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Ortiz v. Freitas

United States District Court, N.D. California

September 2, 2014

DAVID ORTIZ, Plaintiff,
STEVE FREITAS, et al., Defendants.



Plaintiff David Ortiz makes claims pursuant to 42 U.S.C. section 1983 arising from his detention at the Sonoma County Jail facility. The Court has twice dismissed his complaint with leave to amend and precise instructions regarding the allegations necessary to state a claim. Now pending before the Court is Defendants' Motion to Dismiss the Second Amended Complaint ("SAC") under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 45.) After carefully considering the pleadings submitted by the parties the Court concludes that oral argument is not necessary, see Civ. L.R. 7-1(b), and GRANTS Defendants' Motion to Dismiss in part and DENIES it in part. The Fourth and Fifth Causes of Action are dismissed, as are any claims based on the Fifth Amendment to the United States Constitution. As leave to amend yet again would be futile, the dismissal is with prejudice. In all other respects the motion to dismiss is denied. Defendants shall answer the SAC within 20 days of the filing of this Order.


Plaintiff's Second Amended Complaint ("SAC") contains seven causes of action: (1) excessive force as to Defendant Bone, (2) excessive force as to Defendant Sheets, (3) deliberate indifference to Plaintiff's medical needs with respect to his vertigo as to Defendants Sheriff Freitas and Assistant Sheriff Randall Walker, (4) denial of medication for vertigo as to Defendant the County of Sonoma ("the County"), (5) denial of medical treatment as to the County, (6) segregation as to the County, and (7) denial of medical treatment with respect to hearing problems in August and September 2012 as to the County. (Dkt. No. 43.)

The Court has previously granted motions to dismiss for failure to state a claim upon which relief could be granted. Plaintiff's original complaint and a subsequently filed "Amended Complaint, " which contained many of the same allegations raised in the SAC, were dismissed with leave to amend. (Dkt. No. 26.) The dismissal order cautioned Plaintiff that "[a]ny amended complaint must comply with Rule 8(a) by including the legal and factual basis for each cause of action. Plaintiff must also identify which defendants he wishes to sue under each cause of action, whether the defendant is sued in his official or personal capacity, and which factual allegations apply to each defendant in each cause of action." ( Id. at 5:26-6:1.) Plaintiff subsequently filed a First Amended Complaint which was largely identical to the original complaint, although it added allegations with respect to Defendant Freitas and Walker as to the second and third claims regarding deliberate indifference to his medical condition of vertigo. (Dkt. No. 27 at ¶¶ 31, 34.) The Court dismissed that complaint as well because with respect to each allegation Plaintiff had failed to (1) substantively identify which defendants were sued under each cause of action; (2) identify whether the individual defendants were sued in their official or individual capacity; and (3) state a claim pursuant to section 1983.

Plaintiff thereafter filed the underlying SAC which reiterates the same claims as raised in the preceding complaints. Upon receipt of the SAC, Defendants sent a letter to Plaintiff noting certain deficiencies with respect to the SAC and seeking Plaintiff's stipulation to file a Third Amended Complaint addressing these perceived deficiencies. (Dkt. No. 46-1.) Plaintiff declined to so stipulate and the now pending motion to dismiss followed. (Dkt. Nos. 46-2 & 48-3)


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint where the action fails to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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. 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). Under Federal Rule of Civil Procedure 8(a) (2) a party is only required to make "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." Twombly, 550 U.S. at 554 (internal citations and quotations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However, even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), "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 and quotations omitted). "Determining whether a complaint states a plausible claim for relief... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950 (2009).

If a Rule 12(b)(6) motion is granted, a "district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and citations omitted). However, the Court may deny leave to amend for a number of reasons, including "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).


Plaintiff reiterates many of the same claims made in his prior two complaints; however, rather than adding allegations to clarify his prior claims as directed by this Court's two prior orders, Plaintiff has instead included even fewer allegations making his claims even more difficult to understand and therefore non-cognizable. Defendants move to dismiss Plaintiff's first, second, fourth, fifth, and sixth causes of action as well as any cause of action predicated on the Fifth Amendment. Defendants contend that as Plaintiff has been given multiple opportunities to amend the complaint, but has as yet been unable to cure the defects, further leave to amend should not be granted. For the reasons discussed below, the motion is granted in part.

A. Plaintiff's Excessive Force Claims

Plaintiff's SAC pleads excessive force claims against Defendants Bone and Sheets; namely, Plaintiff alleges these defendants assaulted him on February 5 or 6, 2012. The Court's previous order, however, stated that the complaint was unclear as to whether each officer was being sued in his official or individual capacity. The record is still unclear. The SAC alleges action personally taken by each officer, states that the actions were performed under color of law, but then alleges that Defendant Bones is sued in "his capacity as a correctional officer" (Dkt. No. 43 ¶ 7) and seeks judgment against Defendant Sheets in his "occupational capacity" ( Id. ¶ 11.). Although this language suggests that Plaintiff is suing the officers in their individual capacity, Plaintiff's opposition to the motion to dismiss states that "Plaintiff is alleging that the correctional officers were acting in their official capacities.'" (Dkt. No. 48 at 3:22-23.) Adding to the confusion, the opposition also includes the quote "[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law." ( Id. at 4:1-3 (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985).).

As claims for excessive force are generally brought against the officers who used the force in their individual or personal capacities, and as the Court is not aware of how Plaintiff could state an excessive force claim against these defendants in the "official capacities, " the Court deems them ...

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