United States District Court, S.D. California
DAVID B. DURAN, Plaintiff,
OMAR MANDUJO, Defendants.
REPORT AND RECOMMENDATION FOR ORDER GRANTING MOTION
TO DISMISS FOR FAILURE TO STATE A CLAIM [DOC. NO.
WILLIAM V. GALLO UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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.)
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 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.)
filed his Fourth Amended Complaint on May 19, 2017, naming as
defendants Mandujano, A. Hernandez, L. Hernandez, Seaman,
Lewis, and Yancy. (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.
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.
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,
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).
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)
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).
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).
Judicial Notice/Incorporation By Reference
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
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.”
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.
Roster of Public Agencies Filing; Licenses from the State of
California Department of Health; ...