United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is proceeding, without counsel, with this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
is defendants’ motion to dismiss for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
After carefully considering the record, the undersigned
recommends that defendants’ motion be granted in part
and denied in part.
Legal Standard for Motion to Dismiss Brought Pursuant to
Federal Rule of Civil Procedure 12(b)(6)
12(b)(6) of the Federal Rules of Civil Procedures provides
for motions to dismiss for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). In considering a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), the court must
accept as true the allegations of the complaint in question,
Erickson v. Pardus, 551 U.S. 89 (2007), and construe
the pleading in the light most favorable to the plaintiff.
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969);
Meek v. County of Riverside, 183 F.3d 962, 965 (9th
Cir. 1999). Still, to survive dismissal for failure to state
a claim, a pro se complaint must contain more than
“naked assertions, ” “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Furthermore, a claim upon which the court can grant
relief must have facial plausibility. 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.” Iqbal, 556 U.S.
at 678. Attachments to a complaint are considered to be part
of the complaint for purposes of a motion to dismiss for
failure to state a claim. Hal Roach Studios v. Richard
Reiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.
motion to dismiss for failure to state a claim should not be
granted unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claims which would
entitle him to relief. Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984). In general, pro se
pleadings are held to a less stringent standard than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972). The court has an obligation to construe such
pleadings liberally. Bretz v. Kelman, 773 F.2d 1026,
1027 n.1 (9th Cir. 1985) (en banc). However, the
court’s liberal interpretation of a pro se complaint
may not supply essential elements of the claim that were not
pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982).
Clarification of Claims
action proceeds on the original complaint against defendants
San Joaquin County Deputy Sheriffs Jimenez and Taiariol. (ECF
No. 1.) In the order screening the complaint, the undersigned
found that plaintiff stated a potential malicious prosecution
claim against defendant Jimenez and a potential excessive
force claim against defendant Taiariol. (ECF No. 7.)
reviewing the complaint while considering defendants’
motion to dismiss, the undersigned finds that plaintiff
raises the following additional claims against defendant
Jimenez: 1) alleged violation of the Fourth Amendment based
on an allegedly illegal search of cell phone records; 2)
allegedly suggestive photo line-up; and 3) allegedly false
testimony to the grand jury. Defendants’ motion to
dismiss addresses these claims, although defendants do not
directly address whether defendant Jimenez’s alleged
conduct violated the Fourth Amendment.
Allegations in the Complaint
alleges that on October 11, 2013, a homicide occurred in
Acampo, California. (ECF No. 1 at 4.) Defendant Jimenez
conducted the initial investigation. (Id.)
January 16, 2014, defendant Jimenez obtained a warrant for a
cell phone tower dump for all cell phone providers in the
Acampo area. (Id.) This warrant was issued for all
cell phone towers in the Acampo area for October 11, 2013,
between 3:00 a.m. and 4:00 a.m. (Id.) Plaintiff
alleges that defendant Jimenez used this data to pinpoint
several cell phones that were active on the morning the
homicide took place. (Id.)
alleges that defendant Jimenez identified David Smith as
owning one of the phones in use at the relevant time.
(Id.) Plaintiff alleges that this David Smith did
not provide a current address and that there were 218 David
Smiths in San Joaquin County. (Id.)
Plaintiff’s name came across Smith’s phone in
November 2013, i.e., one month after the crime took place.
plaintiff’s name came across David Smith’s cell
phone, and plaintiff was easier to locate than the 218 David
Smith’s in San Joaquin County, defendant Jimenez
obtained plaintiff’s booking photo. (Id.)
Defendant Jimenez showed plaintiff’s booking photo to
an eyewitness of the crime all by itself, thus implicating
plaintiff in the crime and suggesting that plaintiff was
“the person.” (Id. at 4-5.)
alleges that on April 2, 2014, a warrant was issued for
plaintiff’s arrest for the October 2013 Acampo murder.
(Id. at 5.) On ...