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Michael C. Moore v. City of Ceres

November 10, 2011




Before the Court is Defendants City of Ceres (the "City"), Deputy Chief of Police Mike Borges, K. Kitcher, and D. Vierra‟s (collectively, "Defendants") Motion to Dismiss Plaintiff Michael C. Moore‟s ("Plaintiff") Complaint (Defs.‟ Mot. Dismiss, ECF No. 2). Plaintiff did not file an opposition. For the reasons that follow, the Motion to Dismiss will be granted in part and denied in part.


This civil rights action arises from Officers Kitcher and Vierra‟s ("Defendant Officers") September 27, 2010 arrest of Plaintiff. Plaintiff alleges that Defendant Officers, with Chief Borges‟ approval, conspired to charge Plaintiff with the commission of a crime; assaulted and battered Plaintiff; unlawfully arrested Plaintiff; incarcerated Plaintiff; and compelled Plaintiff to appear and defend himself in court based on false and pretextual criminal charges, which were subsequently dismissed as lacking a factual or legal basis. Compl. ¶ 7, ECF No. 1. On July 22, 2011, Plaintiff filed the Complaint against Defendants in the Superior Court of California, County of Stanislaus, invoking 42 U.S.C. § 1983 and 42 U.S.C. § 1986 and alleging violations of the First, Fourth, Fifth, and Fourteenth Amendments of the Constitution. Compl. Defendants removed the Complaint to this Court on August 22, 2011. Pet. for Removal, ECF No. 1.


Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff‟s "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pac. Prop. & Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). The Court, however, is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937');">129 S. Ct. 1937, 1949 (2009). Furthermore, Courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that the defendants have violated . . . laws in ways that have not been alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court has explained:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff‟s obligation to provide the "grounds‟ of his "entitlement to relief‟ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Thus, to "avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S. Ct. at 1949; see Twombly, 550 U.S. at 570; see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.

The plausibility standard is not akin to a "probability requirement,‟ but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with‟ a defendant‟s liability, it stops short of the line between possibility and plausibility of "entitlement to relief.‟ . . .

Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.

Iqbal, 129 S. Ct. at 1949-50 (citations omitted). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory "factual content,‟ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).


A.42 U.S.C. § 1983 Claims

Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .. 42 U.S.C. § 1983. "Section 1983 does not create any substantive rights, but is instead a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). To state a claim under 42 U.S.C. § 1983, a plaintiff must show (1) the violation of a right secured by the Constitution or a federal law, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988). Here, Plaintiff asserts Section 1983 claims against Defendants for violation of the First, Fourth, Fifth, and Fourteenth Amendments. Defendants contend that the Complaint does not contain sufficient allegations of any Constitutional violations.

1.First Amendment Claims

The nature of Plaintiff‟s First Amendment claims is unclear. Defendants move to dismiss Plaintiff‟s First Amendment claims, ostensibly for violation of right to privacy, access to the courts, and familial association. Other than listing these alleged violations, however, the Complaint does not contain any factual allegations that are remotely related to Plaintiff‟s asserted First Amendment claims. There is no allegation related to privacy or violation of privacy, no allegation that Defendants denied Plaintiff access to the courts, and no assertion related to any of Plaintiff‟s ...

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