTION TO STRIKE
This matter comes before the Court on Defendants&' City of Sacramento, Richard Braziel, and Gary Dahl&'s ("Defendants&'") Motion to Dismiss Certain Claims Alleged in the Complaint and Striking Certain Portions of the Complaint (Doc. 9). Defendants ask the Court to dismiss James Garcia&'s ("Plaintiff") first, second, third, fourth, and sixth claims for relief for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants also move to strike allegations of a settlement offer and to strike the allegation of an "unreasonable search," pursuant to Federal Rule of Civil Procedure 12(f). Plaintiff opposes the motion.*fn1
I. FACTUAL AND PROCEDURAL BACKGROUND
The Complaint (Doc. 1) alleges that Plaintiff was attacked by Bandit, a police canine, on April 10, 2009. On that evening, Sacramento police officers were pursuing a suspect, Manuel Prasad. Mr. Prasad failed to stop for a taillight violation. Hearing the sirens and police helicopters, Plaintiff walked over to a neighbor&'s backyard to speculate why law enforcement was in the neighborhood. Suddenly, Plaintiff was attacked by Bandit. The canine inflicted eleven separate wounds in Plaintiff&'s lower left leg. Plaintiff was immediately rushed to the hospital. He was wheelchair-bound during the month following his attack and he required crutches for another month.
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering 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 (1975), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
"Rule 12(f) provides in pertinent part that the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. . . Motions to strike are disfavored and infrequently granted. A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Bassett v. Ruggles et al., 2009 WL 2982895 at *24(E.D. Cal. Sept. 14, 2009)(internal citations omitted).
Plaintiff&'s claims against Defendants are brought under 42 U.S.C. § 1983. To prevail in a § 1983 civil action against state actors for the deprivation of "rights, privileges, or immunities secured by the Constitution and laws, a plaintiff must show that (1) acts by the defendants (2) under color of state law (3) deprived him of federal rights, privileges or immunities and (4) caused him damage. Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Accordingly, the conduct complained of must have deprived the plaintiff of some right, privilege or immunity protected by the Constitution or laws of the United States." Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (internal citations omitted).
1. Claim 1: Unreasonable Search and ...