United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
WITH LEAVE TO AMEND [DOCS. 3, 4]
Thomas J. Whelan, United States District Judge
before the Court are motions to dismiss filed by Defendants
County of San Diego and Officer Richard Fischer. The Court
decides the matters on the papers submitted and without oral
argument. See Civ. L.R. 7.1(d)(1). For the reasons
stated below, the Court GRANTS the motions
[Docs. 3, 4] with leave to amend.
following allegations are taken from the Complaint.
March 29, 2017, Plaintiff Blake Droz was picked up by a taxi
in Old Town San Diego, and he asked the driver to take him to
Little Italy. (Compl. [Doc. 1] ¶ 16.)
“DROZ fell asleep in the back of the taxi and when he
woke up, the taxi driver was driving him through Carlsbad,
California (dozens of miles in the wrong direction).”
(Id. ¶ 17.) Droz demanded that the driver stop
and let him out of the taxi. (Id. ¶ 18.)
point, the taxi driver called 911 and stated that Droz
refused to pay the fare and pointed a gun at the driver's
head. (Compl. ¶ 19.) Droz then allegedly fled
the scene. (Id.)
denies he had a gun and denies he threatened the driver.
(Compl. ¶ 20.) However, Carlsbad Police
Department officers responded to the call and requested
support from a San Diego Sheriff's Department canine
unit. (Id. ¶ 21.) Sheriff's Officer Richard
Fischer responded to the call. (See Id. ¶¶
Officers and Officer Fischer eventually found Droz, who was
walking away from the officers. (Compl. ¶¶
22, 23.) When Droz saw Officer Fischer with his canine, Droz
“immediately went down to the ground as
instructed.” (Id. ¶ 24.) Despite
complying with the officers' commands to “get on
the ground, ” Officer Fischer released his canine,
which began biting Droz. (Id. ¶¶ 25, 26.)
Officer Fischer then jumped on Droz and started punching him
while the canine was biting Droz's arm. (Id.
¶ 27.) After approximately one minute and twenty-three
seconds, the canine released Droz's arm, and Droz was
arrested and booked. (Id. ¶¶ 31, 33.) Droz
contends he suffered serious injuries as a result of the
canine attack. (Id. ¶ 34.)
10, 2019, Droz filed this lawsuit against Officer Fischer and
the County of San Diego. The Complaint alleges causes of
action for (1) violation of the Fourth Amendment under 42
U.S.C § 1983 against Officer Fischer, and (2) failure to
properly train and discipline under 42 U.S.C. § 1983
against the County. Defendants now seek to dismiss the
lawsuit on the basis that Droz's causes of action are
time barred. The County also argues that Droz has failed to
state facts supporting the cause of action for failure to
train and discipline.
court must dismiss a cause of action for failure to state a
claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the
legal sufficiency of the complaint. See Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995). A complaint may be dismissed as a matter of law either
for lack of a cognizable legal theory or for insufficient
facts under a cognizable theory. Balisteri v. Pacifica
Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). In
ruling on the motion, a court must “accept all material
allegations of fact as true and construe the complaint in a
light most favorable to the non-moving party.”
Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir.
2007). But a court is not required to accept legal
conclusions couched as facts, unwarranted deductions, or
unreasonable inferences. Papasan v. Allain, 478 U.S.
265, 286 (1986); Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001).
must contain “a short plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The Supreme Court has interpreted this
rule to mean that “[f]actual allegations must be enough
to rise above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 554, 555 (2007). The
allegations in the complaint must “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 570).
argue Droz's lawsuit is time barred because it was filed
more than two years after his arrest. (Fischer
P&A [Doc. 3-1] 1:21-25; County P&A
[Doc. 4-1] 2:1-5.) Droz responds that his lawsuit is timely
because the statute of limitations was tolled during the