MEMORANDUM AND ORDER RE: ROSS MARKET'S AND UNITED STATES' MOTIONS TO DISMISS FIRST AMENDED COMPLAINT
Plaintiff Micah Godfrey brought this action against defendants Tony Ross, City of Tulelake (the "City"), Dan Silva, Siskiyou County (the "County"), Travis Hall, Terry Harris, Laura Bellasalma, United States of America, Erin Martin,*fn1 and Ross Market arising out of defendants' allegedly wrongful violation of plaintiff's Fourth, Fifth, and Fourteenth Amendment rights.
Presently before the court is Ross Market's motions to dismiss the First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6), (Docket No. 40), and the United States of America's motion to dismiss the FAC pursuant to Rule 12(b)(1), (Docket No. 37).
I. Factual and Procedural Background
On January 21, 2010, plaintiff alleges that he was shopping at Jock's Market when Martin pulled a gun on him. (FAC ¶ 27.) Plaintiff alleges that Martin was angry at him for not shopping at Ross Market, a grocery store owned by Ross, Martin's step-father, and because plaintiff is bisexual, part Native-American, and bipolar. (Id. ¶¶ 28-29.) The FAC states that Martin was employed as a manager at Ross Market. (Id. ¶ 75.) The FAC also states that Ross was the owner of Jock's Market. (Id. ¶ 128.)
On March 11, 2010, plaintiff was arrested at the Lava Beds National Park on gun charges. (Id. ¶ 33.) Plaintiff was subsequently taken to the Tulelake City jail. (Id.)
Plaintiff alleges that while he was held in jail, the individual defendants committed rape, sodomy, sexual assault, assault, and battery against plaintiff. (Id. ¶ 34.) Plaintiff further alleges that he was zapped with a Taser at least 15 times, (id. ¶ 37), he was repeatedly hit in the head with defendants' fists or a club, (id. ¶ 38), that Ross shoved a cattle prod up his anus, (id.), and that Harris pointed a gun at him, (id. ¶ 39). Plaintiff alleges that Ross was motivated to harm him because of plaintiff's prior encounter with Martin, Ross's step-daughter, and because he is bisexual, part Native American, a user of medical marijuana, bipolar, and watches television shows that are adverse to authority figures, and that the other defendants knew of this motivation and "joined in." (Id. ¶ 47.) Plaintiff claims that these actions were in violation of his Fourth, Fifth, and Fourteenth Amendment rights. (Id. ¶¶ 24-26, 50, 51, 53, 55, 62, 63.)
Plaintiff filed his Complaint in this case on August 30, 2011, alleging seven claims for relief. (Docket No. 2.) On December 1, 2011, the court granted motions to dismiss the state law tort claims against the City, the County, and Ross, with leave to amend. (Docket No. 29.) Plaintiff filed his FAC on December 19, 2011, alleging five remaining claims for relief.*fn2
Ross Market is named in the fifth claim, assault with a deadly weapon, and is referenced in the seventh claim, violation of California's Unruh Civil Rights Act ("Unruh Act"). (FAC ¶¶ 73-81, 93-104.) The United States is named in the first and second claims: violation of the Federal Civil Rights Act, 42 U.S.C. § 1983, and a Bivens claim. (Id. ¶¶ 22-72.)
A. Ross Market's Motion to Dismiss On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, 556 U.S. 662, ------, 129 S. Ct. 1937, 1949 (2009), and "[w]here 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.'" Id. (quoting Twombly, 550 U.S. at 557).
i. Assault with a Deadly Weapon (Fifth Claim)
Under California law, a principal or employer is liable for the torts of his agent or employee committed while acting within the scope of his employment. Perez v. Van Groningen & Sons, Inc., 41 Cal. 3d 962, 967 (1986); 2 B.E. Witkin, Summary of California Law § 115, at 109 (9th ed. 1987). Respondeat superior includes liability for an employee's intentional tort as well as negligence. Rodgers v. Kemper Constr. Co., 50 Cal. App. 3d 608, 621 (1975) (noting that in California, the same test is used to determine an employer's liability for an employee's intentional tort as to determine his liability for an employee's negligence).
The scope of an agent or employee's employment is "work [the agent or employee] was employed to perform, during his working hours." 2 Witkin, Summary of California Law § 126, at 121. The act need not be committed to further the employer's interest in order to fall within the scope of employment. Lisa M. v. Henry Mayo Newhall Mem'l Hosp., 12 Cal. 4th 291, 297 (1995). However, if the employee's main purpose was the pursuit of his own personal ends, the employer is not liable. Le Elder v. Rice, 21 Cal. App. 4th 1604, 1607 (4th Dist. 1994).
To be within the scope of employment, the employee's act must be required or incident to his duties, or reasonably foreseable by the employer. Clark Equip. Co. v. Wheat, 92 Cal. 3d 503, 520 (1979); see also Lisa M., 12 Cal. 4th at 297 (the intentional tort must have a "causal nexus" with the employee's work). Foreseeability "merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Lisa M., 12 Cal. 4th at 299 (quoting Rodgers, 50 Cal. App. 3d at 619. Generally, the issue of scope of employment is a question of fact. Perez, 41 Cal. 3d at 968. Where the evidence clearly shows a complete abandonment ...