The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE: MOTION TO DISMISS
Plaintiff Anthony Devon Roberson ("Plaintiff") proceeds with an action pursuant to 42 U.S.C. §1983 against Defendants County of Kern, Kern County Sheriff's Department, Donny Youngblood, Kern County Medical Center, California Forensic Medical Group, City of Bakersfield Police Department, Greg Williamson, and Does 1-25 (collectively "Defendants"). On February 28, 2011, Defendants City of Bakersfield, Bakersfield Police Department ("BPD"), and Greg Williamson ("City of Bakersfield") filed a motion to dismiss Plaintiff's complaint. (Doc. 16, Motion to Dismiss.) On the same date, Defendants County of Kern, Kern County Sheriff's Department, Donny Youngblood, and Kern Medical Center ("Kern County") filed a separate motion to dismiss Plaintiff's complaint. (Doc. 19, Motion to Dismiss.) Plaintiff did not file opposition.
This action arises out of Plaintiff's arrest occurring on May 24, 2009. (Doc. 1, Plaintiff's Compl. 18.) In the early morning hours of May 24, 2009, Plaintiff was a passenger in a vehicle that was pulled over by Officers of the BPD. (Id.) When the officers asked Plaintiff to exit the vehicle and show identification, Plaintiff exited the car and fled the scene. (Id.) Officers eventually found Plaintiff hiding nearby and placed him in handcuffs. (Id. 19.) Plaintiff alleges the officers began to kick and punch him while he was handcuffed and lying on his stomach. (Id. 20.) Officers drove Plaintiff to the Bakersfield Police Station. (Id.) Plaintiff requested medical attention, but was denied. (Id. 22.) Plaintiff was eventually transferred to the Lerdo Pre-Trial Facility of the Kern County Sheriff's Department where he again requested, but was refused medical attention. (Id. 23-24.)
In July 2009, Plaintiff was talking to his girlfriend on the telephone at Lerdo Pre-Trial Facility when one of the corrections officers asked him to hang up the phone. (Id. 25.) Plaintiff alleges that after he asked to use the phone for a few more minutes, the officer responded by tackling him and beating him. (Id. 25.) As a result, Plaintiff was placed in the infirmary and then taken to the Kern County Medical Center. (Id. 26.) Plaintiff had a collapsed and punctured lung, broken ribs, and fluid in his lungs from which he developed a respiratory infection and underwent two surgeries. (Id.) Plaintiff alleges that even though he required continued medical care he was prematurely released from the Medical Center and returned to the Lerdo Pre-Trial Facility. (Id. 28.) Plaintiff alleges he needed medical treatment once he returned to the Lerdo Pre-Trial Facility, but did not receive care. (Id. 29.)
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 (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." Aschcrof v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
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). 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.
1. 42 U.S.C. §1983 Eight Amendment Claims The City of Bakersfield contends the First, Second, and Third causes of action brought under 42 U.S.C. § 1983 as Eighth Amendment claims should be dismissed, because the Eighth Amendment does not apply before an adjudication of guilt. (Doc., 16, at 8.) Defendants Kern County also move to dismiss the First, Second and Third causes of action pursuant to Rule 12(b)(6).
To establish liability under §1983, a Plaintiff must show: (1) the conduct complained of occurred under the color of state law, and (2) the conduct subjected the plaintiff to a deprivation of constitutional rights. Brocam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003); Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1983). "It is the deprivation of constitutional rights for which the Act creates a remedy." Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). A plaintiff must "allege with at least some degree of particularity overt acts which defendants engaged in" that support the plaintiff's claim. Sherman v. Yakahi, 549, F.2d 1287, 1290 (9th Cir. 1977) (quoting Powell v. Workmen's Compensation Bd., 327 F.2d 131, 137 (2d Cir. 1964)).
Plaintiff alleges three separate causes of action under § 1983 for violations of the Eighth Amendment. (Doc., 1, 37-56.) The complaint does not support any claim under the Eighth Amendment for cruel and unusual punishment because his complaint arises out of pre-trial detention. (Id.) Nevertheless, pro se complaints are held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S. 519 , 520-21 (1972)). "[A] pro se civil rights complaint should be liberally construed, and should not be dismissed unless it appears certain that the plaintiff can prove no set of facts which would entitle him or her to relief." Haddock v. Bd. of Dental Examiners of California, 777 F.2d 462, 464 (9th Cir. 1985); Haines, 404 U.S. at 520-21 (instructing federal courts to liberally construct pro se pleadings); see also Boag v. MacDougall, 454 U.S. 364, 365 (1982). Liberal construction of a pro se complaint is especially important in a civil rights case and the pro se plaintiff must be afforded the benefit of any doubt. Ferdick v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Even if the plaintiff erroneously relies on a different legal theory, if the complaint states a claim under any legal theory, the complaint should not be dismissed. Id.; see also U.S. v. Howell, 318 F.2d 162, 166 (9th Cir. 1963) [emphasis added].
a. Eighth Amendment Claim for Deliberate Indifference to a Prisoner's Serious Medical Need
Plaintiff's complaint alleges a failure to provide medical care during his pretrial detention. The City of Bakersfield correctly notes that Eighth Amendment claims do not arise until after conviction and sentencing. An allegation of failure to provide medical care to a person arrested for a crime, though not yet convicted, is analyzed under the due process clause of the Fourteenth Amendment. Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir.2003). In the Ninth Circuit, such an ...