United States District Court, E.D. California
M. COTA UNITED STATES MAGISTRATE JUDGE
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).
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. 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
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
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.
STANDARDS FOR MOTION TO DISMISS
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).
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).
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).
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).
Defendant Sarabia's Motion to Dismiss
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
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.
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
Defendant Rodriguez's Motion to Dismiss
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 ...