The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
This action, in which plaintiff is proceeding pro se, has been referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(21). Previously pending on this court's law and motion calendar for November 17, 2011, was defendants' motion to dismiss the first, second, and third causes of action in the second amended complaint, and to strike certain allegations, filed October 7, 2011. Plaintiff has filed an opposition, to which defendants have filed a reply. Plaintiff appeared in pro se. Defendants were represented by Andrew Caulfield.
Upon review of the motion, the documents in support, and the opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS.
Plaintiff brings this action against El Dorado County and two deputy sheriffs, Ken Brown and Scott Crawford, in regard to their treatment of her during two visits to the El Dorado County courthouse. Before the court is the second amended complaint, filed September 26, 2011. Plaintiff alleges that these deputies "wrongfully detained [her], utilized excessive physical violence and force upon her in a public place, battered her, permanently injured her, and arrested her in violation of her rights as guaranteed her by the United States Constitution, federal civil rights laws, and California law." (SAC ¶ 1.) Plaintiff seeks compensatory and punitive damages.
In findings and recommendations which were later adopted by the district court, the undersigned recommended that all claims of unlawful arrest should be dismissed with prejudice based on absolute quasi-judicial immunity, and that the Monell claims as alleged in the first and third causes of action should be dismissed with leave to amend to state more than mere conclusions. Plaintiff has filed a second amended complaint which defendants have moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), and to strike certain allegations pursuant to Rule 12(f),*fn1 asserting that the SAC has simply removed the term, "wrongful arrest" and replaced it with "wrongful seizure" which has essentially the same meaning. Defendants seek to dismiss and to strike any claims for wrongful seizure or wrongful arrest. They also move to dismiss any Monell claims based on wrongful seizure or arrest and to strike such allegations. In opposition, plaintiff asserts that she removed all references to "wrongful arrest," in her SAC, just as the court directed. Plaintiff also points out that between the filing of the first and second amended complaint, Judge Wagoner was admonished by the Commission on Judicial Performance for wrongfully persecuting plaintiff. (Opp. at 3.)
I. Legal Standards A. Motion to Dismiss
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;"
it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] 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) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll ...