United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
matter is before the court on defendants’ January 8,
2016 motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons stated
below, the motion must be granted in part and denied in part.
is proceeding in form pauperis on a complaint filed on June
5, 2015. ECF No. 1. Plaintiff’s complaint
alleges, in relevant part, that on June 6, 2013, she was
stranded on a bank of the American River. Id. at
Defendants Nelson and Kemp, park rangers with the Sacramento
County Parks Department, responded to the scene along with
emergency rescue personnel. Id. Without
plaintiff’s consent, defendant Nelson searched
plaintiff, confiscated and discarded her medical marijuana.
Id. Plaintiff objected and her ensuing interactions
with Nelson and Kemp resulted in her arrest. Id.
was then placed in the back of a police vehicle. Id.
Plaintiff informed defendants Nelson and Kemp that she
suffered from claustrophobia. Id. Plaintiff asked
that the rear window be lowered to alleviate her
claustrophobia, defendants refused, and plaintiff broke the
window of the police vehicle. Id.
was then taken to jail where defendants Nelson
“and/or” Kemp applied plaintiff’s handcuffs
“too tightly.” Id. at 4. Thereafter,
defendant Nelson “pushed” plaintiff onto a bench,
causing plaintiff’s leg to make contact with defendant
Nelson. Id. Thereafter, defendant Nelson grabbed
plaintiff by the throat and choked her. Id.
filed the pending motion to dismiss on January 8, 2016. ECF
No. 11. After plaintiff failed to file timely opposition, the
undersigned issued plaintiff an order to show cause. ECF No.
13. Plaintiff filed a response on February 18, 2016. ECF No.
14. Defendants filed a reply on February 24, 2016, ECF No.
15, along with objections, ECF No. 16.
Legal Standards Applicable to Motions to Dismiss Pursuant
to Rule 12(b)(6)
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of the complaint. N. Star
Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578,
581 (9th Cir. 1983). “Dismissal can be based on the
lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal
theory.” Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A
plaintiff is required 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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In
general, pro se complaints are held to less stringent
standards than formal pleadings drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, the court need not assume the truth of legal
conclusions cast in the form of factual allegations.
United States ex rel. Chunie v. Ringrose, 788 F.2d
638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not
require detailed factual allegations, “it demands more
than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
pleading is insufficient if it offers mere “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555. See also Iqbal, 556 U.S. at 676
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). Moreover, it is inappropriate to assume
that the plaintiff “can prove facts which it has not
alleged or that the defendants have violated the . . . laws
in ways that have not been alleged.” Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), the court is permitted to consider material which
is properly submitted as part of the complaint, documents
that are not physically attached to the complaint if their
authenticity is not contested and the plaintiff’s
complaint necessarily relies on them, and matters of public
record. Lee v. City of Los Angeles, 250 F.3d 668,
688-89 (9th Cir. 2001).
First Amendment Retaliation
motion seeks dismissal of the complaint’s claim for
retaliation in violation of the First Amendment. In this
regard, defendants argue that plaintiff’s
“private objections to being searched and/or arrested
do not bear the hallmarks of ‘protected speech, ”
and that plaintiff’s “arrest was NOT motivated by
retaliatory animus.” ECF No. 11 at 7 (emphasis in
demonstrate a First Amendment violation, a plaintiff must
provide evidence showing that ‘by his actions the
defendant deterred or chilled the plaintiff’s political
speech and such deterrence was a substantial or motivating
factor in the defendant’s conduct.’”
Lacey v. Maricopa County, 693 F.3d 896, 916 (9th
Cir. 2012) (quoting Mendocino Envtl. Ctr. v. Mendocino
Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)). “The
Supreme Court has consistently held that the First Amendment
protects verbal criticism, challenges, and profanity directed
at police officers unless the speech is “‘shown
likely to produce a clear and present danger of a serious
substantive evil that rises far above public inconvenience,
annoyance, or unrest.’” United States v.
Poocha, 259 F.3d 1077, 1080 (9th Cir. 2001) (quoting
City of Houston v. Hill, 482 U.S. 451, 461 (1987));
see also Mackinney v. Nielsen, 69 F.3d 1002, 1007
(9th Cir. 1995) (“Even when crass and inarticulate,
verbal challenges to the police are protected.”);
Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378
(9th Cir. 1990) (“The freedom of individuals to oppose
or challenge police action verbally without thereby risking
arrest is one important characteristic by which we
distinguish ourselves from a police state.”). Moreover,
the Ninth Circuit “has recognized that a retaliatory
police action such as an arrest or search and seizure would
chill a person of ordinary firmness from engaging in future
First Amendment activity.” Ford v. City of
Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013).
plaintiff’s complaint alleges that after she objected
to defendant Nelson’s illegal search and seizure,
defendants Nelson and Kemp arrested her. ECF No. 1 at 3.
Viewed in the light most favorable to plaintiff, these
allegations state a claim for retaliation in violation of the
First Amendment. See Ford, 706 F.3d at 1193
(“Ford’s criticism of the police for what he
perceived to be an unlawful and racially motivated traffic
stop falls squarely within the protective umbrella of the
First Amendment and any action to punish or deter such speech
is categorically prohibited by the Constitution.”);
Duran, 904 F.2d at 1378 (“Inarticulate and
crude as Duran’s conduct may have been, it represented
an expression of disapproval toward a police officer with
whom he had just had a run-in. As such, it fell squarely
within the protective umbrella of the First Amendment and any
action to punish or deter such speech-such as stopping or
hassling the speaker-is categorically prohibited by the
it is recommended that defendants’ motion to dismiss be
denied as to this claim.
motion also seeks dismissal of the complaint’s claim
for false arrest on two grounds. First, defendants argue that
plaintiff’s false arrest claim is barred under H ...