United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO
THELTON E. HENDERSON United States District Judge
matter comes before the Court on separate motions to dismiss
the first amended complaint brought by Defendants City of
Oakland and Roland Holmgren and by Defendant Joe Turner. The
Court finds these motions suitable for resolution without
oral argument, see Civil L.R. 7-1(b), and now GRANTS
IN PART and DENIES IN PART the motions for the reasons
case arises from an incident at the home of Plaintiffs Olga
and Nemesio Cortez and their minor children on December 7,
2015. The Court detailed the allegations from Plaintiffs'
original complaint in its order granting Defendants'
motions to dismiss, ECF No. 33 at 1-3, and will not repeat
them here. The primary change between the complaint and the
First Amended Complaint (“FAC”) is that
Plaintiffs now allege that they know that Defendant Turner
was the person who allegedly “appeared to point a gun .
. .from underneath his shirt” as he ran up
Plaintiffs' driveway and subsequently fled the scene. FAC
¶¶ 20, 24. The FAC also includes allegations
concerning a July 26, 2016 interview of Plaintiffs by Oakland
Police detective John Haney. FAC ¶¶ 35-36, 43. In
addition, Plaintiffs no longer name Bryan Budgin or Trevor
Stratton as defendants, but they have added a cause of action
for violation of 42 U.S.C. § 1983 against Defendant
Turner based on alleged violations of Plaintiffs' Fourth
Amendment “right to be free from unreasonable searches
and seizures.” FAC ¶¶ 50-53.
City and Holmgren again move to dismiss all claims asserted
against them, ECF No. 38, as has Turner in a separately filed
motion, ECF No. 40.
is appropriate under Federal Rule of Civil Procedure 12(b)(6)
when a plaintiff's allegations fail “to state a
claim upon which relief can be granted.” In ruling on a
motion to dismiss, courts must “accept all material
allegations of fact as true and construe the complaint in a
light most favorable to the non-moving party.”
Vasquez v. Los Angeles County, 487 F.3d 1246, 1249
(9th Cir. 2007). However, courts are not “bound to
accept as true a legal conclusion couched as a factual
allegation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
survive a motion to dismiss, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. Plausibility does not equate to probability, but it
requires “more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556
U.S. at 678. “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.” Id.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. Dismissal of claims that do not
meet this standard should be with leave to amend unless
“it is clear that the complaint could not be saved by
amendment.” Kendall v. Visa U.S.A., Inc., 518
F.3d 1042, 1051 (9th Cir. 2008).
failed to respond to two arguments in Defendants'
motions: Turner's motion to dismiss the assault claim,
and Holmgren's motion to dismiss all claims based on
immunity. They have therefore conceded those issues.
E.g., Ramirez v. Ghilotti Bros. Inc., 941
F.Supp.2d 1197, 1210 & n.7 (N.D. Cal. 2013). Accordingly,
the motions to dismiss the assault claim against Turner and
all claims against Holmgren are GRANTED with prejudice.
Fourth Amendment Claim Against Turner
the FAC is a cause of action against Defendant Turner for
violation of 42 U.S.C. § 1983. Plaintiffs contend that
Turner violated their Fourth Amendment “right to be
free from unreasonable searches and seizures, ” FAC
¶ 52, and, in particular, the right “to be free
from excessive and/or unreasonable use of force against them,
” FAC ¶ 50. This claim is based on the allegation
that, “[a]s Defendant Turner was passing Mrs. Cortez,
he appeared to point a gun at Mrs. Cortez and K.C. from
underneath his shirt, causing Mrs. Cortez and the Cortez
children to fear for their lives. Then, Defendant Turner ran
away from the house and up the street, as documented by a
neighbor's surveillance camera.” FAC ¶ 20.
state a claim under § 1983, the plaintiff must allege a
violation of his constitutional rights and show that the
defendant's actions were taken under color of state
law.” Gritchen v. Collier, 254 F.3d 807, 812
(9th Cir. 2001) (footnote omitted). A defendant's actions
are under state law if the defendant “acted pursuant to
any government or police goal” or “purported to
or pretended to act under color of law, even if his goals