1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN MIGUEL ZEPEDA, Case No. 2:25-cv-02439-TLN-CSK (PS) 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 OFFICER GREGORY ROTON, individually; OFFICER A. AZIZ, (ECF No. 21) 15 individually; DOE 1, individually; and CITY OF TURLOCK, 16 Defendants. 17
18 19 Plaintiff Ruben Miguel Zepeda is proceeding in this action pro se.1 Pending before 20 the Court is Defendants Officer Gregory Roton, Officer A. Aziz, and City of Turlock’s 21 motion to strike pursuant to Federal Rule of Civil Procedure 15(a)(2) and motion to 22 dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 21.) On 23 December 30, 2025, the Court vacated the hearing scheduled for January 27, 2026 on 24 Defendants’ motion. 12/30/2025 Minute Order (ECF No. 25). Briefing is now complete. 25 Pursuant to Local Rule 230(g), the Court submits the motion upon the record and briefs 26 on file. For the reasons that follow, the Court RECOMMENDS GRANTING Defendants’ 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 28 Civ. P. 72, and Local Rule 302(c). 1 motion to dismiss Plaintiff’s First Amended Complaint (ECF No. 33) with leave for 2 Plaintiff to amend. 3 I. BACKGROUND 4 A. Factual Allegations2 5 Plaintiff alleges that on or about December 6, 2024, at around 7:30 a.m., 6 Defendant Roton, Defendant Aziz, and an unidentified Doe Officer initiated an arrest of 7 Plaintiff while Plaintiff was present near North Broadway and Chestnut Street. FAC ¶ 14 8 (ECF No. 33). Plaintiff alleges that as he stepped toward a street curb, he tripped, 9 whereupon Defendant Aziz tackled Plaintiff. Id. ¶ 15. Plaintiff alleges that around the 10 same time, the Doe Officer “nearly struck Plaintiff with his bike.” Id. ¶ 16. Plaintiff further 11 alleges that while he “was down and controlled, Officer Gregory Roton ran in and 12 punched Plaintiff in the face with a closed fist, contacting an upper tooth and causing 13 immediate dental/jaw pain.” Id. ¶ 17. Plaintiff alleges he “repeatedly complained of 14 tooth/jaw pain” as he was being pinned to the ground and handcuffed. Id. ¶ 18. Plaintiff 15 alleges that despite his complaints, “on-scene officers did not summon medical care 16 before booking” and that “the impacted tooth later fell out and required extraction after 17 delay.” Id. ¶ 19. 18 The FAC alleges three causes of action for violation of Plaintiff’s federal civil rights 19 under 42 U.S.C. § 1983: (1) excessive force in violation of the Fourth Amendment; 20 (2) failure to intervene; and (3) denial of medical care in violation of the Fourteenth 21 Amendment. Id. ¶¶ 21-31. The FAC alleges five additional causes of action under 22 California law: (4) battery; (5) assault; (6) interference with Plaintiff’s civil rights under 23 the California Bane Act; (7) negligence, and (8) failure to provide medical care in 24 violation of California Government Code section 845.6. Id. ¶¶ 32-42. Plaintiff seeks 25
26 2 These facts primarily derive from Plaintiff’s First Amended Complaint (ECF No. 33), which are construed in the light most favorable to Plaintiff as the non-moving party. 27 Faulkner v. ADT Sec. Servs., 706 F.3d 1017, 1019 (9th Cir. 2013). However, the Court does not assume the truth of any conclusory factual allegations or legal conclusions. 28 Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).0 1 monetary damages, including punitive damages against the individual officer 2 defendants. Id. ¶ 44. 3 B. Procedural Posture 4 On June 12, 2025, Plaintiff filed this action in Stanislaus County Superior Court. 5 (ECF No. 1 at 5.) On August 25, 2025, Defendants removed the action to the Eastern 6 District of California. (See id. at 1-2.) 7 On September 2, 2025, Defendants filed a motion for more definite statement 8 pursuant to Federal Rule of Civil Procedure 12(e). (ECF No. 5.) On October 14, 2025, 9 the Court recommended that the action be dismissed based on Plaintiff’s failure to 10 prosecute the action. 10/14/2025 Findings and Recommendations (ECF No. 8). That 11 same day, Plaintiff filed a request to extend the deadline to file his opposition to 12 Defendants’ motion, and a motion to proceed in forma pauperis. (ECF Nos. 9, 10.) The 13 Court vacated its October 14, 2025 Findings and Recommendations, granted Plaintiff’s 14 request for an extension, and denied the motion to proceed in forma pauperis as moot. 15 10/29/2025 Order (ECF No. 12). 