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Duran v. Mandujo

United States District Court, S.D. California

August 31, 2017

DAVID B. DURAN, Plaintiff,
v.
OMAR MANDUJO, Defendants.

          REPORT AND RECOMMENDATION FOR ORDER GRANTING MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [DOC. NO. 91]

          HON. WILLIAM V. GALLO UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is a Motion to Dismiss Plaintiff David B. Duran's (“Plaintiff”) Fourth Amended Complaint (“FAC”) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Larry Lewis and Jonta Yancy (collectively “Defendants”). As explained below, the Court RECOMMENDS that the Motion be GRANTED with prejudice.

         I. BACKGROUND

         Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 on December 7, 2015, alleging Defendants violated his rights guaranteed under the Fourth and Eighth Amendments of the United States Constitution. (ECF No. 1.) On August 2, 2016, Plaintiff filed a Motion for Leave to File an Amended Complaint in order to add two exhibits. (ECF No. 33.) The Court granted the motion and ordered Plaintiff to file his First Amended Complaint by September 2, 2016. (ECF No. 34.) On August 18, 2016, Plaintiff filed a Motion to Amend Document No. 33 by Permission of the Court, requesting the Court to construe his previous motion as his First Amended Complaint. (ECF No. 37.) On August 23, 2016, the Court granted the motion and deemed as the First Amended Complaint the complaint and the exhibits filed in the Motion for Leave to File an Amended Complaint. (ECF No. 40.)

         On September 8, 2016, defendants Mandujano, A. Hernandez, L. Hernandez, and Seaman filed a motion to dismiss Plaintiff's First Amended Complaint for failure to state a claim. (ECF No. 41.) On January 31, 2017, this Court filed a Report and Recommendation (“R&R”), recommending the motion be granted in part with leave to amend and granted in part without leave to amend. (R&R, ECF No. 64.) On March 2, 2017, the Honorable Dana M. Sabraw adopted the R&R, granted the motion, and dismissed Plaintiff's First Amended Complaint with leave to amend. (ECF No. 69.)

         On April 7, 2017 Plaintiff filed a Second Amended complaint, followed by a Motion to Amend on April 11, 2017. (ECF Nos. 73, 76.) In his Motion, Plaintiff requested leave to amend in order to add newly identified defendants Larry Lewis[1] and Jonta Yancy. (ECF No. 76.) The motion was granted and on April 26, 2017, Plaintiff filed his Third Amended Complaint, naming defendants Lewis and Yancy but omitting defendants Mandujano, A. Hernandez, L. Hernandez, and Seaman. (ECF No. 80.) Defendants Mandujano, A. Hernandez, L. Hernandez, and Seaman filed duplicative motions for entry of judgment in favor of the unnamed defendants on April 27, 2017 and May 11, 2017, arguing their omission was tantamount to voluntary dismissal. (ECF Nos. 82, 86.) On May 10, 2017, the Court granted Plaintiff leave to file a Fourth Amended Complaint that includes “all allegations against all defendants in one document no later than June 15, 2017.” (ECF No. 85 at 2:1-2.)

         Plaintiff filed his Fourth Amended Complaint on May 19, 2017, naming as defendants Mandujano, A. Hernandez, L. Hernandez, Seaman, Lewis, and Yancy.[2] (FAC, ECF No. 89.) The FAC alleges defendants Mandujano, A. Hernandez, L. Hernandez, and Seaman violated Plaintiff's Fourth Amendment rights through the execution of an invalid search warrant and use of excessive force in executing the search warrant in violation of his Eighth Amendment rights. The FAC alleges defendants Lewis and Yancy conducted an illegal search and seizure in violation of his Fourth Amendment Rights and violated Plaintiff's protection against cruel and unusual punishment in violation of the his Eighth Amendment rights.

         On June 2, 2017, defendants Mandujano, A. Hernandez, L. Hernandez, and Seaman filed a motion to dismiss the FAC. (ECF No. 94.) On August 22, this Court filed a R&R, recommending the motion be granted and defendants Mandujano, A. Hernandez, L. Hernandez, and Seaman be dismissed with prejudice. (ECF No. 102.)

         III. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted, ” generally referred to as a motion to dismiss. Fed.R.Civ.P. 12(b)(6). The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Although Rule 8 “does not require ‘detailed factual allegations, ' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled “allow [ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent with' a defendant's liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained in the complaint. Id. This review requires context-specific analysis involving the Court's “judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. The Court will grant leave to amend unless it determines that no modified contention “consistent with the challenged pleadings … [will] cure the deficiency.” DeSoto v. Yello Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (citation omitted).

         Where, as here, a plaintiff appears pro se in a civil rights suit, the Court also must be careful to construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Garmon v. Cty. of L.A., 828 F.3d 837, 846 (9th Cir. 2016). The rule of liberal construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In construing a pro se civil rights complaint liberally, however, a court may not “supply essential elements of the claim that were not initially pleaded.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Id. Thus, at a minimum, even the pro se plaintiff “must allege with at least some degree of particularity overt acts which defendants engaged in that support [his] claim.” Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (internal quotations and citation omitted).

         The Court should grant a pro se litigant leave to amend his complaint “unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (internal quotation omitted). Before dismissing a complaint filed by a pro se plaintiff, a court must give some notice of the complaint's deficiencies. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). Nevertheless, when amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).

         IV. DISCUSSION

         A. Judicial Notice/Incorporation By Reference

         Before proceeding to the merits of the Motion to Dismiss, the Court first must determine whether certain records attached to and referenced in the Motion to Dismiss are judicially noticeable or acceptable for consideration under the doctrine of incorporation. Defendants have asked the Court to incorporate the following items: (1) Superior Court of the State of California, County of Imperial, Search Warrant No. SW 2014-011, citing to the search warrant attached to Plaintiff's original complaint; (2) Statement of Facts Roster of Public Agencies Filings filed December 2013, 2014, and 2016, showing Pioneers Memorial Healthcare District is a public entity; and (3) Licenses from the State of California Department of Public Health, showing that Pioneers Memorial Healthcare District operates and maintains the general acute care hospital in Brawley, CA. (ECF No. 91 at 28-29.) Defendants also request the court judicially notice the fact that on and since January 16, 2014, Pioneer Memorial Healthcare District owned Pioneers Memorial Hospital. (ECF No. 91.)

         “Generally, a court may not consider material beyond the complaint in ruling on a [motion to dismiss].” Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation omitted). “However, a court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not subject to reasonable dispute.” Id. A court may also consider materials “incorporated into the complaint.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). The doctrine of “incorporation by reference” has been extended to permit courts “to consider documents in situations where the complaint necessarily relies upon a document or the contents of the document are alleged in a complaint, the document's authenticity is not in question and there are no disputed issues as to the document's relevance.” Id.

         i. Search Warrant

         Defendants request the Court take judicial notice of a search warrant attached to Plaintiff's original complaint. (ECF No. 91-2). However, since Plaintiff has filed amended complaints since the original complaint, the Court treats the latter as non-existent. See Valadez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (“[I]t is well-established that an amended complaint supersedes the original, the latter being treated thereafter as nonexistent.”) (internal quotation omitted); see also Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (applying the same standard to a pro se prisoner's second amended complaint made pursuant to § 1983). Given this, the Court declines to consider the warrant attached to Plaintiff's original complaint.[3]

         ii. Roster of Public Agencies Filing; Licenses from the State of California Department of Health; ...


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