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Burnett v. Lima

United States District Court, E.D. California

April 2, 2018

CARLOS BURNETT, Plaintiff,
v.
L. LIMA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION TO DISMISS, [ECF, 27]

         Plaintiff Carlos Burnett is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants' motion to dismiss, filed February 20, 2018.

         I.

         BACKGROUND

         This action is proceeding on Plaintiff's claim of excessive force against Defendants Costello, Urban and Jones.

         As previously stated, on February 20, 2018, Defendants filed a motion to dismiss the action as barred by the applicable statute of limitations. Plaintiff filed an opposition on March 5, 2018, and Defendants filed a reply on March 7, 2018. Therefore, the motion is deemed submitted for review without oral argument. Local Rule 230(1).

         II.

         LEGAL STANDARD

         A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

         To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

         III.

         DISCUSSION

         A. Summary of Plaintiff's Allegations

         On July 12, 2012, Christopher Constello yanked Plaintiff while he was being escorted in handcuffs, threw him against the wall, and stated “you['re] the dumbest nigger I ever met!” Constello and Brent Urban used their body weight against Plaintiff, and Plaintiff was thrown to the patio ground. Officer William Jones jumped on Plaintiff and made his head hit the ground ten times. During this time, officer M. ...


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