16 On November 14, 2025, Plaintiff filed a First Amended Complaint, which was not 17 signed by Plaintiff. (ECF No. 13.) Plaintiff then filed a second “First Amended Complaint” 18 on December 1, 2025, also unsigned, but with an attached, signed declaration by 19 Plaintiff. (ECF No. 15.) On December 2, 2025, Defendants filed a motion to dismiss the 20 November 14, 2025 First Amended Complaint. (ECF No. 14.) Defendants filed a second 21 motion to dismiss the December 1, 2025 First Amended Complaint on December 17, 22 2025. (ECF No. 21.) Plaintiff filed an opposition to Defendants’ motion to dismiss on 23 December 23, 2025. (ECF No. 24.) Defendants filed their reply on January 6, 2026. 24 (ECF No. 26.) 25 On December 30, 2025, the Court denied Defendants’ motion for more definite 26 statement and the December 2, 2025 motion to dismiss as moot, and the Court vacated 27 both hearing dates for the two motions to dismiss. 12/30/2025 Minute Order (ECF No. 28 25). The Court further noted that Plaintiff had filed the two First Amended Complaints 1 without leave of court. Id. The Court accepted the December 1, 2025 First Amended 2 Complaint as the operative pleading in this case, but because the pleading itself was not 3 signed, the Court ordered Plaintiff to re-file the December 1, 2025 First Amended 4 Complaint with a physical signature. Id. Plaintiff filed a signed version of the December 5 1, 2025 First Amended Complaint on February 10, 2026. FAC (ECF No. 33). The same 6 day, Plaintiff also filed a request for judicial notice. (ECF No. 32.) 7 II. LEGAL STANDARDS 8 A. Rule 8, Pro Se Pleadings, Construction and Amendment 9 Notice pleading in federal court requires that the complaint “give the defendant 10 fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic v. 11 Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted). Pursuant 12 to Federal Rule of Civil Procedure 8(a), a pleading must contain: “(1) a short and plain 13 statement of the grounds for the court's jurisdiction . . . ; (2) a short and plain statement 14 of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief 15 sought, which may include relief in the alternative or different types of relief.” The 16 complaint must clearly and fully set forth “who is being sued, for what relief, and on what 17 theory, with enough detail to guide discovery.” McHenry v. Renne, 84 F.3d 1172, 1178 18 (9th Cir. 1996). Each allegation must be simple, concise, and direct. Id. Rule 8(d)’s 19 requirement that each averment of a pleading be “‘simple, concise, and direct,’ applies to 20 good claims as well as bad, and is a basis for dismissal independent of Rule 12(b)(6).” 21 Id. at 1179. “The propriety of dismissal for failure to comply with Rule 8 does not depend 22 on whether the complaint is wholly without merit.” Id. 23 Pro se pleadings are to be liberally construed and afforded the benefit of any 24 doubt. Chambers v. Herrera, 78 F.4th 1100, 1104 (9th Cir. 2023). However, the court 25 need not accept as true conclusory allegations, unreasonable inferences, or 26 unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th 27 Cir. 1981). To give fair notice of the claims and the grounds on which they rest, a plaintiff 28 must allege with at least some degree of particularity overt acts by specific defendants 1 which support the claims. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). A 2 formulaic recitation of the elements of a cause of action does not suffice to state a claim. 3 Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To 4 state a claim on which relief may be granted, the plaintiff must allege enough facts “to 5 state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 6 has facial plausibility when the plaintiff pleads factual content that allows the court to 7 draw the reasonable inference that the defendant is liable for the misconduct alleged.” 8 Iqbal, 556 U.S. at 678. 