The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Doc. No. 7]
Plaintiff Kenneth Prettyman, proceeding pro se, initiated this civil
rights case on January 31, 2011. On June 21, 2011, Defendants San
Diego Police Department ("SDPD") and Officer Christopher Luth
(collectively "Defendants") filed a Motion to Dismiss the Complaint,
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted. [Doc. No. 7.]*fn1
Thereafter, Plaintiff opposed the motion [Doc. No. 14], and
Defendants replied. [Doc. No. 15.] The Court found the motion suitable
for decision on the papers and without oral argument pursuant to Civil
Local Rule 7.1(d)(1). For the reasons set forth below, the Court
GRANTS Defendants' motion.
This action arises from events related to Plaintiff's arrest by SDPD
officer, Christopher Luth. [Cmplt., Doc. No. 1, p. 3.]*fn2
On March 3, 2008, Officer Luth almost struck Plaintiff with
his patrol vehicle while he crossed a street. [Id.] Officer Luth then
turned his vehicle around and said to Plaintiff, "sit your black ass
down." [Id.] According to Plaintiff, Officer Luth grabbed his shirt
collar, which prompted a struggle between the two individuals. [Id.]
During the struggle, Officer Luth kicked Plaintiff to the ground and
punched the right side of Plaintiff's face four or five times. [Id.]
After the altercation, Plaintiff was arrested and Deputy City Attorney
Michael Ficken pressed charges against him. [Id.] The criminal case
against Plaintiff ultimately went to trial, but ended on August 27,
2008 in a mistrial due to a deadlocked jury. [Id.]*fn3
This is Plaintiff's second civil rights action concerning the March 3, 2008 incident. Initially, Plaintiff filed an action in the San Diego Superior Court on February 2, 2010. [Doc. No. 7-1, Exh. A.] On March 2, 2010, Defendants removed the action to this Court. [Id. at p. 2.] The suit stalled because Plaintiff requested two continuances and one extension of time. [See Kenneth Prettyman v. San Diego Police Department, et al., U.S. District Court Case No. 10-cv-0463 MMA (RBB), Doc. Nos. 6, 19, 22.] Eventually, Plaintiff moved to voluntarily dismiss the action under Federal Rule of Civil Procedure Rule 41(a)(2). [Id. at Doc. No. 29.] The Court granted Plaintiff's motion and dismissed the suit without prejudice on November 1, 2010. [Id.]
On January 31, 2011, Plaintiff filed the present action, alleging violations of section 1983 predicated on three separate theories: (1) Officer Luth assaulted Plaintiff, thereby subjecting him to cruel and unusual punishment in violation of the Eighth Amendment; (2) Officer Luth falsely arrested and imprisoned Plaintiff in violation of the Eighth Amendment; and (3) Officer Luth and Deputy City Attorney Michael Ficken conspired against Plaintiff in violation of the Fifth, Eighth, and Fourteenth Amendments. [Id.]*fn4 On June 21, 2011, Defendants moved to dismiss Plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
I. REQUEST FOR JUDICIAL NOTICE
In support of their motion to dismiss, Defendants request the Court take judicial notice of the following: (1) all pleadings, documents, records, and orders contained in the first lawsuit against Defendants, case number 10-cv-0463 MMA (RBB); and (2) the fact that the SDPD is a municipal department of the City of San Diego. [Doc. No. 7-1, pp. 2, 6.]
Under Federal Rule of Evidence 201(b), federal courts may take judicial notice of facts not "subject to reasonable dispute" and capable of immediate and accurate determination by resort to a source whose accuracy cannot reasonably be questioned. FED. R. EVID. 201(b)(1)- (b)(2); Muhammad v. Cal., 2012 U.S. Dist. LEXIS 26339 *16-17 (N.D. Cal. Feb. 29, 2012). This includes matters of public record found outside of the pleadings, such as court records, orders, and other documents related to the proceeding. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Thus, the Court GRANTS Defendants' request for judicial notice with respect to the pleadings, documents, records, and orders from Plaintiff's prior case against Defendants.
However, the Court declines to take judicial notice of the fact that the SDPD is a municipal department of the City of San Diego. [Doc. No. 7-1, p. 6.] Defendants erroneously assert section 22.0601 of the San Diego Municipal Code supports their request. [Id.] This provision establishes the duties of the SDPD, but does not identify the SDPD as a municipal department. [Doc. No. 7-5, Exh. C.] Because the Court cannot immediately determine whether the SDPD is a municipal entity solely by consulting the cited source, Defendants' request for judicial notice of this fact is DENIED.
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). "The old formula -- that the complaint must not be dismissed unless it is beyond doubt without merit -- was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 ...