1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN NOLAN, No. 2:21-cv-02210-TLN-KJN 12 Plaintiff, 13 v. ORDER 14 SEAN KELLY and DUSTIN WILLIS, 15 Defendants. 16 17 This matter is before the Court on Defendants Sean Kelly and Dustin Willis’s 18 (collectively, “Defendants”) Motion to Dismiss. (ECF No. 9.) Plaintiff Steven Nolan 19 (“Plaintiff”) filed an opposition. (ECF No. 11.) Defendants filed a reply. (ECF No. 14.) For the 20 reasons set forth below, the Court GRANTS Defendants’ motion. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND1 2 On December 1, 2019, Plaintiff was disc jockeying at a venue in Vacaville, California. 3 (ECF No. 8 at 3.) While Plaintiff was performing, one of his acquaintances notified him that 4 Plaintiff’s friends had just been involved in a motor vehicle accident nearby. (Id.) Out of 5 concern for the safety of his friends, Plaintiff left work and went towards the scene of the accident 6 to try to render aid. (Id.) As Plaintiff approached the scene, Vacaville Police Officers Kelly and 7 Willis attacked him. (Id.) Plaintiff alleges he was calmly walking toward the scene when Willis 8 suddenly grabbed him and violently pulled him towards the ground. (Id.) Although Plaintiff 9 indicated he was willing to comply, Plaintiff alleges the officers used excessive force to detain 10 him. (Id. at 4.) Plaintiff alleges the officers falsely reported that he was resisting and acting in a 11 threatening manner. (Id.) 12 Plaintiff filed the operative First Amended Complaint (“FAC”) on March 14, 2022. (Id.) 13 Plaintiff alleges the following claims: (1) a 42 U.S.C. § 1983 (“§ 1983”) claim for excessive 14 force; (2) a § 1983 claim for fabrication of evidence; (3) a § 1983 claim for unconstitutional 15 seizure; and (4) a § 1983 claim for unconstitutional search. (Id. at 8–11.) Defendants filed the 16 instant motion to dismiss on April 1, 2022. (ECF No. 9.) 17 II. STANDARD OF LAW 18 A motion to dismiss for failure to state a claim upon which relief can be granted under 19 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. 20 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain 21 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 22 Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). Under notice pleading in 23 federal court, the complaint must “give the defendant fair notice of what the . . . claim is and the 24 grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal 25 citation and quotations omitted). “This simplified notice pleading standard relies on liberal 26 discovery rules and summary judgment motions to define disputed facts and issues and to dispose 27 1 The following recitation of facts is taken, sometimes verbatim, from the allegations in the 28 First Amended Complaint. 1 of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 2 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 3 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 4 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 5 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 6 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 7 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 8 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 9 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 10 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 11 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 12 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 13 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 14 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 15 statements, do not suffice.”). Thus, “[c]onclusory allegations of law and unwarranted inferences 16 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355 17 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 18 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 19 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 20 Council of Carpenters, 459 U.S. 519, 526 (1983). 21 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 22 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 23 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 24 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 25 680. While the plausibility requirement is not akin to a probability requirement, it demands more 26 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 27 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 28 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 1 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 2 dismissed. Id. at 680 (internal quotations omitted). 3 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 4 amend even if no request to amend the pleading was made, unless it determines that the pleading 5 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 6 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); 7 see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 8 denying leave to amend when amendment would be futile). 9 III. ANALYSIS 10 Defendants move to dismiss Claims Two and Four and move to strike paragraphs 20 and 11 36 of the FAC. (ECF No. 9 at 5–6.) Plaintiff states he does not oppose dismissal of Claim Two, 12 nor does he oppose striking paragraphs 20 and 36. (ECF No. 11 at 1–2.) Plaintiff only opposes 13 dismissal of Claim Four. (Id.) Based on Plaintiff’s non-opposition, the Court GRANTS 14 Defendants’ motion to dismiss Claim Two and DISMISSES that claim with prejudice. The Court 15 also GRANTS Defendants’ motion to strike paragraphs 20 and 36.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN NOLAN, No. 2:21-cv-02210-TLN-KJN 12 Plaintiff, 13 v. ORDER 14 SEAN KELLY and DUSTIN WILLIS, 15 Defendants. 16 17 This matter is before the Court on Defendants Sean Kelly and Dustin Willis’s 18 (collectively, “Defendants”) Motion to Dismiss. (ECF No. 9.) Plaintiff Steven Nolan 19 (“Plaintiff”) filed an opposition. (ECF No. 11.) Defendants filed a reply. (ECF No. 14.) For the 20 reasons set forth below, the Court GRANTS Defendants’ motion. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND1 2 On December 1, 2019, Plaintiff was disc jockeying at a venue in Vacaville, California. 