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Lozano v. City of San Pablo

United States District Court, N.D. California

May 9, 2014



KANDIS A. WESTMORE, Magistrate Judge.

The City of San Pablo moves to dismiss Argelio Lozano's complaint. The motion has been fully briefed and is suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b). For the reasons set forth below, the motion is granted with leave to amend.


A. Factual background

On April 25, 2010, San Pablo Police Department officers were in foot pursuit of Argelio Lozano ("Plaintiff"), who was suspected of automobile theft. (Compl. ¶ 5, Dkt. No. 1.) A police canine unit officer ordered Plaintiff to stop and get down on the ground. ( Id. ¶ 6.) Plaintiff complied, got down on the ground, and put his hands behind his head. ( Id. ¶ 7.) At that point, the police canine ran toward Plaintiff, who was not resisting arrest, [1] and bit his right underarm, puncturing an artery. ( Id. )

Plaintiff requested medical attention and was taken to a hospital. ( Id. ¶¶ 8, 9.) En route, he "expired due to a loss of blood and was resuscitated." ( Id. ¶ 9.) Plaintiff underwent emergency surgery and remained in critical condition after suffering organ failure as a result of blood loss due to the dog bite. ( Id. ¶ 11.) His right arm, right hand, and fingers are now "almost completely disabled...." ( Id. ¶ 12.)

B. Procedural background

On February 27, 2014, Plaintiff filed his complaint, in which he alleges violations of the Fourth and Fourteenth Amendments[2] based on the use of excessive force during his arrest. ( Id. ¶ 14.) He also asserts that such use of force stems from an established policy, practice, or custom and that the City knew that canine units "have operated and continue to operate in such a way as to deprive numerous individuals of their constitutional rights...." ( Id. ¶ 15.) On April 1, 2014, the City moved to dismiss the complaint for failure to state a claim upon which relief can be granted. (Def.'s Mot., Dkt. No. 10.) Plaintiff's opposition followed on April 2, 2014, and the City filed its reply on April 22, 2014. (Pl.'s Opp'n, Dkt. No. 15; Def.'s Reply, Dkt. No. 16.)


Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

In considering such a motion, the court must "accept as true all of the factual allegations contained in the complaint, " Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted), and may dismiss the case or a claim "only where there is no cognizable legal theory" or there is an absence of "sufficient factual matter to state a facially plausible claim to relief." Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732).

A claim is plausible on its face when a plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged must demonstrate "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action" and "conclusory statements" are inadequate. Iqbal, 556 U.S. at 678; see also Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) ("[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim."). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.... When a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

"When a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980.)

Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no request to amend is made "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. ...

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