The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REGARDING DEFENDANTS' MOTION TO DISMISS (Doc. 10)
Plaintiff brings this civil rights action pursuant to 28 U.S.C. § 1983 against Steve Jacobsen ("Jacobsen") and the County of Stanislaus ("County") (collectively "Defendants"). (Doc. 1).
Defendants filed a motion to dismiss Plaintiff's complaint on December 10, 2010. (Doc. 10). Plaintiff filed opposition on February 14, 2011. (Doc. 11). Defendants filed a reply on February 28, 2011. (Doc. 12).
On February 26, 2010, Plaintiff, an attorney was present in a hallway at the Stanislaus County courthouse. Plaintiff saw Jacobsen, an investigator for the Stanislaus County District Attorney's Office, and attempted to take his photograph in connection with a case Plaintiff was working on. Jacobsen lunged at Plaintiff and smacked Plaintiff's hand, causing Plaintiff's camera to skitter down the hallway.
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 for 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 (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 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) (internal quotation marks omitted).
The Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal quotation marks omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or where the allegations on their face "show that relief is barred" for some legal reason, Jones v. Bock, 549 U.S. 199, 215 (2007).
In deciding whether to grant a motion to dismiss, the court must accept as true all "well-pleaded factual allegations" in the pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). "When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.2003). "A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." Id. at 908.
A. Plaintiff's Federal Claims
Plaintiff's complaint asserts claims for violations of Plaintiff's civil rights pursuant to 28 U.S.C. § 1983. Specifically, Plaintiff contends that by slapping Plaintiff's camera out of his hand, Jacobsen violated Plaintiff's First Amendment rights to free speech and to petition the government; his Fifth and Fourteenth Amendment rights to not be denied liberty and property without due process of law, including his right to carry on a lawful business and common trade; and his Fourth Amendment right to be free from unreasonable seizure. (Comp. At 2-3). To state a claim under section 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States ...