The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
Presently before the Court is Defendants County of San Diego, San Diego County Sheriff Deputy Thomas Seiver ("Deputy Seiver"), San Diego County Sheriff Deputy Detective Barbara Crozier ("Detective Crozier"), San Diego County Sheriff Deputy Jason Ward ("Deputy Ward"), San Diego County Sheriff Deputy Paul Mehaffie III ("Deputy Mehaffie III"), and San Diego County Sheriff Seargant George Calderon's ("Seargant Calderon," and collectively, "Defendants") motion to dismiss. (Mot. to Dismiss, ECF No. 9) Also before the Court is minor Plaintiff J.K.G.'s response in opposition, (Resp. in Opp'n, ECF No. 12), and Defendants' reply in support, (Reply in Supp., ECF No. 14). Having considered the parties' arguments and the law, the Court concludes that Defendants' motion is GRANTED IN PART AND DENIED IN PART.
This action is brought based on events that occurred on the evening of December 29, 2009, in Ramona, San Diego, California. (Compl. ¶ 16, ECF No. 1) That night, at approximately 8:00p.m., fourteen-year-old Plaintiff J.K.G. visited a friend who was working at Jack in the Box. (Id.) While waiting for his mother to pick him up, Plaintiff rode around the area on his skateboard. (Id.)
At 8:11p.m., Deputy Seiver-who was already in the area-was approached by an employee of a restaurant neighboring the Jack in the Box. (Id. ¶ 18) The employee notified Deputy Seiver of a customer's complaint that an individual was tampering with employee's cars in the back of the establishment. (Id.)
Responding to this information, Deputy Seiver spotted Plaintiff on his skateboard and pursued him. (Id. ¶ 19) Deputy Seiver stopped and searched Plaintiff, (Id. ¶ 20), seizing Plaintiff's cell phone, (Id. ¶ 21). Apparently without provocation, Deputy Seiver then "punched Plaintiff in the face twice . . . , choked Plaintiff, grabbed him, and threw him to the ground face first . . . , then slammed and grinded Plaintiff's face onto the parking lot pavement." (Id.) Prior to and during this encounter, Plaintiff did not "try to run, evade, or flee . . . hit, strike, kick or in any other manner assault and/or commit battery upon" Deputy Seiver. (Id.) At the time of this incident, "Plaintiff was 5'9" tall and weighed approximately 130 lbs with a thin build. . . . [Deputy Seiver] is approximately 6'--6'1" and weighs approximately 200--210 lbs." (Id. ¶ 20)
As Deputy Seiver was placing handcuffs on Plaintiff, Deputy Ward arrived on the scene. (Id. ¶ 22) Deputy Ward assisted Deputy Seiver in placing Plaintiff in Deputy Seiver's patrol car. (Id.) Deputy Seiver then drove to the parking lot to investigate the alleged vehicle tampering, finding no evidence. (Id. ¶ 23) While Deputy Seiver was investigating, Deputy Mehaffie III arrived and "saw Plaintiff bleeding and handcuffed in the backseat of [the] patrol car," but did not seek medical attention for Plaintiff. (Id. ¶ 24)
Deputy Seiver then transported Plaintiff to the Ramona Sheriff Substation for booking. (Id. ¶ 25) Thereafter, "the individual Defendants corruptly collaborated on the preparation and filing of false and misleading juvenile crime and use of force reports giving the appearance Deputy Seiver's beating and arrest of Plaintiff was lawful and justified." (Id. ¶ 26) These reports were authored by Deputies Seiver, Ward, and Mehaffie III, and Detective Crozier. (Id. ¶ 27) The deputies' supervisor, Seargant Calderon, "reviewed the false police narrative and use of force reports, and signed off on them knowing . . . that the reports were false." (Id.)
