The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REGARDING DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' SIXTH AMENDED COMPLAINT (Doc. 83)
Plaintiffs Robert Morris and Michelle Morris ("Plaintiffs") are proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs filed a sixth amended complaint ("SAC") on June 24, 2010. (Doc. 82).
Defendants filed a motion to dismiss the SAC on June 28, 2010. (Doc 83). Plaintiffs filed opposition to Defendants' motion to dismiss on August 25, 2010. (Doc. 86).
Plaintiffs' SAC contains allegations regarding two Defendants: Fresno Police Department Officers Christopher Long ("Long") and Jeremy DeMoss ("DeMoss"). Although the caption of the complaint lists the City of Fresno as a defendant, the SAC is devoid of allegations pertaining to the City.
Mrs. Morris asserts a Fourth Amendment excessive force claim against DeMoss. Mr. Morris asserts a Fourth Amendment claim for excessive force against officer Long.
Mrs. Morris's Allegations
Mrs. Morris asserts a claim for "Excessive Force" against officer DeMoss stemming from an incident on "10/28/07." (SAC at 1). According to the SAC, Mrs. Morris was "a victim of an assault and robbery," presumably by some third party. (SAC at 1). It appears that DeMoss was the first officer to arrive at the scene of the assault and robbery, which occurred at 2904 E. Austin Way in Fresno, California. (SAC at 1). Defendant Long stopped Plaintiffs a few blocks away from Austin Way at the intersection of Holland Avenue and Fresno Street. (SAC at 1). At some point, a police officer identified in the SAC as "Alexander" placed Mrs. Morris in handcuffs. (SAC at 2). As Mrs. Morris sat on the curb handcuffed, she demanded that her "rights be observed," prompting officers to laugh. (SAC at 2). DeMoss walked over to Mrs. Morris and, without warning, "snatched Plaintiff up" by "quickly and unexpectedly...grabbing [Mrs. Morris'] right elbow from behind and lifting her up." (SAC at 2). The force used by DeMoss caused large bruses approximately three to four inches in diameter on the inside of Mrs. Morris' right forearm and bicep. (SAC at 2). Mrs. Morris alleges that she was not under arrest and had not broken any laws at the time DeMoss exercised force against her. (SAC at 2). DeMoss placed Mrs. Morris in his patrol car, drove her to her residence, and "dropped [Mrs. Morris] off." (SAC at 2).
Mr. Morris contends that Defendant Long "committed excessive force" against him on October 28, 2007 by conducting a "forced blood draw" and employing unreasonable force during the blood draw. (SAC at 3-4). Morris contends that Long drove him to a Fresno Police Department substation and forced him to submit to a blood draw, denying him the "right" to have either a breath test or urine test. (SAC at 4). Plaintiff contends he asked for a field sobriety test, but was told he was being taken for a blood draw. (SAC at 4). Plaintiff contends he was never told of alternative testing procedures, to which he would have consented.
Mr. Morris also alleges that during the blood draw, Long turned Mr. Morris' wrist backwards and twisted his arm into an armbar lock. (SAC at 3). While he held Mr. Morris in the arm-bar lock, Long threatened him by saying "move so I can break your arm." (SAC at 3). Mr. Morris alleges that Long used so much force that he dislocated Mr. Morris' shoulder caused Mr. Morris to suffer a torn ligament. (SAC at 3).
Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). To sufficiently state a claim to relief and survive a 12(b) (6) motion, the pleading "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, there must be "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In other words, the "complaint must contain sufficient factual ...