The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
FINDINGS AND RECOMMENDATIONS
This action, in which plaintiff is proceeding pro se, has been referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21). Previously pending on this court's law and motion calendar for March 3, 2011, was defendants' motion to dismiss the first amended complaint, filed January 28, 2011. Plaintiff has filed an opposition, to which defendants have filed a reply. Plaintiff appeared in pro se. Defendants were represented by Andrew Caulfield.
Upon review of the motion, the documents in support, and the oppositions, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS.
Plaintiff brings this action against El Dorado County and two deputy sheriffs, Ken Brown and Scott Crawford, in regard to their treatment of her during two visits to the El Dorado County courthouse. Plaintiff alleges that these deputies "wrongfully detained [her], utilized excessive physical violence and force upon her in a public place, battered her, permanently injured her, and arrested her in violation of her rights as guaranteed her by the United States Constitution, federal civil rights laws, and California law." (FAC ¶ 1.) Plaintiff seeks compensatory and punitive damages.
Defendants argue that these deputies were carrying out judges' orders when they removed plaintiff from the courtroom, and that therefore they are protected by absolute quasi-judicial immunity. Defendant El Dorado County argues that there can be no Monell liability, as the employer of the deputies, where there is no underlying constitutional violation. DISCUSSION
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[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, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
II. Plaintiff's Allegations
Plaintiff alleges that defendants first violated her constitutional rights on October
6, 2009, while she was in Judge Proud's courtroom, requesting a continuance in a family law matter. She had been in a car accident wherein she suffered whiplash, a sprained ankle, and back, neck and shoulder injuries, and was taking pain medication. Judge Proud became enraged with plaintiff and ordered her removal from the courtroom. (FAC, ¶ 2.) Plaintiff started to slowly leave the courtroom, using crutches and wearing a cast, when Deputy Brown forcibly pushed plaintiff in her back. When she asked him to stop, she claims he grabbed her right upper arm, causing her extreme physical pain. (Id. at ¶ 3.) Defendant Brown then wrenched both plaintiff's right and left arms behind her back, so that her crutches fell away, and she experienced extreme pain in her neck, head and shoulder areas. He then jerked plaintiff backward, causing her to fall on the floor, hitting her tail bone, back and buttocks. The entire time, plaintiff claims that Brown was laughing at her and mocking her. He also told her that she could go to jail or leave the courtroom, but she was physically unable to get herself off the floor at this point. She had to be taken by ambulance to Marshall Medical Center. (Id. at ¶¶ 3-4.) Plaintiff alleges she sustained severe physical and emotional injuries from this incident which are ongoing. (Id. at ¶ 4.)
The second incident took place on July 16, 2010, in the lobby of the El Dorado County Courthouse. Plaintiff alleges that she was sitting in the lobby, waiting for her family law matter to be called, which could sometimes take hours, playing games on her cell phone and sending text messages. (Id. at ¶¶ 7-8.) Plaintiff alleges that she had been to family court numerous times in the past where she utilized her cell phone in this manner without incident. (Id. at ¶ 9.) Judge Waggoner walked by and started verbally assaulting plaintiff, accusing her of videotaping with her cell phone. He then ordered her to his courtroom immediately. Defendant Deputy Crawford then yelled at her and grabbed her cell phone away, declaring it to be evidence against her. (Id. at ¶ 9.) Plaintiff requested that she be permitted to bring her attorney to Judge Wagoner's courtroom. When Judge Waggoner discovered that the attorney was not there yet, but was on his way, he became more enraged and ordered the two deputies to arrest plaintiff for contempt of court, and refused her request to bring her attorney even though he was just arriving. (Id. at ¶¶ 11-12.) At this point defendant Crawford grabbed plaintiff and yanked her from her lobby chair, contorting her body in excruciating pain and breaking her bones. Even though plaintiff screamed out in pain that he was hurting her, Crawford continued, twisting her right arm, back and neck. (Id. at ¶¶ 13-14.) Crawford then handcuffed plaintiff and placed her under arrest, even though she was not resisting. She was then taken to a jury room while ...