Pressley v. M. Pacheco

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT PACHECO'S MOTION TO DISMISS [DOC. NO. 20]

          HON. MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE

         Plaintiff Michael Lamar Pressley, proceeding pro se and in forma pauperis, has filed a First Amended Complaint pursuant to 42 U.S.C. § 1983 against Defendant Pacheco.^[1] See Doc. No. 14. Defendant Pacheco moves to dismiss Plaintiff's claims pursuant to Federal Rules of Civil Procedure 4(m) and 12(b)(6). See Doc. No. 20. Plaintiff filed a response in opposition to the motion, to which Defendant Pacheco replied.^[2] See Doc. Nos. 32, 34. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendant Pacheco's motion to dismiss.

         Background ^[3]

         This action arises out of events occurring on April 13, 2017 during Plaintiff's temporary detention at the San Diego County Sheriff Department's George Bailey Detention Facility.^[4] Plaintiff claims Defendant Pacheco used excessive force against him after he requested a grievance in order to complain about his cell assignment. Plaintiff contends Pacheco “pepper sprayed [him]” through his tray slot “as [he] was getting cuffed up, with [his] hands behind [his] back.” FAC at 3. Plaintiff further alleges Pacheco “was informed that [he] was allergic” to “chemical spray, ” and that he suffered a “grandma [sic] seizure, ” which left him in a coma and “on life support” for seven days as a result of the incident. Id. at 3-4.

         Plaintiff initially filed this action on August 23, 2017. See Doc. No. 1. He filed his first amended complaint on April 4, 2018. See Doc. No. 14. On February 23, 2019, the Court ordered Plaintiff to show cause why it should not dismiss the action based on Plaintiff's failure to serve Defendant Pacheco with the summons and amended complaint. See Doc. No. 15. Plaintiff responded to the order, and on March 11, 2019, the Court granted Plaintiff an extension of time in which to serve Pacheco. See Doc. Nos. 16, 17. Specifically, the Court ordered Plaintiff to effectuate service of the summons and his amended complaint within ninety days. See Doc. No. 17 at 2. Plaintiff served Defendant Pacheco with the summons and amended complaint on June 23, 2019. See Doc. No. 19. Thereafter, Pacheco filed the instant motion to dismiss. See Doc. No. 20.

         Legal Standard

         1. Federal Rule of Civil Procedure 4(m)

         A defendant may move to dismiss based on the plaintiff's failure to timely serve the summons and complaint. See Fed. R. Civ. P. 12(b)(5). Federal Rule of Civil Procedure 4(m) addresses the time limit for service and provides in pertinent part:

If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). The rule “encourages efficient litigation by minimizing the time between commencement of an action and service of process.” Electric Specialty Co. v. Road and Ranch Supply, Inc., 967 F.2d 309, 311 (9th Cir. 1992) (addressing former Fed.R.Civ.P. 4(j)). “Substantial compliance” with Rule 4 is required in order to uphold service of process, even when a defendant has received actual notice. Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982). As relevant here, substantial compliance has been found where service was completed very close to the deadline. See, e.g., Tyson v. City of Sunnyvale, 159 F.R.D. 528, 530 (N.D. Cal. 1995) (service 121 days after filing of the complaint constituted “substantial compliance” with Rule 4(m)).

         2. Federal Rule of Civil Procedure 12(b)(6)

         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is plausible on its face.” Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard thus demands more than a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain allegations of underlying facts sufficient to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

         In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not take legal conclusions as true merely because they are cast in the form of factual allegations. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

         When the plaintiff is appearing pro se, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2001); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal interpretation to a pro se complaint, however, the court is not permitted to “supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The court must give a pro se litigant leave to amend his complaint “unless it determines that the pleading could not possibly be cured by the ...