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Armando Jauregui v. Huntington Beach California Police Department

January 20, 2012

ARMANDO JAUREGUI, PLAINTIFF,
v.
HUNTINGTON BEACH CALIFORNIA POLICE DEPARTMENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

ORDER RE DISMISSAL OF COMPLAINT WITH LEAVE TO AMEND

Armando Jauregui (hereinafter referred to as "Plaintiff") filed a civil rights Complaint pursuant to 42 U.S.C. §1983 in the United States District Court for the Central District of California on November 10, 2011 pursuant to the Court's Order re Leave to File Action Without Prepayment of Full Filing Fee.

BACKGROUND

Plaintiff alleges that Defendants Huntington Beach Police Department and John Doe Police Officers No. 1 and No. 2, in their individual and official capacities violated his civil rights on October 15, 2009. (See Complaint at 2-6.) Plaintiff alleges that he was sitting in a car owned by his friend when a Huntington Beach police officer patrolling the beachfront residential properties pulled his police cruiser in front of Plaintiff's car. Defendant John Doe No. 1 police officer came to the driver's side of Plaintiff's vehicle. Plaintiff had been standing outside the vehicle at the rear when the Defendant John Doe No.1 police officer 'demanded to know [Plaintiff's] business on the street." (Complaint, attached pgs. i,ii.) Plaintiff could not produce identification and tried to explain to the officer that he was waiting for his friend. Defendant John Doe No. 1 police officer asked permission to search the car and told Plaintiff to go to the back of the car during the search. After the search Defendant John Doe No. 1 police officer began to walk to the back of the vehicle to talk to Plaintiff. At that time,Plaintiff saw a second patrol car and became nervous and frustrated that his friend had not appeared. (Complaint, attached p. iii) Plaintiff said "Oh for God's sake" and then reached down to his waist for his cell phone, whereupon Defendant John Doe No. 1 police officer demanded that Plaintiff put his hands behind his back. Plaintiff asked to call his friend's boss to clear things up but Defendant John Doe No. 1 demanded Plaintiff place his hands behind his back. Id. Plaintiff became upset and asked the officer "Why are you arresting me?;" however, the officer did not respond but demanded Plaintiff put his hands behind his back. Thereafter, Plaintiff alleges Defendant John Doe No. 1 police officer rushed him yelling "I told you to turn around," and began to grapple with Plaintiff's wrists and forearms. (Complaint, attached p. iiii) Plaintiff alleges he moved away from the officer to the center of the street. Id.

Plaintiff alleges that Defendant John Doe No. 2 police officer arrived and wrestled Plaintiff to the ground. Plaintiff alleges Defendant John Doe No. 1 police officer hit him in the face and head. (Complaint, attached page iiii.)

Plaintiff alleges that Defendants committed police brutality, assault and excessive force and violated his rights under the Fourth Amendment. Plaintiff seeks compensatory damages in the amount of $50,000 against Defendants John Does No. 1 and No. 2.

STANDARD OF REVIEW

Because Plaintiff is seeking to proceed in forma pauperis, the Court shall review such a complaint "as soon as practicable after docketing." Pursuant to 28 U.S.C. §1915(e)(2), the district court is required to dismiss a complaint if the Court finds that the complaint

(1) is legally frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief from a Defendant immune from such relief. 28 U.S.C. §1915(e)(2)(B) (re: all in forma pauperis complaints).

A complaint may also be dismissed for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). Neitzke v. Williams, 490 U.S. 319, 327 n. 6, 109 S. Ct. 1827 (1989) (unanimous decision) (patently insubstantial complaint may be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction. "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3) (emphasis added). A challenge to the Court's subject matter jurisdiction can be raised at any time, including sua sponte by the Court. Emrich v. Touche Ross and Co., 846 F.2d 1190, 1194 n. 2. (9th Cir. 1988). "To survive a motion to dismiss, 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 (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." Iqbal, 129 S.Ct. 1937, 1949, 172 L.Ed.2d 868 (2009)(citing Twombly, 550 U.S. at 556.) "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant acted unlawfully." (Id.) Although a complaint need not include "'detailed factual allegations,' ... [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of the cause of action will not do.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555. The Complaint must contain "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. "[W]here 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 'show[n]' - 'that the pleader is entitled to relief.'" (Id. at 1950 [quoting Fed.R.Civ.P. 8(a)(2) (internal brackets omitted). "[A] well-pled complaint may proceed even if it appears that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).

In civil rights cases in which the Plaintiff appears pro se, the pleadings must be construed liberally, so as to afford the Plaintiff the benefit of any doubt as to the potential validity of the claims asserted. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). If, despite such liberal construction, the Court finds that the complaint should be dismissed for failure to state a claim, the Court has the discretion to dismiss the complaint with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). A pro se litigant should be given leave to amend, unless it is clear that the deficiencies of the complaint cannot be cured by amendment. Lopez, 203 F.3d at 1130-31; Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1998); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). A pro se litigant must follow the Rules of Procedure like any other litigant. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.), cert. denied, 516 U.S. 838 (1995).

A. Federal Rule of Civil Procedure 8(a).

Any complaint filed in this Court must contain (1) "a short and plain statement of the grounds upon the Court's jurisdiction depends" and (2) "a short and plain statement of the claim" showing that the Plaintiff is entitled to relief. Fed. R. Civ. P., Rule 8(a). "The Plaintiff must allege with at least some degree of particularity overt acts which Defendants engaged in that support ...


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