ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF NO. 7)
GONZALO P. CURIEL, District Judge.
On January 24, 2013, Plaintiff filed a complaint, asserting claims for violations of his civil rights and various common law torts. (ECF No. 1.) Before the Court is Defendants' Motion to Dismiss, (ECF No. 7), which has been fully briefed, (ECF Nos. 9, 10), and which the Court finds suitable for disposition without oral argument, see CivLR 7.1.d.1. After a careful review of the parties' submissions, and for the following reasons, the Court will GRANT Defendants' Motion to Dismiss. Plaintiff's First, Third, Fourth, Fifth, and Sixth Claims as alleged against defendants Brock and Steadmon in their individual capacities are DISMISSED WITH LEAVE TO AMEND. Plaintiff's remaining claims against defendant the State of California and/or against Brock and Steadmon in their official capacities are DISMISSED WITHOUT LEAVE TO AMEND.
Plaintiff sets forth the facts underlying his claims in one paragraph:
On January 27, 2012 CHP officers, including defendants Brock, Steadmon, and Doe officers 1 through 20, while on duty with the CHP, confronted the plaintiff at his residence in the City of Escondido. The officers were investigating a prior hit and run accident. The officers had also received information concerning a separate alleged reckless driving incident around the same time and near the same location as the hit and run. The officers requested that plaintiff step out of his home for interrogation. When plaintiff declined, Brock and/or Steadmon reached into plaintiff's residence and forcefully seized hold of plaintiff's arm, and attempted to pull him out of the residence. After successfully pulling his arm away from the officers, plaintiff continued to decline the officer's [sic] requests to step out of his home. A short time later, the officers stepped into the residence without probable cause or warrant and deployed an electrical shock weapon which sent barbs into plaintiff's body and conducted repeated electrical energy impulses into plaintiff's body. At no time was plaintiff a threat to the officers or to others. The invasion of the barbs into plaintiff's body and the electrical energy impulses resulted in injuries and losses to plaintiff.
(ECF No. 1. at § 10.)
Based on these allegations, Plaintiff asserts six claims for relief: (1) Violation of Civil Rights Causing Serious Bodily Injury; (2) Failure to Supervise Causing Constitutional Violations; (3) Negligence Causing Serious Bodily Injury; (4) Battery Causing Serious Bodily Injury; (5) Intentional Infliction of Emotional Distress; and (6) Negligent Infliction of Emotional Distress.
Plaintiff asserts his First Claim (excessive force) against defendants Brock and Steadmon, individually and in their official capacities. Plaintiff asserts his Second Claim (failure to supervise) against defendant the State of California. Plaintiff asserts his Third Claim (negligence) against all Defendants. Plaintiff asserts his Fourth Claim (battery) against defendants Brock and Steadmon without specifying whether the claim is against those defendants individually and/or in their official capacities. Lastly, Plaintiff asserts his Fifth Claim (IIED) and Sixth Claim (NIED) against all Defendants.
I. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give "detailed factual allegations, " a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).
"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.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ( quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, "the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
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, ...