9 Upon dismissal of any claims, the court must inform a pro se plaintiff of a 10 pleading’s deficiencies and provide an opportunity to cure such defects. Garity v. APWU 11 Nat'l Lab. Org., 828 F.3d 848, 854 (9th Cir. 2016). However, if amendment would be 12 futile, leave to amend does not need to be provided. Lathus v. City of Huntington Beach, 13 56 F.4th 1238, 1243 (9th Cir. 2023). 14 B. Failure to State a Claim under Rule 12(b)(6) 15 A claim may be dismissed because of the plaintiff’s “failure to state a claim upon 16 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim if 17 it either lacks a cognizable legal theory or sufficient facts to support a cognizable legal 18 theory. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015). When considering 19 whether a claim has been stated, the court must accept the well-pleaded factual 20 allegations as true and construe the complaint in the light most favorable to the non- 21 moving party. Id. However, the court is not required to accept as true conclusory factual 22 allegations contradicted by documents referenced in the complaint, or legal conclusions 23 merely because they are cast in the form of factual allegations. Paulsen v. CNF Inc., 559 24 F.3d 1061, 1071 (9th Cir. 2009). To determine the propriety of a dismissal motion, the 25 court may not consider facts raised outside the complaint (such as in an opposition 26 brief), but it may consider such facts when deciding whether to grant leave to amend. 27 Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003). 28 / / / 1 C. Judicial Notice 2 When reviewing a motion to dismiss, courts may consider undisputed facts 3 contained in judicially noticeable documents under Federal Rule of Evidence 201 without 4 converting the motion to one for summary judgment. United States v. Ritchie, 342 F.3d 5 903, 908 (9th Cir. 2003). This includes undisputed facts from documents attached to the 6 complaint or those on which the complaint “necessarily relies.” Marder v. Lopez, 450 7 F.3d 445, 448 (9th Cir. 2006); see Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th 8 Cir. 2012) (approving judicial notice of documents from judicial proceedings); King v. 9 California Dep't of Water Res., 561 F. Supp. 3d 906, 910 (E.D. Cal. 2021) (taking judicial 10 notice of administrative agency records, including decisional documents); Gamboa v. Tr. 11 Corps., 2009 WL 656285, at *3 (N.D. Cal. Mar. 12, 2009) (taking judicial notice of 12 recorded documents related to a foreclosure sale, including grant deed and deed of 13 trust, as they were “part of the public record and [] easily verifiable”). 14 III. DISCUSSION3 15 A. Requests for Judicial Notice 16 Both Plaintiff and Defendants submit requests for judicial notice in support of their 17 briefing on Defendants’ motion to dismiss. 18 First, Defendants request that the Court take judicial notice of (1) Plaintiff’s 19 original state-court complaint filed on June 12, 2025, and (2) a criminal complaint against 20 Plaintiff filed on December 9, 2024, and a minute order dated March 7, 2025 indicating 21 that Plaintiff pleaded nolo contendere to the charges in the criminal complaint, namely, 22 felony unauthorized use of a vehicle, felony receipt of a stolen vehicle, and 23
24 3 In Defendants’ motion, Defendants move to strike the FAC as procedurally improper. Defs. Mot. at 2 (ECF No. 21-1). The Court has already addressed this issue, and ruled 25 that despite Plaintiff not receiving leave of Court to file a FAC, the Court will accept the 26 FAC filed on 12/01/2025 as the operative pleading in this case. 12/30/2025 Minute Order (ECF No. 25.) This issue is therefore moot, and the Court notes that Defendants were 27 not prejudiced where they were able to respond to the FAC. In addition, Defendants have not contended that they are prejudiced by any delay in Plaintiff’s re-filing of the 28 December 1, 2025 First Amended Complaint to correct his missing signature. 1 misdemeanor resisting, delaying, or obstructing a public officer, peace officer, or 2 emergency medical technician. (ECF No. 21-2.) As to the state-court complaint, 3 Defendants’ request is moot because the state-court complaint is already part of the 4 record before this Court where Plaintiff attached it to his complaint. (See ECF No. 1 at 5- 5 9); see also, e.g., Moreno v. Zuckerman Fam. Farms, Inc., 2026 WL 323088, at *4 (E.D. 6 Cal. Feb. 6, 2026) (“Since the [complaint] is already on record as part of Defendants’ 7 notice of removal, the Court denies Defendants’ request for judicial notice as moot.”). 