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Tony L. Burns v. Ofcr Kevin Barreto; Ofcr Mark Simonson; and Benicia Police Dept

May 5, 2011

TONY L. BURNS, PLAINTIFF,
v.
OFCR KEVIN BARRETO; OFCR MARK SIMONSON; AND BENICIA POLICE DEPT, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is defendants' motion to dismiss plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 The court heard this matter on its law and motion calendar on May 5, 2011. (Minutes, Dkt. No. 34.) Attorney Gregg A. Thornton appeared on behalf of defendants via telephone. Plaintiff, who is proceeding without counsel, appeared on his own behalf.

The undersigned has considered the briefs, oral arguments, and the appropriate portions of the record in this case and, for the reasons stated below, grants defendants' motion to dismiss the First Amended Complaint. Specifically, the undersigned dismisses plaintiff's claims alleged against defendants brought pursuant to 42 U.S.C. § 1983 without prejudice because plaintiff has again failed to state plausible claims against defendants, but amendment would not necessarily be futile.*fn2

I. BACKGROUND

On June 22, 2010, plaintiff filed his original complaint ("Complaint"). (Compl., Dkt. No. 1.) Aside from plaintiff's allegation regarding subject matter jurisdiction and his prayer for relief, plaintiff's Complaint only alleged the following:

2. Allegations.

1. Defendants unlawfully used excessive force when using a Taser upon plaintiff.

2. Defendants violated plaintiff's 4th Amendment rights against unreasonable search and seizures. (Id. at 1.)*fn3

Defendants filed a motion to dismiss plaintiff's Complaint, and the undersigned granted that motion.*fn4 (Order & Order to Show Cause, Feb. 4, 2011, Dkt. No. 18.) The undersigned dismissed plaintiff's claims against Officers Barreto and Simonson because plaintiff failed to include enough facts to place these individual defendants on notice of the claims alleged against them. The undersigned granted plaintiff leave to amend his Complaint and specifically admonished plaintiff that he needed to, at a minimum, identify the date of the incident in question and allege facts regarding how each officer was personally involved in the alleged deprivation of plaintiff's civil rights. (Id. at 6.) The undersigned also dismissed the claims alleged against the Benicia Police Department without prejudice. In dismissing those claims, the undersigned set forth a lengthy explanation of the standards that apply to civil rights actions against municipalities, including police departments. (See id. at 6-8.) The undersigned concluded that "[a]lthough plaintiff has not pled facts relevant to the remaining elements of a claim under Monell, he most glaringly omits any allegation that the Benicia Police Department had a policy or custom that was the moving force behind the alleged constitutional violation." (Id. at 8.)

On March 3, 2011, plaintiff timely filed a First Amended Complaint. (First Am. Compl., Dkt. No. 22.) Other than the allegation addressing subject matter jurisdiction and the prayer for relief, plaintiff's First Amended Complaint only contains the following allegations:

2. Allegations

1. Without reason or cause defendants entered onto resident private property and unlawfully used excessive force when using a Taser upon plaintiff.

2. Without reason or cause defendants entered onto resident private property and violated plaintiff's 4th Amendment rights against unreasonable search and seizures when defendants unlawfully searched plaintiff and took property.

(Id. at 1.) In terms of relief, plaintiff asks the court to: (1) "stop the racial bias that is associated with this police dept."; (2) "stop the illegal searchs [sic] that is [sic] associated with this police dept."; and (3) ...


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