United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
PACHECO'S MOTION TO DISMISS [DOC. NO. 20]
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE
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. 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. 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.
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. 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.
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.
Federal Rule of Civil Procedure 4(m)
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)).
Federal Rule of Civil Procedure 12(b)(6)
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).
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).
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 ...