8 As to the criminal complaint and minute order, Defendants have failed to 9 establish the relevance of these documents to the resolution of the issues before the 10 Court. See Fed. R. Evid. 401(b); Gerritsen v. Warner Bros. Ent. Inc., 112 F. Supp. 3d 11 1011, 1030 (C.D. Cal. 2015) (denying judicial notice of information in press releases and 12 publicly available news articles because it was irrelevant for purposes of the motion to 13 dismiss). Thus, the Court DENIES Defendants’ request for judicial notice as to both 14 items. 15 Plaintiff requests that the Court take judicial notice of Plaintiff’s “written 16 Government Claim to the City of Turlock, relating to the December 6, 2024 incident at 17 issue in this case, which was received by the City Clerk of the City of Turlock on January 18 6, 2025.” (ECF No. 32 at 1.) However, the claim form is not attached to the request for 19 judicial notice. “The party requesting judicial notice should also supply the court with the 20 source material needed to determine whether the request is justified.” Howerton v. 21 Earthgrains Baking Companies Inc., 2015 WL 3657748, at *2 (E.D. Cal. June 11, 2015). 22 Because Plaintiff failed to attach the claim form, the Court DENIES Plaintiff’s request for 23 judicial notice. 24 B. Defendants’ Motion to Dismiss 25 Defendants move to dismiss the FAC as a shotgun pleading and for failure to 26 state a claim. See Defs. Mot. Plaintiff in opposition argues that the FAC provides fair 27 notice of Plaintiff’s claims and sufficiently states facts supporting a “plausible” claim for 28 relief. See Pl. Opp'n. (ECF No. 24). The Court addresses each of Defendants’ 1 arguments in turn. 2 1. Federal Rule of Civil Procedure 8 3 Defendants argue that the FAC should be dismissed because it constitutes a 4 shotgun pleading. Defs. Mot. at 6-7. Defendants contend “the FAC is conclusory and 5 vague as phrased” and “relies heavily on facts realleged in prior paragraphs without 6 identifying specific facts supporting the particular claim.” Id. at 7. Plaintiff contends that 7 the FAC provides a short and plain statement of Plaintiff’s claims. Pl. Opp’n at 5. 8 The Court finds that, independent of whether the FAC fails to state a claim under 9 Federal Rule of Civil Procedure 12(b)(6), the FAC does not contain a short and plain 10 statement of a claim as required by Federal Rule of Civil Procedure 8. In order to give 11 fair notice of the claims and the grounds on which they rest, a plaintiff must allege with at 12 least some degree of particularity overt acts by specific defendants which support the 13 claims. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Although the Federal 14 Rules adopt a flexible pleading policy, even a pro se litigant's complaint must give fair 15 notice and state the elements of a claim plainly and succinctly. Jones v. Community 16 Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). To comply with Rule 8, a complaint 17 should clearly and fully set forth “who is being sued, for what relief, and on what theory, 18 with enough detail to guide discovery.” McHenry, 84 F.3d at 1177. 19 Here, in its current form, the FAC fails to provide Defendants with fair notice of the 20 grounds on which each claim rests because it lacks sufficient particularity. First, the FAC 21 repeatedly neglects to allege the specific wrongful actions that each Defendant took. 22 See FAC ¶¶ 18 (“officers pulled [Plaintiff’s arm] back”), 19 (“on-scene officers did not 23 summon medical care . . .”), 31 (“Defendants failed to promptly summon care . . .”), 37 24 (“Defendants . . . interfered with Plaintiff’s clearly established rights . . .”), 40 25 (“Defendants owed duties of reasonable care”), 42 (“Officers knew or had reason to 26 know Plaintiff needed immediate medical care . . . and failed to take reasonable action . . 