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Russell Sedgwick, Cdcr #V-29365 v. Unknown K-9 Handler

June 19, 2012

RUSSELL SEDGWICK, CDCR #V-29365,
PLAINTIFF,
v.
UNKNOWN K-9 HANDLER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER GRANTING DEFENDANT COUNTY OF SAN DIEGO'S MOTION TO DISMISS; [Doc. No. 10] IN PART DEFENDANT CORNWELL'S MOTION TO DISMISS [Doc. No. 12] GRANTING IN PART & DENYING

Russell Sedgwick ("Plaintiff"), a state prisoner currently incarcerated at Richard J. Donovan Correctional Facility in San Diego, California, and proceeding pro se, has filed a civil action pursuant to 42 U.S.C. § 1983, alleging various defendants violated his Fourth, Eighth, and Fourteenth Amendment rights. Defendants County of San Diego and Agent S. Cornwell move to dismiss Plaintiff's claims. Plaintiff has not responded to either motion.*fn1 For the reasons set forth below, the Court GRANTS Defendant County of San Diego's motion and GRANTS IN PART and DENIES IN PART Defendant Cornwell's motion.

BACKGROUND

Plaintiff complains of events occurring on or about April 15, 2011, when he was attacked and mauled by a police dog.*fn2 According to Plaintiff, the San Diego Sheriff's Department received an anonymous tip that Plaintiff was in a house, and they responded to the call because Plaintiff had an outstanding bail warrant. When the deputies arrived, Plaintiff was unconscious under the house. Despite Plaintiff's condition, a police canine handler commanded his dog to attack Plaintiff. Plaintiff claims that he awoke, trapped under the house, while his screams for help went unheeded by the law enforcement personnel present at the scene. The mauling lasted thirty to forty minutes, leaving Plaintiff's arms and legs permanently scarred. The canine officer never called off the attack. Plaintiff was taken to the hospital, where he spent three days recovering from his injuries.

Plaintiff brings this action against the unknown police canine handler,*fn3 the unknown police dog,*fn4 the San Diego Sheriff's Department, the County of San Diego, and Parole Agent Cornwell of the Southeast Fugitive Apprehension Team. Plaintiff alleges the attack constituted excessive force in violation of his Fourth Amendment right to be free from unreasonable seizures, his Eighth Amendment right to be free from cruel and unusual punishment, and his Fourteenth Amendment due process rights.*fn5 Plaintiff also alleges pursuant to 42 U.S.C. § 1985(2) that Defendants engaged in a conspiracy to interfere with his civil rights by obstructing justice. According to Plaintiff, Defendants covered up his attack and denied him access to his police and medical records. Defendants County of San Diego and Agent Cornwell move to dismiss Plaintiff's claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6).

DISCUSSION

1. Legal Standard

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 Cnty. 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 U.S. 544, 563 n.8 (2007)]." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).

A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 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." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004), citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); N.L. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

2. Standards Applicable to Pro Se Litigants

Where a plaintiff appears in propria persona in a civil rights case, the Court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).

The Court must give a pro se litigant leave to amend his complaint "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted), citing Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). Thus, before a pro se civil rights complaint may be dismissed, the court must provide the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi, 839 F.2d at 623-24. But where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).

3. Defendant County of San Diego

Defendant County of San Diego, sued as both the County and as the "San Diego Sheriff's Department," moves to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). First, the County argues that the San Diego Sheriff's Department is not a proper defendant in this action, as it is not a legal entity subject to suit. An agency or department of a municipal entity is not a proper defendant under Section 1983. Vance v. Cnty. of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). Rather, the county or city itself is ...


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