3 (ECF No. 8 at 3.) While Plaintiff was performing, one of his acquaintances notified him that 4 Plaintiff’s friends had just been involved in a motor vehicle accident nearby. (Id.) Out of 5 concern for the safety of his friends, Plaintiff left work and went towards the scene of the accident 6 to try to render aid. (Id.) As Plaintiff approached the scene, Vacaville Police Officers Kelly and 7 Willis attacked him. (Id.) Plaintiff alleges he was calmly walking toward the scene when Willis 8 suddenly grabbed him and violently pulled him towards the ground. (Id.) Although Plaintiff 9 indicated he was willing to comply, Plaintiff alleges the officers used excessive force to detain 10 him. (Id. at 4.) Plaintiff alleges the officers falsely reported that he was resisting and acting in a 11 threatening manner. (Id.) 12 Plaintiff filed the operative First Amended Complaint (“FAC”) on March 14, 2022. (Id.) 13 Plaintiff alleges the following claims: (1) a 42 U.S.C. § 1983 (“§ 1983”) claim for excessive 14 force; (2) a § 1983 claim for fabrication of evidence; (3) a § 1983 claim for unconstitutional 15 seizure; and (4) a § 1983 claim for unconstitutional search. (Id. at 8–11.) Defendants filed the 16 instant motion to dismiss on April 1, 2022. (ECF No. 9.) 17 II. STANDARD OF LAW 18 A motion to dismiss for failure to state a claim upon which relief can be granted under 19 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. 20 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain 21 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 22 Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). Under notice pleading in 23 federal court, the complaint must “give the defendant fair notice of what the . . . claim is and the 24 grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal 25 citation and quotations omitted). “This simplified notice pleading standard relies on liberal 26 discovery rules and summary judgment motions to define disputed facts and issues and to dispose 27 1 The following recitation of facts is taken, sometimes verbatim, from the allegations in the 28 First Amended Complaint. 1 of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 2 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 3 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 4 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 5 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 6 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 7 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 8 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 9 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 10 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 11 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 12 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 13 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 14 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 15 statements, do not suffice.”). Thus, “[c]onclusory allegations of law and unwarranted inferences 16 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355 17 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 18 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 19 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 20 Council of Carpenters, 459 U.S. 519, 526 (1983). 21 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 22 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 23 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 24 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 25 680. While the plausibility requirement is not akin to a probability requirement, it demands more 26 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 27 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 28 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 1 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 2 dismissed. Id. at 680 (internal quotations omitted). 3 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 4 amend even if no request to amend the pleading was made, unless it determines that the pleading 5 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 6 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); 7 see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 8 denying leave to amend when amendment would be futile). 9 III. ANALYSIS 10 Defendants move to dismiss Claims Two and Four and move to strike paragraphs 20 and 11 36 of the FAC. (ECF No. 9 at 5–6.) Plaintiff states he does not oppose dismissal of Claim Two, 12 nor does he oppose striking paragraphs 20 and 36. (ECF No. 11 at 1–2.) Plaintiff only opposes 13 dismissal of Claim Four. (Id.) Based on Plaintiff’s non-opposition, the Court GRANTS 14 Defendants’ motion to dismiss Claim Two and DISMISSES that claim with prejudice. The Court 15 also GRANTS Defendants’ motion to strike paragraphs 20 and 36. 16 As to Claim Four, Defendants argue the FAC is devoid of facts indicating that the officers 17 conducted any search of Plaintiff’s person or property. (ECF No. 9 at 12.) In opposition, 18 Plaintiff argues paragraph 46 of the FAC is sufficient to state his claim for an unlawful search. 19 (Id.) Paragraph 46 states: “On December 1, 2019, KELLY, WILLIS, and DOES 1-50, inclusive 20 DOES 1-50, inclusive, unconstitutionally searched NOLAN’s person after he was detained and 21 his person was seized without probable cause or a search warrant.” (ECF No. 8 at ¶ 46.) The 22 Court agrees with Defendants that paragraph 46 is conclusory. Plaintiff has not cited — nor can 23 the Court locate — any factual allegations indicating that Kelly or Willis participated in any 24 search. See Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002) (“[A] plaintiff [cannot] hold an 25 officer liable because of his membership in a group without a showing of individual participation 26 in the unlawful conduct.”). 27 Accordingly, the Court GRANTS Defendants’ motion to dismiss Claim Four with leave to 28 amend. 1 IV. CONCLUSION 2 For the foregoing reasons, the Court GRANTS Defendants’ Motion (ECF No. 9) as 3 | follows: 4 1. Claim Two is DISMISSED with prejudice; 5 2. Claim Four is DISMISSED with leave to amend; and 6 3. Paragraphs 20 and 36 of the FAC are stricken. 7 Plaintiff may file an amended complaint not later than thirty (30) days from the electronic 8 | filing date of this Order. Defendants shall file a responsive pleading not later than twenty-one 9 | (21) days after Plaintiff files an amended complaint. If Plaintiff opts not to file an amended 10 | complaint, this case will proceed on the remaining claims in the FAC (Claims One and Three), 11 | and Defendants shall file an answer not later than twenty-one (21) days from Plaintiff's deadline 12 | for filing an amended complaint. 13 IT IS SO ORDERED. 14 | DATED: January 30, 2023 15 o> /) 16 “ \/ thu
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