27 .”). Further, each of Plaintiff’s causes of action incorporates all preceding allegations in 28 the FAC, which is indicative of an improper “shotgun pleading.” See Gibson v. City of 1 Portland, 165 F.4th 1265, 1288 (9th Cir. 2026) (shotgun pleading occurs where party 2 “incorporate[es] all facts or defenses from all previous counts into each successive count 3 . . . prevent[ing] the opposing party from reasonably being able to prepare a response or 4 simply mak[ing] the burden of doing so more difficult”) (quoting 5A Wright & Miller's 5 Federal Practice and Procedure § 1326 (4th ed. 2024)). “It is not the job of the district 6 courts to make sense of the pleading, to supply facts to support the claim, or to imagine 7 the claims that might fit the facts.” Gibson, 165 F.4th at 1289. Therefore, because the 8 FAC states vague allegations and incorporates all prior allegations into each of Plaintiff’s 9 subsequent counts, the Court exercises its discretion to dismiss the FAC with leave to 10 amend in compliance with Rule 8. See id. Nonetheless, in light of Plaintiff’s pro se status 11 and in the interest of resolving as many deficiencies as possible in one round of 12 amendment, the Court proceeds to evaluate whether the FAC’s claims are properly 13 pleaded pursuant to Rule 12(b)(6). 14 2. Section 1983 Claims 15 Plaintiff’s FAC alleges three causes of actions under 42 U.S.C. § 1983. First, 16 Plaintiff brings claims for excessive force in violation of his Fourth Amendment rights 17 against Defendant Roton, Defendant Aziz, and the Doe Officer. FAC ¶¶ 21-25. Second, 18 Plaintiff brings claims for failure to intervene against Defendant Aziz and the Doe Officer. 19 Id. ¶¶ 26-28. Third, Plaintiff brings claims for denial of medical care against Defendant 20 Roton, Defendant Aziz, and the Doe Officer. Id. ¶¶ 29-31. Defendants argue Plaintiff’s 21 Section 1983 claims for excessive force are barred by qualified immunity. Defs. Mot. at 22 7. Defendants also argue that each of Plaintiff’s Section 1983 claims fail to state a claim. 23 Id. at 7-9. 24 42 U.S.C. § 1983 “provides a cause of action for the deprivation of any rights, 25 privileges, or immunities secured by the Constitution and laws of the United States.” 26 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (internal quotation marks 27 omitted). “Section 1983 is not itself a source of substantive rights but merely provides a 28 method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 1 266, 271 (1994) (citation and internal quotation marks omitted). To state a cognizable 2 Section 1983 claim, a plaintiff must allege the violation of a right protected by the 3 Constitution and laws of the United States, and that the alleged deprivation was 4 committed by a person who acted under color of state law. 42 U.S.C. § 1983; see also 5 Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921 (9th Cir. 2011). An 6 individual defendant is not liable on a civil rights claim unless the facts establish the 7 defendant's personal involvement in the constitutional deprivation or a causal connection 8 between the defendant's wrongful conduct and the alleged constitutional deprivation. 9 See Hansen v. Black, 885 F.2d 642, 645 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 10 740, 743-44 (9th Cir. 1978). That is, a plaintiff may not sue a supervisory official on the 11 theory that the official is liable for the unconstitutional conduct of his or her subordinates. 12 Iqbal, 556 U.S. at 679. 13 a. Excessive Force 14 Plaintiff alleges that Defendant Roton’s closed-fist punch to Plaintiff’s face, 15 Defendant Aziz’s tackle, and the Doe Officer’s bicycle maneuver each constituted 16 excessive force in violation of the Fourth Amendment. FAC ¶¶ 21-25. Defendants argue 17 that Plaintiff fails to allege that the officers’ use of force was objectively unreasonable 18 where, according to the original complaint, Plaintiff alleged that he was running from the 19 arresting officers. Defs. Mot. at 8. This argument fails as the Court’s review of whether 20 the FAC states an excessive force claim is limited to the FAC, not the original complaint. 21 Defendants also argue the officers’ actions are protected under qualified 22 immunity. Id. at 7. Plaintiff responds that Defendant Roton’s punch was not objectively 23 reasonable because it occurred after he was in a controlled position, and Plaintiff 24 disputes whether qualified immunity is appropriate to decide at this stage. Pl. Opp’n at 5- 25 6. On reply, Defendants argue that Plaintiff’s allegations lack factual context 26 demonstrating the officers’ actions were unreasonable. Def. Reply at 5. 