ORDER AND FINDINGS AND RECOMMENDATIONS
This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendants Placer County Sheriff's Department ("Sheriff's Department") and Placer County Sheriff's Deputy Ryan Zender ("Zender") move to dismiss plaintiff's third amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6).*fn1 For the reasons set forth herein, it is recommended that the motion be granted in part and denied in part.
This case concerns a search of plaintiff and his vehicle following a traffic stop.
Plaintiff's third amended complaint alleges the following claims for relief against all defendants:
(1) a claim under 42 U.S.C. § 1983 for violation of plaintiff's Fourth Amendment rights, Third Am. Compl. ("TAC") ¶¶ 25-29; (2) racial profiling, in violation of California Penal Code section 13519.4, id. ¶¶ 30-36; (3) negligent infliction of emotional distress, id. ¶¶ 37-41; (4) invasion of privacy, misuse of legal procedure, and negligence, id. ¶¶ 42-49; (6) a claim under 42 U.S.C. § 1983 for conspiracy,*fn2 id. ¶¶ 59-67; and (7) a claim for declaratory relief, id. ¶¶ 68-72. Plaintiff also alleges a claim against the Sheriff's Department and Sheriff's Council for unlawful and unfair business practices in violation of California Business and Professions Code section 17200 (plaintiff's fifth claim for relief). Id. ¶¶ 50-58.
Plaintiff alleges that on August 18, 2008, between 12:01 a.m. and 2:00 a.m., Zender stopped plaintiff for a broken taillight violation, California Vehicle Code section 24252(a), while plaintiff was driving in Citrus Heights, California. Id. ¶ 12. Plaintiff alleges that Zender ordered plaintiff and his two passengers out of the vehicle and proceeded to perform a search without consent, a warrant, or probable cause. Id. ¶¶ 13-14. Plaintiff alleges the scope of Zender's search included the interior of the vehicle, the interior of the glove box, and the interior of a zippered back pack located in the "box of the bed." Id. ¶ 13. Plaintiff alleges that the stop was for the purpose of searching plaintiff and his occupants, and was based on plaintiff's race (as an African American). Id. ¶¶ 13, 17. Plaintiff also alleges that he was subjected to a frisk and patdown search by Zender, even though neither Zender, nor any of the other officers, held any suspicion that any crime was being committed or that plaintiff was armed or dangerous. Id. ¶¶ 14, 16, 33, 44, 62. According to plaintiff, nothing was found on any party during the search, nor was anything found inside the vehicle and its contents. Id. ¶ 14.
Plaintiff further asserts that two other Sheriff's Department patrol cars arrived at the scene and "assisted, conspired, and aided and abetted and operated with Officer Zender in this unconsented search." Id. ¶ 15. Plaintiff alleges the stop lasted "well over one-half hour or longer." Id. ¶ 16. Plaintiff was issued a traffic citation which was eventually dismissed. Id. ¶ 22. Plaintiff alleges that the Sheriff's Department and Sheriff's Council "seem to have a policy and custom to allow police to violate constitutional rights of citizens," and that they "fail to properly train [their] employees based on this policy and custom which in a relevant respect evidences a 'deliberate indifference' to the rights of its inhabitants." Id. ¶ 19.
The Sheriff's Department and Zender move to dismiss plaintiff's complaint pursuant to Rule 12(b)(6), arguing that (1) plaintiff's § 1983 Fourth Amendment claim should be dismissed because plaintiff failed to plead facts sufficient to state a claim for violation of his Fourth Amendment rights, Zender is entitled to qualified immunity on that claim, and plaintiff failed to name a proper entity for municipal liability purposes under § 1983; (2) plaintiff's § 1983 conspiracy claim should be dismissed since plaintiff failed to allege sufficient facts to support that claim; and (3) plaintiff's racial profiling claim under California Penal Code section 13519.4 should be dismissed since that statute does not apply to the facts alleged in plaintiff's complaint. See generally Mot. to Dism., Dckt. No. 37-1. Id. The motion does not specifically address plaintiff's remaining state law claims, but contends that those claims should be dismissed pursuant to 28 U.S.C. § 1367(c)(3) "in the absence of a viable federal claim." Id. at 12.
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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (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, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. 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 v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
B. Plaintiff's § 1983 Fourth Amendment Claim
1. Failure to Plead Sufficient Facts
The Sheriff's Department and Zender move to dismiss plaintiff's § 1983 action for violation of his Fourth Amendment rights, arguing that plaintiff failed to plead sufficient facts to support that claim since the search of plaintiff and his vehicle were lawful. Dckt. No. 37-1 at 4-7.
"To state a claim under § 1983, a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law."*fn3 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). "An intrusion by the police in the form of a search and seizure is arbitrary, and therefore 'unreasonable,' if not authorized by law." Cohen v. Norris, 300 F.2d 24, 31 (9th Cir. 1962). "The only intrusions by the police which are authorized are those: (1) which are made under a valid search warrant, incident to a valid arrest, or under exceptional circumstances which dispense with the need of a search warrant; and (2) where the actual purpose of the officers in making the search is to ascertain whether articles which the officers have a right to seize are on the person or premises being searched." Id. (internal citations omitted); see also United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001).
Plaintiff contends Zender violated his constitutional rights by conducting a patdown search of plaintiff, arguing that there was no basis for Zender to believe that plaintiff was armed or dangerous, as required to justify the patdown. TAC ¶¶ 16, 18, 62.
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that in certain instances, an investigatory stop (temporary detention) and frisk (patdown for weapons) may be conducted without violating the Fourth Amendment's ban on unreasonable searches and seizures. Specifically, the Court held that (1) the investigatory stop must be lawful, and (2) to proceed from a stop to a frisk, the officer must reasonably suspect that the person stopped is armed and dangerous. Id.; see also Arizona v. Johnson, 555 U.S. 323, 326 (2009) ("To justify a patdown of the driver or a passenger during a traffic stop . . . the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous."); Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1997) (applying the Terry standard to traffic stop patdowns, the officer must be able to point to particularized facts from which he reasonably inferred plaintiff was armed and dangerous). "This frisk is limited to a patdown of the exterior clothing." United States v. Johnson, 581 F.3d 994, 999 (9th Cir. 2009). "Nothing in Terry can be understood to allow a generalized 'cursory search for weapons' or indeed, any search whatever for anything but weapons. The 'narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked . . . ." Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979).
Here, plaintiff does not allege that the stop was unlawful. In fact, plaintiff concedes that there was a hole in his taillight. TAC ¶ 12. However, plaintiff contends that the subsequent patdown search of plaintiff was unlawful since Zender did not ...