A three count Juvenile Court Petition was filed on the basis of the false reports, charging Plaintiff with resisting an executive officer, a felony; obstructing/resisting a peace officer, a misdemeanor; and battery on a peace officer, a misdemeanor. (Id. ¶ 28) Following a hearing on the merits, the entire petition was dismissed. (Id. ¶ 29)
Plaintiff filed his complaint in this action on February 14, 2011. (Compl., ECF No. 1) The summons was issued on February 15, 2011. (Summons, ECF No. 2) On June 28, 2011, the Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 17(b). (Mot. to Dismiss, ECF No. 9) On July 20, 2011, Plaintiff filed a motion to appoint guardian ad litem, (Mot. to Appoint Guardian, ECF No. 11), which the Court granted on July 22, 2011, (Order, ECF No. 13). Plaintiff filed his opposition to Defendants' motion to dismiss on July 21, 2011, (Resp. in Opp'n, ECF No. 12), and Defendants replied on July 26, 2011, (Reply in Supp., ECF No. 14).
CAPACITY TO BE SUED -- RULE 17(b)
Federal Rule of Civil Procedure Rule 17 applies to a litigant's capacity to sue or be sued. See Fed. R. Civ. P. 17. To determine an individual's capacity, courts must apply the law of the state where the individual is domiciled. Fed. R. Civ. P. 17(b)(1). If a court determines that an individual is a minor or is otherwise incompetent under state law, Rule 17(c) applies to delineate who may sue on behalf of a minor or incompetent person in federal court. See Fed. R. Civ. P. 7(c).
At the time Plaintiff filed the complaint in this action, he was under 18 years old.*fn1 (Compl. ¶ 4, ECF No. 1) Under California law, an individual under 18 years of age is a minor. Cal. Fam. Code § 6502. Defendants argue that because Plaintiff failed to secure a guardian ad litum prior to the issuance of summons, he lacked capacity to sue and therefore the complaint should be dismissed. (Mot. to Dismiss, ECF No. 2--3) Defendants base this argument on the fact that, under California law, "[i]f the minor is the plaintiff the appointment [of a guardian ad litem] must be made before the summons is issued." Cal. Civ. Proc. Code § 373(a). Defendants' reliance on California law beyond determining capacity to sue or be sued is misplaced, however.
Although pursuant to Rule 17(b) the Court must look to the state of an individual's domicile in determining whether the individual has capacity to sue,once the Court determines that the individual is a minor or is otherwise incompetent, Rule 17(c) comes into play. 4-17 Moore's Federal Practice - Civil § 17.21[A]. Thus, in considering the timing of appointing a guardian ad litum, the Court looks to federal law, not state law. See, e.g., Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 135 (3d Cir. 2002) ("A district court need not look to the state law . . . in determining what factors or procedures to use when appointing the guardian ad litem."); Burke v. Smith, 252 F.3d 1260, 1264 (11th Cir. 2001) ("It is well established that the appointment of a guardian ad litem is a procedural question controlled by Rule 17(c)."); S. v. Wermers, 557 F.2d 170, 174 n.4 (8th Cir. 1977) ("[S]uch state rules [governing appointment of guardian ad litum] are procedural rather than substantive and hence need not be applied in federal courts.").
"Unlike California law, [Rule 17(c)] . . . does not contain a time constraint for filing a petition for guardian ad litem." Dean v. City & Cty. of S.F., 2006 U.S. Dist. LEXIS, *2 (N.D. Cal., Mar. 28, 2006) (Magistrate Judge); compare Cal. Civ. Proc. Code § 373(a) ("If the minor is the plaintiff the appointment must be made before the summons is issued."), with Fed. R. Civ. P. 17(c)
("The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person."). Although Plaintiff had not yet secured a guardian ad litum at the time he filed his complaint and the summons was issued, a guardian ad litum has since been appointed. (See Order, July 22, 2011, ECF No. 13) Accordingly, Defendants' motion to dismiss pursuant to Rule 17(b) is DENIED.
FAILURE TO STATE A CLAIM -- RULE 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, - US - , 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." ...