United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION TO DISMISS, [ECF, 27]
Carlos Burnett is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Defendants' motion to dismiss, filed
February 20, 2018.
action is proceeding on Plaintiff's claim of excessive
force against Defendants Costello, Urban and Jones.
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).
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).
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).
Summary of Plaintiff's Allegations
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