The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION REGARDING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (Doc. 19)
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. 18).
Plaintiff filed a First Amended Complaint ("FAC") on June 28, 2011. Defendants filed a motion to dismiss the FAC on July 13, 2011. (Doc. 19). Plaintiff filed opposition to the motion to dismiss on August 5, 2011. (Doc. 21). Defendants filed a reply on August 15, 2011. (Doc. 22).
Plaintiff is an attorney. On February 26, 2010, Plaintiff 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. Plaintiff avers that he felt constrained in his movement because of Jacobsen's conduct.
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 Fourth Amendment Claim
The Fourth Amendment claim asserted in Plaintiff's original complaint was dismissed, inter alia, for failure to allege the requisite element of state action under section 1983. The memorandum decision dismissing Plaintiff's original complaint provides:
Plaintiffs' Fourth Amendment claim fails because the complaint does not allege any seizure or force effected under color of State law. The Supreme Court has 'color' of to "under 'pretense' law." v. County law" of mean interpreted the phrase "under Huffman Angeles of Screws , Los v. 147 United F.3d States 1054, 1058 (9th Cir. 1998) (citing , 325 U.S. 91, 111 (1945)). "[A]ctions are under pretense of law only if they are "in some way 'related Id to the performance duties.'" . (citing Van Ort v. Estate of of Stanewich his official, 92F.3d 831, 838 (9th Cir. 1996)). In general, section 1983 is not implicated unless a state actor's conduct occurs in the course of performing an actual or apparent duty of her office, or unless the conduct is such that the actor could not have behaved Martinez in that way but for the authority of his office. v. Colon, 54 F.3d 980, 986-87 (1st Cir. 1995). "[P]rivate conduct, outside the line of duty and unaided by any indicia of actual or ostensible state authority, Id is not conduct occurring under color of state law." . Whether an official ...