United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE PARTIALLY GRANTED ECF NO. 41
STANLEY A. BOONE, Magistrate Judge.
On July 3, 2014, Defendant Hipolito Pelayo filed a motion to dismiss. (ECF No. 41.) The motion to dismiss was referred to the undersigned magistrate judge for Findings and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72. (ECF No. 42.)
The hearing on the motion to dismiss took place on October 1, 2014. Neli Palma and Peter Meshot appeared telephonically on behalf of Defendants. Nichelle Jones appeared telephonically on behalf of Plaintiffs. For the reasons set forth below, the Court recommends that the motion to dismiss be partially granted.
This action was filed on September 12, 2013. (ECF No. 1.) The operative complaint is the First Amended Complaint filed on May 6, 2014. (ECF No. 35.) Plaintiffs claims arise from an incident alleged to have occurred on November 13, 2012 in the City of Pixley. Plaintiffs allege that law enforcement officers shot and killed Cecil Elkins, Jr. ("the Decedent") while attempting to arrest him.
Plaintiffs allege that Defendant Pelayo and several "Doe" officers from the California Highway Patrol, Tulare County Sheriff's Department, the Tulare County Regional Gang Enforcement Team, the Department of Justice Central Valley Gang Task Force and the Tulare Police Department pursued the Decedent on foot. Plaintiffs further allege that the Decedent was shot in the back by Defendant Pelayo despite the fact that the Decedent was unarmed and posed no reasonable threat to anybody.
LEGAL STANDARDS FOR MOTIONS TO DISMISS
Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss on the grounds that a complaint "fail[s] to state a claim upon which relief can be granted." A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007)). In assessing the sufficiency of a complaint, all well-pleaded factual allegations must be accepted as true. Iqbal , 556 U.S. at 678-79. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.
Defendant Pelayo raises five arguments in his motion to dismiss. First, Pelayo argues that Plaintiffs failed to allege compliance with the presentation requirements of the Government Claims Act. Second, Pelayo argues that Plaintiffs Tina Terrel and Cecil Elkins cannot recover on a wrongful death claim. Third, Pelayo argues that Cecil Elkin's claim for negligent infliction of emotional distress fails because he is not alleged to have witnessed the shooting. Fourth, Pelayo argues that he cannot be liable ...