The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER RE DEFENDANT'S MOTION TO DISMISS (DOC. 21)
Plaintiff Randi Fisher ("Plaintiff") proceeds with this action against Defendants City of Modesto (the "City"), Horacio Ruiz ("Officer Ruiz"), and Michael Hardan ("Chief Hardan") (collectively, "Defendants"), alleging claims for civil rights violations pursuant to 42 U.S.C. § 1983 and the Fourth Amendment of the Constitution; violation of California Civil Code § 51.7 (Unruh Civil Rights Act) and California Civil Code § 52.1 (Bane Civil Rights Act); assault and battery; and negligent hiring and retention.
Before the court is the City and Chief Hardan‟s motion to dismiss Plaintiff‟s first amended complaint ("FAC"). Doc. 21. Plaintiff filed an opposition (Doc. 22), to which the City and Chief Hardan replied (Doc. 24).
This action arises from an incident which occurred on or about June 4, 2009 at approximately 4:00 p.m. Plaintiff, a female high school student who was then 17 years old, was walking through the Vintage Fair Mall in the City with her cousin, Tabitha, and friend, Shanice. Shanice choked on a water bottle top, coughed, and expelled the bottle cap out of her mouth over a railing into the mall court. A security guard ordered the girls to leave. The girls exited and walked to the parking lot to wait for Plaintiff‟s mother to pick them up.
One of the girls realized she had forgotten her sweater inside the mall. They approached Officer Ruiz, who was on duty in his parked patrol car in the parking lot. When the girls told Officer Ruiz that they wanted to go back in the mall to retrieve the sweater, Officer Ruiz called mall security. Mall security told Officer Ruiz the girls could not re-enter the mall, and he relayed this message to them. Plaintiff said, "This is bullshit," and Tabitha asked why the police and security guards had to behave like such pigs.
As the girls were walking out of the parking lot toward the main roadway, Officer Ruiz stopped his patrol car in front of them. Officer Ruiz got out of his car, grabbed Plaintiff, handcuffed her, and put her in the back seat of the patrol car. When they arrived at the mall‟s detention station, Officer Ruiz grabbed Plaintiff out of the backseat roughly and bent her left hand backwards towards her wrist. Plaintiff felt her wrist snap while she was handcuffed. At the detention station, Officer Ruiz pulled a chair out from under Plaintiff when she was sitting down and slammed her to the ground. Officer Ruiz searched Plaintiff‟s purse but did not find any contraband.
Plaintiff‟s mother arrived shortly afterward and took Plaintiff to the hospital. Hospital x-rays confirmed that Plaintiff‟s left wrist was fractured. Plaintiff wore a stabilizing brace on her left arm for several weeks after the incident.
On May 25, 2010, Plaintiff filed a complaint against Defendants. Officer Ruiz filed an answer (Doc. 10), and the City and Chief Hardan filed a motion to dismiss the complaint (Doc. 9). Plaintiff filed a statement of non-opposition to the motion to dismiss (Doc. 11), and it was granted with leave to amend (Doc. 19). Plaintiff filed the FAC on November 15, 2010. Doc. 20. On November 29, 2010, the City and Chief Hardan filed a motion to dismiss the FAC. Doc. 21. Plaintiff filed an opposition on February 14, 2011 (Doc. 22), to which the City and Chief Hardan replied on February 17, 2011 (Doc. 24).
To survive a Rule 12(b)(6) motion to dismiss, a "complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face.‟" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). A complaint does not need detailed factual allegations, but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
In deciding a motion to dismiss, the court should assume the veracity of "well-pleaded factual allegations," but is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 127 S.Ct. at 1950. "Labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "‟Naked assertion[s]‟ devoid of "further factual enhancement‟" are also insufficient. Iqbal, 127 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Instead, the complaint must contain enough facts to state a claim to relief that is "plausible on its face." Twombly, 550 U.S. at 570.
A claim has facial plausibility when the complaint‟s factual content allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Iqbal, 127 S.Ct. at 1949. "The plausibility standard is not akin to a "probability requirement,‟ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and "that a ...