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Bivins v. Rodriguez

United States District Court, E.D. California

January 13, 2020

JOHN PENN BIVINS, Plaintiff,
v.
MARCO RODRIGUEZ, et al., Defendants.

          FINDINGS AND RECCOMMENDATIONS

          DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Pending before the court are: (1) defendant Sarabia's motion to dismiss (ECF No. 43); and (2) defendant Rodriguez's motion to dismiss (ECF No. 56).

         I. PLAINTIFF'S ALLEGATIONS

         This action proceeds on plaintiff's first amended complaint. See ECF No. 29. Plaintiff names the following as defendants: (1) Marco Rodriguez, a Deputy U.S. Marshall, and (2) Chris Sarabia, a California Highway Patrol Officer.[1] See ECF No. 29, pg. 1. Plaintiff's first amended complaint contends that the defendants violated his Fourth, Eighth, and Fourteenth Amendment rights by conducting an unnecessarily hostile arrest of plaintiff. Id. at 1-3. The first amended complaint does not contain any stand-alone claims under the Fifth Amendment.

         According to plaintiff, on November 21, 2017, plaintiff and defendants were engaged in a highspeed vehicle chase to apprehend plaintiff. Id. At some point during the chase, defendant Rodriguez struck plaintiff's vehicle, causing it to spin out of control. Id. When the vehicle came to a stop, both defendants approached plaintiff's vehicle with their firearms drawn. Id. Plaintiff raised his hands in surrender and told the defendants to not shoot him. Id. After this, Rodriguez told plaintiff to put his hands in the air and step out of the vehicle, yelled profanity at him, and shot at plaintiff. Id. Plaintiff was struck in his left forearm and right-hand ring finger. Id.

         Plaintiff then ducked down in his car and drove approximately 200-300 feet away to avoid being shot again. After this, Sarabia shot at plaintiff, striking the vehicle's window, hood, and door. Id. As a result, glass shattered and cut plaintiff on his right hand and arm. Id. Plaintiff contends that: (1) he initially attempted to surrender; (2) he only fled to avoid being shot again; and (3) defendants' violent conduct deprived him of his constitutional rights. Id.

         II. STANDARDS FOR MOTION TO DISMISS

         In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

         Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557).

         In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

         Finally, leave to amend must be granted “[u]nless it is absolutely clear that no amendment can cure the defects.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

         III. DISCUSSION

         A. Defendant Sarabia's Motion to Dismiss

         On April 22, 2019, defendant Sarabia filed a motion pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) to dismiss plaintiff's Eighth and Fourteenth Amendment claims. See ECF No. 43-1, pgs. 3-4. Defendant Sarabia presents no argument concerning plaintiff's Fourth Amendment claim. Id. On May 13, 2019, plaintiff filed a statement of non-opposition to defendant Sarabia's motion to dismiss. See ECF No. 49. In the statement, plaintiff agrees to dismissal of his Eighth and Fourteenth Amendment claims and indicates his desire to proceed solely on his Fourth Amendment claim. See Id.

         On May 20, 2019, defendant Sarabia filed a reply. See ECF No. 51. In his reply, defendant references the Fifth Amendment for the first time in this case and argues that “[p]laintiff failed to oppose the motion to dismiss. . . as to the Fifth Amendment, which is also a concession as to its merits.” Id. at 1. Defendant Sarabia adds: “There is no basis for a cause of action based on the Fifth Amendment.” Id. Because plaintiff's first amended complaint does not allege any claim under the Fifth Amendment, the court agrees.

         Thus, to the extent defendant Sarabia seeks the dismissal of only plaintiff's Eighth and Fourteenth Amendment claims, and to the extent plaintiff agrees and seeks the resolution of only his Fourth amendment claim, there appears to be no dispute raised by defendant Sarabia's motion.[2]

         B. Defendant Rodriguez's Motion to Dismiss

         On June 14, 2019, defendant Rodriguez filed his own Rule 12(b)(6) motion to dismiss plaintiff's first amended complaint. See ECF No. 56. Rodriguez argues that, because he is a federal agent, plaintiff's complaint does not properly state a private right of action under applicable law. Id. Specifically, defendant argues:

The [complaint] alleges that Deputy Rodriguez violated Bivins' rights under the Fourth Amendment when Deputy Rodriguez shot at Bivins following a high-speed vehicle chase. The claims must be dismissed because, under the Supreme Court's decision in Ziglar v. Abbasi, this Court cannot recognize a cause of ...

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