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Said v. County of San Diego

United States District Court, Ninth Circuit

January 21, 2014



GONZALO P. CURIEL, District Judge.

Before the Court is Defendants' motion to dismiss Plaintiff's second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 24.) Plaintiff filed an opposition. (Dkt. No. 29.) Defendants filed a reply. (Dkt. No. 30.) The motions are submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). Based on the briefs and applicable law, the Court GRANTS in part and DENIES in part Defendants' motion to dismiss the second amended complaint.


On October 9, 2012, Plaintiff filed a 42 U.S.C. § 1983 civil rights complaint against County of San Diego, Deputy Sheriff Patrick Lopatowsky, Deputy Sheriff Brian Butcher, and Deputy Sheriff Scott Lee (erroneously named as Lee Scott). (Dkt. No. 1.) On May 15, 2013, the Court granted Defendants' motion to dismiss the complaint with leave to amend. (Dkt. No. 16.) On June 12, 2013, Plaintiff filed an first amended complaint. (Dkt. No. 17.) On October 30, 2013, the Court granted Defendants' motion to dismiss the first amended complaint with one final opportunity to amend. (Dkt. No. 22.) On November 19, 2013, Plaintiff filed a second amended complaint ("SAC"). (Dkt. No. 23.)

According to the second amended complaint, on January 24, 2012, Plaintiff was at his home with his two children when he heard knocking on his door. (Dkt. No. 23, SAC ¶¶ 10-11.) When he opened the door, Plaintiff saw the three named Sheriff Deputies who told him to go inside. (Id. ¶ 11.) As he went inside, the deputies followed Plaintiff inside without his consent, a valid search warrant, or an arrest warrant. (Id.) When the deputies asked what the trouble was with his wife, Plaintiff explained she was having problems with drugs and she presented a danger to his kids. (Id. ¶ 12.) "Without any reason Officer LOPATOSKY asked Said why are you causing problems to your wife and with (sic) together with Officer Butcher proceeded to hold and twist one arm each behind his back while yelling for no reason." (Id. ¶ 13.) "Officer BUTCHER proceeded to assist Lopatosky and both used excessive force to effectuate the arrest." (Id. ¶ 14.) The deputy, who was holding the right arm, pulled it so hard that Plaintiff's right elbow was dislocated. (Id. ¶ 15.) The deputies then placed Plaintiff under arrest with handcuffs with his hands behind his back causing Plaintiff to be in great and excruciating pain. (Id.) The deputies proceeded to bring Plaintiff down the street barefooted to where his wife was. (Id. ¶ 18.) The deputies brought Plaintiff's wife back to the house where the kids and Plaintiff live. (Id. ¶ 19.) Plaintiff pleaded and warned the deputies that the children would be in danger with his wife around because of her drug abuse problem but they would not listen. (Id.) Two hours later, an ambulance arrived and transported him to the hospital to get treated for his dislocated elbow. (Id. ¶ 21.) An x-ray and examination confirmed that forceful twisting caused his injury. (Id. ¶ 25.) Plaintiff is still getting treated for his arm and other injuries to his body. (Id. ¶ 25.) He also intends to seek psychological help in the near future. (Id.)

Plaintiff alleges that Deputy Sheriff Defendants falsified their police reports alleging that Plaintiff resisted executive officer, disobeyed a court order and violated a protective or stay away order. (Id. ¶ 26.) As a result, the District Attorney filed false felony charges against Plaintiffs. (Id. ¶ 27.) At the preliminary hearing, the state court judge dropped the charges and dismissed the case in its entirety. (Id.) Plaintiff alleges that he subject to an unlawful detention incidental to a false arrest and was forced to post a $20, 000 bail. (Id. ¶ 28.)

Plaintiff alleges causes of action under 42 U.S.C. § 1983 for unreasonable search and seizure; excessive force; false arrest; equal protection; denial of medical attention and malicious prosecution against Defendants Lopatosky, Butcher and Lee. He asserts a 42 U.S.C. § 1983 cause of action against the County of San Diego for unlawful policies, customs, or habits. He also alleges state law causes of action for negligence, battery, false arrest, and violation of California Civil Code section 52.1 against all Defendants.


A. Legal Standard on Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure ("Rule") 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't. , 901 F.2d 696, 699 (9th Cir. 1990). Under Federal Rule of Civil Procedure 8(a)(2), the plaintiff is required only to set forth a "short and plain statement of the claim showing that the pleader is entitled to relief, " and "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). Specific facts are not necessary. Erickson v. Pardus , 551 U.S. 89, 93 (2007).

A complaint may survive a motion to dismiss only if, taking all well-pleaded factual allegations as true, it contains enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 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." Id . "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . "In sum, for a complaint to survive a motion to dismiss, 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 Serv. , 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts alleged in the complaint, and draws all reasonable inferences in favor of the plaintiff. al- Kidd v. Ashcroft , 580 F.3d 949, 956 (9th Cir. 2009).

B. Request for Judicial Notice

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), a Court may consider exhibits attached to the complaint, matters subject to judicial notice, or documents necessarily relied on by the complaint whose authenticity no party questions. See Swartz v. KPMG LLP , 476 F.3d 756, 763 (9th Cir. 2007); Lee v. City of Los Angeles , 250 F.3d 668, 688-689 (9th Cir. 2001); United States v. Ritchie , 342 F.3d 903, 908 (9th Cir. 2003) ("A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.").

Courts may only take judicial notice of adjudicative facts that are "not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).

Defendants request that the Court take judicial notice of court records of the Superior Court of California in the case of People v. Said, Case No. C 291668 01. In his opposition, Plaintiff opposes and disputes the contents of the documents subject to the request for judicial notice. For example, he contests the authenticity of the proof of service of the protective order and argues that he did not know about the protective order until it was too late to file an appeal. Since the contents of the documents are disputed, the Court DENIES Defendants' request for judicial notice. In his opposition, ...

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