The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through this action, Plaintiffs Thomas Ludavico, Sr. ("Ludavico"), Ashley Ludavico and Thomas Ludavico, Jr. seek redress from Defendants Sacramento County, Sacramento Sheriff's Department*fn1 , Sheriff John McGinness, Sergeants Greg Hanks and Chris Mora, and Deputies Adrian Zuniga, Daniel Zuniga, Sydow, Dexter Powe, Michael Heller, Brett Schannep, and Chris Weightman, and others, based on alleged civil rights violations pursuant to 42 U.S.C. § 1983.
Plaintiffs also seek redress for multiple claims brought under California state law. Presently before the Court is Defendants' Motion to Dismiss (ECF No. 91) Plaintiffs' Third Amended Complaint ("TAC") (ECF No. 90) for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn2 Defendants filed their Motion on July 19, 2012, and Plaintiffs filed a timely opposition (ECF No. 92).
Plaintiffs' TAC asserts seven causes of action, with Ludavico bringing the initial five causes of action and all three Plaintiffs asserting the last two. The first two causes of action are for excessive force in violation of the Fourth, Fifth, and Eighth Amendments, brought pursuant to 42 U.S.C. § 1983. The third cause of action is for negligent hiring, supervision, training and retention, in violation of Fourteenth Amendment, also brought pursuant to 42 U.S.C. § 1983. The fourth cause of action alleges a state law claim for negligence; the fifth, assault and battery; the sixth, negligent and intentional infliction of emotional distress against all Defendants; and the seventh, negligent and intentional infliction of emotional distress against Defendants Sacramento County and McGinness.
Defendants seek complete and final dismissal of Plaintiffs' second, third and seventh causes of action. (ECF Nos. 91 and 93.) Defendants ask that the Court dismiss the first cause of action as to all defendants except Defendants Heller, Schannep and Weightman. (ECF No. 93 at 1-3.)
Defendants seek final dismissal of the fourth, fifth, and sixth causes of action, except as asserted against Defendants Schannep and the County. (Id. at 7-10.) Defendants also seek to prevent Plaintiffs from adding parties to the sixth cause of action. (Id. at 9.) For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.
On or about May 14, 2007, Plaintiff Ashley Ludavico found a note left by Ludavico, her father, that possibly indicated his intention to commit suicide. Plaintiff Ashley Ludavico then requested that Defendant Sacramento County Sheriff's Department perform a wellness check on her father. Defendants Sydow and Daniel Zuniga were dispatched to Ludavico's home to perform the check.
Before either Defendant deputy exited the patrol car, Ludavico saw at least two additional patrol cars park in front of his house. Ludavico then observed Defendants Powe and Adrian Zuniga approach his home. Defendant Adrian Zuniga was crouching with his weapon unholstered. At this point, Ludavico proceeded to walk out his front door with his hands in the air. Ludavico also raised his shirt while turning around to allow Defendants to establish that he was unarmed.
Ludavico subsequently asked Defendant Adrian Zuniga to explain why he was at Ludavico's residence. Instead of responding, Defendant Adrian Zuniga ordered Ludavico to the ground.
Before Ludavico could comply with Defendant Adrian Zuniga's command, and without Defendants suspecting Ludavico's involvement in any criminal activity, Defendants Schannep and Heller struck Ludavico from behind and forcibly brought him to the ground. Once Ludavico was on the ground, Defendant Heller hit him in the stomach and face and Defendant Schannep struck him in the back and side of his head. Defendant Weightman then discharged a stun gun on Ludavico at least twice. Due to the nature of the incident, Ludavico is unable to provide the exact identities and actions of everyone involved. The altercation occurred in the presence of Ludavico's two minor children, Plaintiffs Ashley Ludavico and Thomas Ludavico, Jr.
Although Ludavico made no threatening motions or comments to Defendants, except for objecting to their conduct, the Deputies took Ludavico into custody for battery on a police officer. Ludavico received medical treatment when he first arrived at the Sacramento County Jail. Although Defendants knew of Ludavico's injuries, the medical care ceased once authorities booked him into the jail. As a result of the incident at Ludavico's home and his subsequent treatment at the jail, Ludavico states that he suffered damage to various parts of his body. All Plaintiffs seek compensation for pain and suffering and emotional distress.
In compliance with California Government Code section 945.4, Plaintiffs filed the requisite tort claim against Defendants Sacramento County, Sacramento County Sheriff's Department, Jim Rose, and Deputies Adrian Zuniga, Daniel Zuniga, Mueller, Powe, and Schannep. (ECF No. 68, Ex. A.) Plaintiffs claim they adhered to applicable government statutes by filing the 2007 tort claim against all then known Defendants. (ECF No. 92 at 14-15.)
LEGAL STANDARD UNDER 12(b)(6)
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations, "a plaintiff's obligation to provide the grounds of his entitlement 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 (internal citations omitted.) "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
Furthermore, a court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555.) "Rule 8(a)(2) . . . requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (internal citations omitted). "But where 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.'" Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). "Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirements of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Twombly, 550 U.S. 556 n.3 (internal citation omitted). A pleading must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. If the "plaintiffs . . . have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed." Id. A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. A court should "freely give" leave to amend when there is no "undue delay, bad faith[,] or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is denied only when it is clear the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
Defendants move to dismiss all seven causes of action set forth in Plaintiffs' TAC. The Court will discuss each cause of action in turn.
A. 42 U.S.C. § 1983: Fifth Amendment Excessive Force Claim Plaintiffs' first cause of action alleges that Defendants' use of excessive force violated Ludavico's Fifth Amendment right to due process. However, Plaintiffs' Opposition concedes that the Fifth Amendment claim is not viable. (ECF No. 92 at 8.) The Fifth Amendment only applies to the federal government.
Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). Because each Defendant in this lawsuit is a state actor, the Fifth Amendment claim cannot stand. This claim is ...