27 The Supreme Court of the United States has determined that the Due Process 28 Clause of the Fourteenth Amendment protects individuals who have not yet been 1 convicted of a crime “from the use of excessive force that amounts to punishment.” 2 Graham v. Connor, 490 U.S. 386, 388 (1989). However, “claim[s] that law enforcement 3 officials used excessive force in the course of making an arrest, investigatory stop, or 4 other ‘seizure’ . . . are properly analyzed under the Fourth Amendment's ‘objective 5 reasonableness' standard.” Id.; see also Chew v. Gates, 27 F.3d 1432, 1440 (9th 6 Cir.1994) (“[T]he use of force to effect an arrest is subject to the Fourth Amendment's 7 prohibition on unreasonable seizures.”). 8 As to Defendant Roton, Plaintiff has stated an excessive force claim where the 9 FAC alleges that Officer Roton struck Plaintiff with a closed fist “[w]hile Plaintiff was 10 down and controlled.” FAC ¶ 17. “Although not considered lethal, punching and kicking, 11 are still significant uses of force and may be unreasonable depending on the 12 circumstances.” Osaki v. City of San Bernardino, 2020 WL 5778131, at *10 (C.D. Cal. 13 Sept. 4, 2020) (citing Blankenhorn v. City of Orange, 485 F.3d 463, 480 (9th Cir. 2007)), 14 report and recommendation adopted, 2020 WL 5764397 (C.D. Cal. Sept. 25, 2020). The 15 Ninth Circuit has held that when the complaint alleges facts indicating the plaintiff was 16 not fleeing and could not resist law-enforcement officers, subsequent continued use of 17 force may be unreasonable. Hyde v. City of Willcox, 23 F.4th 863, 871 (9th Cir. 2022) 18 (holding that plaintiff alleged law-enforcement officers used excessive force where 19 plaintiff alleged he “had his hands handcuffed behind his back and his legs shackled” 20 and, two minutes later, officer used taser on plaintiff’s thigh and forced plaintiff’s head 21 into restraint hold). 22 As to Defendant Aziz, the Court finds that Plaintiff fails to state an excessive force 23 claim because the FAC does not indicate whether Plaintiff was resisting arrest when 24 Defendant Aziz moved to arrest Plaintiff and the FAC’s allegations imply Plaintiff stepped 25 away from Officer Aziz. See FAC ¶ 15; Gonzales v. City of San Jose, 2020 WL 3186282, 26 at *4 (N.D. Cal. June 15, 2020) (holding that plaintiff failed to state claim for excessive 27 force where plaintiff conceded he attempted to evade arrest by biking in opposite 28 direction from officers). 1 As to the Doe Officer, the Court also finds that Plaintiff fails to state an excessive 2 force claim because the FAC fails to state particular facts to establish that the Doe 3 Officer actually and intentionally hit Plaintiff with his or her bicycle or otherwise used the 4 bicycle as a means of force when Plaintiff was not resisting arrest. “If no force was used, 5 there can be no claim for excessive force.” Dentoni v. Sierra Cnty., 2026 WL 219007, at 6 *3 (E.D. Cal. Jan. 28, 2026) (holding that plaintiffs failed to state claim for excessive 7 force by alleging defendants used “intimidating body language”); see also Gonzales, 8 2020 WL 3186282, at *4 (holding that plaintiff failed to state claim because “[t]he 9 complaint is not clear enough about the force used by the patrol vehicle that stopped 10 Gonzales,” i.e., whether the vehicle was used as a barricade or an impact weapon). 11 b. Failure to Intervene 12 Plaintiff alleges that Defendant Aziz and the Doe Officer are liable forfailing to 13 prevent Defendant Roton’s punch. FAC ¶ 28. Defendants argue this claim fails because 14 Plaintiff does not allege facts suggesting that Defendant Aziz was aware of any 15 excessive force exercised by Defendant Roton or that Defendant Aziz had the 16 reasonable opportunity to prevent it. Defs. Mot. at 8. The Court agrees. 17 “Pursuant to a long line of civil cases, police officers have a duty to intercede 18 when their fellow officers violate the constitutional rights of a suspect or other citizen.” 