United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, Jr., Chief District Judge.
This action proceeds on the First Amended Complaint ("FAC") of Sinclair Willis ("Plaintiff") against Defendants County of Sacramento ("County") and Officers David Cuneo and Adam Tedford (collectively "Defendants"). Plaintiff alleges Defendants violated both state and federal law when Plaintiff was shot while burglarizing a coffee shop. Presently before the Court is Defendant's Motion to Dismiss the FAC for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendant's Motion is GRANTED in part and DENIED in part.
On January 27, 2012, at approximately 2:07 a.m., two Sacramento Sheriff's Deputies, Defendants Tedford and Cuneo, responded to an alarm at an "It's a Grind" coffee shop in Galt, California. When Tedford and Cuneo arrived at the scene, they found Plaintiff burglarizing the shop. According to Plaintiff, surveillance video shows that, as he attempted to flee, Cuneo discharged his firearm three times, striking Plaintiff once in the lower back and once in the buttocks. The third shot missed. Plaintiff, who was carrying a sledgehammer at the time, alleges that he was not close enough to present a threat to Defendants and that the shooting was thus unjustified. In post incident interviews, however, Cuneo stated that he shot Plaintiff in defense of Tedford, because he believed Plaintiff was about to strike Tedford with what appeared to be an axe. For his part, Tedford originally stated that he lost visual contact with Plaintiff, heard shots, and then heard Officer Cuneo state, "Show me your hands, " "What's in your hands, " and "Put it down." Tedford later clarified that he actually heard Officer Cuneo yelling prior to hearing the gunshots. FAC ¶¶ 36, 37.
After being shot, Plaintiff crawled out of the shop's shattered entrance door and then ran approximately 50 feet away, where he went down to the ground and lay in a prone position. Officer Tedford pursued Plaintiff and, when the officer arrived next to Plaintiff, kicked Plaintiff in his side/rib area, searched his pockets and handcuffed him. Officer Cuneo reached Plaintiff as Officer Tedford was applying the cuffs.
According to Plaintiff, prior to the incident in this case, the Sheriff's Department had reduced firearms training from three times a year to twice annually. Subsequently, throughout 2012, Sacramento Sheriff's Deputies were involved in twelve shootings, in which eleven suspects were hit and eight were killed. These figures represented a substantial increase from the average of six shooting incidents per year over the prior ten-year period. Plaintiff attributes the increase in shootings to the district attorney's decision in 2011 to discontinue that offices' review of officer-involved shootings. Plaintiff also avers that the Sheriff's Department had approved a general order establishing a Tactical Review Board to further review officer-involved shootings, but that the Board was never made operational. Other systems for review, such as the Sheriff's Department's Homicide Bureau and the County's Office of the Inspector General ("OIG") were purportedly not "objective" and "encouraged a culture and custom of use of deadly force under unjustified circumstances without fear of negative consequences." FAC ¶¶ 57-58. Finally, the Sacramento County Grand Jury investigated the increase in shootings and determined that the Sheriff's Department did not routinely conduct reviews. The Grand Jury recommended that the OIG engage in more proactive reviews going forward.
Plaintiff filed a claim with the County, which was later denied. He subsequently filed his instant action in state court, after which Defendants removed the case to this Court pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1441. Defendants filed a Motion to Dismiss Plaintiff's original Complaint, which was granted. Plaintiff then filed his FAC alleging federal causes of action under § 1983 and state causes of action for battery, negligence, and intentional infliction of emotional distress ("IIED"), the bulk of which Defendants have now timely moved to dismiss as well.
On a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 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)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual allegations. However, "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." Id . (internal citations and quotations omitted). A court is not required to accept as true a "legal conclusion couched as a factual allegation." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1950 (2009) (quoting Twombly , 550 U.S. at 555). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must contain something more than "a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.")).
Furthermore, "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 and quotations omitted). Thus, "[w]ithout 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." Id . (citing 5 Charles Alan Wright & Arthur R. Miller, supra, at § 1202). 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 . However, "[a] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes , 416 U.S. 232, 236 (1974)).
A court granting a motion to dismiss a complaint must then decide whether to grant leave to amend. Leave to amend should be "freely given" where 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 allowance of the amendment, [or] futility of the amendment...." Foman v. Davis , 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. Aspeon, Inc. , 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to be considered when deciding whether to grant leave to amend). Not all of these factors merit equal weight. Rather, "the consideration of prejudice to the opposing party... carries the greatest weight." Id . (citing DCD Programs, Ltd. v. Leighton , 833 F.2d 183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that "the complaint could not be saved by any amendment." Intri-Plex Techs. v. Crest Group, Inc. , 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc. , 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co. , 866 F.2d 1149, 1160 (9th Cir. 1989) ("Leave need not be granted where the amendment of the complaint... constitutes an exercise in futility....")).
Defendants move to dismiss Plaintiff's § 1983 excessive force claims and state common law battery against Tedford for failing to intervene when Cuneo shot Plaintiff and against Cuneo for failing to intervene when Tedford was kicking Plaintiff. In addition, Defendants seek dismissal of Plaintiff's claim for ...