United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
action came before the undersigned on February 3, 2017, for
hearing of defendants' motion for partial dismissal
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.Plaintiff Felicia Clark appeared on her own
behalf. Attorney Jill Nathan appeared on behalf of the
defendants. After hearing oral argument, defendants'
motion was taken under submission.
reasons stated below, the undersigned will recommend that
defendants' partial motion to dismiss be granted in part.
commenced this action on June 5, 2015, by filing a complaint
and a motion to proceed in forma pauperis. (ECF Nos. 1 &
2.) On September 29, 2015, a previously assigned Magistrate
Judge granted plaintiff's motion to proceed in forma
pauperis and ordered service of the complaint. (ECF No. 3.) On
January 8, 2016, defendants filed a motion to dismiss. (ECF
No. 11.) On July 26, 2016, a previously assigned Magistrate
Judge issued findings and recommendation recommending that
the complaint's claims for illegal seizure,
Monell, and violation of the Americans with
Disabilities Act be dismissed with leave to amend. (ECF No.
18.) Those findings and recommendations were adopted in full
by the assigned District Judge on August 31, 2016. (ECF No.
is now proceeding on a second amended complaint filed
November 21, 2016. (ECF No. 29.) Therein, plaintiff alleges,
in relevant part, that on June 6, 2013, plaintiff was
stranded on a bank of the American River. (Sec. Am. Compl.
(ECF No. 29) at 4.) Defendants Andrew Nelson and Christopher
Kemp, park rangers with the Sacramento County Parks
Department, responded to the scene along with emergency
rescue personnel. (Id. at 3-4.) Without
plaintiff's consent, defendant Nelson searched plaintiff
and confiscated plaintiff's medical marijuana before
discarding the marijuana. (Id. at 4.) Plaintiff
“raised with Nelson and Kemp the impropriety of
Nelson's actions” and the defendants arrested
plaintiff without probable cause. (Id.)
being arrested, plaintiff was 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 accommodate her claustrophobia. (Id.)
Defendants refused and plaintiff “kicked the window of
the police car, breaking it.” (Id.) Another
officer arrived, lowered a window, and transported plaintiff
to the Sacramento County Jail. (Id.)
jail, defendant Nelson “and/or” Kemp applied
plaintiff's handcuffs “too tightly.”
(Id. at 5.) Defendant Nelson then
“pushed” plaintiff onto a bench, causing
plaintiff's leg to make “slight” contact with
defendant Nelson's leg. (Id.) Thereafter,
defendant Nelson “violently grabbed plaintiff by the
throat and choked her.” (Id.) A Doe defendant
“immediately joined . . . Nelson in violently grabbing
Plaintiff by the throat and choking her.”
(Id.) Plaintiff was eventually released, but her
cell phone, driver's license, and medical marijuana
license were not returned to her at the time of her release.
filed the pending motion to dismiss on December 5, 2016. (ECF
No. 30.) Plaintiff filed an opposition on January 20, 2017.
(ECF No. 33.) Defendants filed a reply on January 27, 2017.
(ECF No. 34.) Plaintiff filed a sur-reply on February 17,
2017. (ECF No. 36.)
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 ...