The opinion of the court was delivered by: Honorable Janis L. SammartinoUnited States District Judge
ORDER (1) ADOPTING REPORT DENYING IN PART DEFENDANTS' MOTION TO AND RECOMMENDATION AND (2) GRANTING IN PART AND DISMISS (ECF Nos. 20, 29)
Presently before the Court is Defendants D. Uribe Jr., L. Calderon, L. Valenzuela, J. Sais, D. Foston, and J. Martinson's (collectively, "Defendants") motion to dismiss Plaintiff Jawanta J. Lambert's ("Plaintiff") complaint. (Mot. to Dismiss, ECF No. 20) Also before the Court are Magistrate Judge Ruben B. Brooks's Report and Recommendation ("R&R") recommending the Court grant in part and deny in part Defendants' motion, (R&R, ECF No. 29), Defendants' notice of non-objection to the R&R, (Not. Non-Obj., ECF No. 30), and Plaintiff's objections to the R&R, (Obj., ECF No. 34).*fn1
Magistrate Judge Brooks's R&R contains a thorough and accurate recitation of the procedural history and facts underlying Plaintiff's pro se 42 U.S.C. § 1983 complaint. (R&R 1--4, ECF No. 29) This Order incorporates by reference the facts as set forth in the R&R. In short, the present dispute arises out of an alleged excessive use of force by Defendant Martinson during an April 21, 2009, encounter with Plaintiff. (Compl. 3, ECF No. 1) Martinson began by using verbally abusive language to address Plaintiff. Eventually, Martinson ordered Plaintiff to "cuff up," and Plaintiff stood with his back to Martinson and with his arms at his sides. (Id.) At this point, Martinson physically harmed Plaintiff by yanking him to the floor and bending his arm behind his back until his shoulder popped. He continued to use excessive force by slamming Plaintiff down on a table and kicking him repeatedly. (Id.)
1. Review of the Report and Recommendation
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's R&R. The district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the [magistrate judge]." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 673--76 (1980). However, in the absence of a timely objection, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand more than an unadorned, the- defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 557).
"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.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 1950 (citation omitted). "[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. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Cal. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990).
Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.
Magistrate Judge Brooks recommended that the claim against Valenzuela be dismissed with prejudice because no substantive allegations were directed against him and because Plaintiff did not oppose the motion to dismiss Valenzuela. (R&R 9, ECF No. 29) Plaintiff does not object to this portion of the R&R. (See Obj., ECF No. 34) Having reviewed the R&R as to Valenzuela, the Court finds that it is ...