This matter comes before the court upon defendants' motion to dismiss. (ECF 6.) The court decided this motion without a hearing. For the following reasons, defendants' motion is granted, and plaintiff is given leave to amend.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff alleges that on January 16, 2011 she was mistaken for a shoplifter by law enforcement officers when leaving a CVS store. (Compl. ¶¶ 12-15, ECF 1.) Defendant Officer Barry ("Barry") approached plaintiff, told her she "'fit the description' of a black female shoplifter," and refused to contact CVS employees to verify her statements absolving herself of any wrongdoing. (Id. ¶¶ 14-16.) She was placed under arrest by other officers, thrown to the ground, and shot with a Taser. (Id. ¶¶ 17-18.) At some point, Barry issued plaintiff a misdemeanor citation for obstructing a peace officer. (Id. ¶ 20.)
On October 26, 2011, plaintiff filed her complaint against the County of Sacramento ("County"), City of Rancho Cordova ("City") and Barry,*fn1 alleging seven (7) causes of action: 1) excessive force, invoking 42 U.S.C. § 1983, against all defendants; 2) false arrest, invoking 42 U.S.C. § 1983, against all defendants; 3) municipal liability, invoking 42 U.S.C. § 1983, against the County and the City; 4) common law battery against all defendants; 5) interference with civil rights in violation of Cal. Civ. Code § 52.1 against all defendants; 6) violence based on race in violation of Cal. Civ. Code § 51.7 against all defendants; and 7) common law negligence against all defendants.
Defendants filed the present motion to dismiss on February 7, 2012. (ECF 6.)
Plaintiff filed her opposition on March 9, 2012. (ECF 8.) Defendants filed their reply on March 16, 2012. (ECF 9.)
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001).
1. Excessive force, invoking 42 U.S.C. § 1983
Defendants contend plaintiff has not alleged that Barry used any force against her. (Mot. at 3.) Plaintiff counters her complaint alleges Barry used force against her as her "use of the plural (deputies/officers) necessarily includes" him. (Opp'n at 3.) She also contends Barry can be liable on an integral participation theory and, in the alternative, for not interceding when the other officers used excessive force against her. (Id. at 4.) Defendants respond that "[t]he existence of additional theories of liability . . . does ...