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Lynch v. Burnett

United States District Court, S.D. California

October 29, 2019

PAUL ANTHONY LYNCH, Plaintiff
v.
KEVIN BURNETT, et al., Defendants

          REPORT AND RECOMMENDATION RE: DEFENDANT JAMES BURNETT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT [ECF NO. 28]

          Hon. Jill L. Burkhardt, United States Magistrate Judge.

         On July 23, 2018, Plaintiff Paul Anthony Lynch (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis, commenced this civil rights action pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 3.) On November 2, 2018, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants Matthew Botkin (“Botkin”), Zachary Pfannestiel (“Pfannestiel”), Christian Sharp (“Sharp”), and James Burnett (“Burnett” or “Defendant”). (ECF No. 5.)

         All defendants moved to dismiss the FAC. (ECF No. 12.) The undersigned issued a Report and Recommendation, recommending that the Court (1) deny the motion as to Plaintiff's excessive force claim against Botkin; (2) grant the motion as to Plaintiff's excessive force claim against Pfannestiel, Sharp, and Burnett, with leave to amend; and (3) grant the motion as to Plaintiff's failure to provide adequate medical care claim against all defendants, with leave to amend. (ECF No. 23.) On July 22, 2019, the Honorable Dana M. Sabraw, United States District Judge, adopted the Report and Recommendation and gave Plaintiff an opportunity to file a Second Amended Complaint. (ECF No. 25.)

         On August 5, 2019, Plaintiff filed a Second Amended Complaint (“SAC”) against Burnett only. (ECF No. 27.) Presently before the Court is Burnett's motion to dismiss the SAC. (ECF No. 28.) Plaintiff filed an opposition to the motion (ECF No. 30), and Burnett filed a reply in support (ECF No. 31).

         The Court submits this Report and Recommendation to Judge Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1 of the United States District Court for the Southern District of California. After a thorough review of Plaintiff's SAC and the parties' filings, and for the reasons discussed below, the Court RECOMMENDS that Burnett's motion to dismiss Plaintiff's SAC be DENIED.

         I. BACKGROUND

         Plaintiff is a state prisoner currently residing at California State Prison, Sacramento. (SAC at 1.) The following facts are taken from Plaintiff's SAC:

On August 8, 2017, Botkin, a Sergeant with the San Diego Police Department (“SDPD”), arrived at Plaintiff's private residence in San Diego, California and requested that Plaintiff come outside and speak with him regarding a crime that had happened down the street at a neighbor's house. (Id. at 3.) Plaintiff asked if she was a suspect and Botkin responded, “Yes, you are a suspect.” (Id.) Plaintiff responded that she had not done anything wrong, she had not broken the law, and she was not willing to speak with Botkin. (Id.) Botkin then stated, “Bring your faggot ass out of your house or we will come in your house and drag your faggot ass out.” (Id.) Plaintiff, a transgender male, [1] stayed in her house as she feared for her life. (Id.) As more SDPD officers arrived, Plaintiff became more fearful that the officers would kill her or commit bodily injury to her person. (Id.)

         Burnett, an SDPD detective, also arrived at Plaintiff's house and started speaking to her. (Id.) During the conversation, Plaintiff heard her back door open and saw Pfannestiel, an SDPD police officer, along with other SDPD officers, running through her kitchen. (Id.) As they came running through the kitchen, Plaintiff exited her home into her front yard with her hands in the air. (Id.)

         As Plaintiff exited, Burnett was standing right there. (Id.) Plaintiff yelled, “Burnett, don't let them hurt me.” (Id. at 3-4.) Following Burnett's directions, Plaintiff walked quickly towards Burnett with her hands in the air. (Id. at 4.) Burnett then grabbed Plaintiff's right arm and held it, allowing Botkin to grab Plaintiff from the back, pull her hair, yank her neck back, and place his thumb into her carotid artery. (Id.) Botkin's actions cut off Plaintiff's blood supply to her brain, which knocked her out while she was standing in an upright position and caused her to fall face forward onto the hot pavement. (Id.) The fall caused Plaintiff injuries to her face, knees, and feet. (Id.)

         Plaintiff was not a threat to the officers or Burnett. (Id.) She exited her home with her hands in the air and surrendered to Burnett. (Id.) Plaintiff had no weapons and was wearing a white blouse, panties, and a pair of open-toe high heels at the time she exited her home. (Id.) Burnett had control of the situation, but he chose to hold Plaintiff while Botkin grabbed her and placed a carotid hold. (Id.) Burnett failed to stop Botkin from “attempting to kill” Plaintiff. (Id.) Instead, Burnett elected to allow Botkin “to attempt to kill [Plaintiff] due to [her] gender association.” (Id.)

         Based on the foregoing, Plaintiff claims that Burnett violated her Fourth Amendment right to be free from cruel and unusual punishment. (Id. at 3-4.) Burnett now moves to dismiss Plaintiff's SAC pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis that it fails to state a claim against him upon which relief can be granted. (ECF No. 28.)

         II. LEGAL STANDARD

         A. Motion to Dismiss for ...


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