19 United States v. Koon, 34 F.3d 1416, 1447 (9th Cir.1994), rev'd on other grounds, 518 20 U.S. 81 (1996); see also Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000). 21 “Importantly, however, officers can be held liable for failing to intercede only if they had 22 an opportunity to intercede.” Cunningham, 229 F.3d at 1289. “Where events unfold 23 rapidly and come without warning, there is no realistic opportunity to intercede, and thus 24 no failure to intervene.” Sanchez v. City of Atherton, 2023 WL 5599612, at *7 (N.D. Cal. 25 Aug. 29, 2023) (citing Hughes v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2022)). Thus, 26 at the pleadings stage, the plaintiff must allege that an officer had a reasonable 27 opportunity to intercede. See Johnson v. Frauenheim, 2021 WL 5236498, at *9 (E.D. 28 Cal. Nov. 10, 2021) (holding plaintiff failed to plead failure to intervene claim where 1 plaintiff failed to allege that each defendant was present during the use of force, could 2 see the use of force, and had a realistic opportunity to intervene), report and 3 recommendation adopted, 2021 WL 5982293 (E.D. Cal. Dec. 17, 2021). 4 Here, the FAC fails to state a failure to intervene claim under Section 1983. The 5 FAC alleges that Defendant Aziz and the Doe Officer “were positioned to prevent or halt 6 Roton’s punch/continuing force and failed to act, causing harm.” FAC ¶ 28. Plaintiff does 7 not allege any other supporting facts. To the contrary, the FAC appears to allege that the 8 punch occurred simultaneously with Defendant Aziz’s tackling arrest and the Doe 9 Officer’s bicycle maneuver, meaning neither were positioned to stop Defendant Roton’s 10 punch. Id. ¶¶ 15-16. Thus, the FAC fails to state a failure to intervene claim. See 11 Johnson, 2021 WL 5236498, at *9 (“Plaintiff alleges that some or all of these Defendants 12 were engaging in acts excessive force at that time, and therefore were not failing to 13 intervene.”). In addition, the FAC does not contain any other allegations that specify an 14 individual officer defendant who failed to intervene. See Hansen, 885 F.2d at 645; 15 Johnson, 588 F.2d at 743-44. 16 c. Medical Care 17 Plaintiff’s third cause of action under Section 1983 alleges that Defendants failed 18 to provide medical care in response to Plaintiff’s “obvious dental trauma and pain, 19 causing avoidable suffering and tooth loss.” FAC ¶ 31. This claim is styled as a claim 20 under the Fourteenth Amendment for “Denial of Pre-Booking Medical Care.” Id. at 6. 21 Defendants argue that Plaintiff fails to allege sufficient facts to establish a Fourteenth 22 Amendment violation because the FAC contains no allegations that Defendants 23 intentionally decided to deny medical care or that such a decision placed Plaintiff at 24 substantial risk of suffering serious harm. Defs. Mot. at 9. Plaintiff responds that 25 “[a]llegations that officers ignored visible injury and complaints sufficiently plead a 26 constitutional violation at this stage.” Pl. Opp’n at 7. 27 Though the FAC styles the claim as arising under the Fourteenth Amendment, 28 “[c]laims alleging inadequate medical care during and immediately following an arrest 1 are to be analyzed under the Fourth Amendment.” Allen v. Summit, 2024 WL 2258383, 2 at *6 (E.D. Cal. May 17, 2024) (quoting Espinoza v. California Highway Patrol, 2016 WL 3 4943960, at *3 (E.D. Cal. Sept. 16, 2016)). “The Ninth Circuit has concluded . . . that the 4 Fourth Amendment requires an arrestee to receive objectively reasonable care,” i.e., that 5 “police officers [must] seek the necessary medical attention for a detainee when he or 6 she has been injured while being apprehended by either promptly summoning the 7 necessary medical help or by taking the injured detainee to a hospital.” Wallace v. 8 Acosta, 2021 WL 4445292, at *4, *5 (E.D. Cal. Sept. 28, 2021) (quoting Tatum v. City 9 and County of San Francisco, 441 F.3d 1090, 1099 (9th Cir. 2006)). 10 Here, the FAC fails to state a claim for Section 1983 inadequate medical care 11 because the FAC does not identify individual Defendants who were aware of and 12 deliberately ignored Plaintiff’s medical needs. As the Court has already stated, vague 13 and conclusory allegations concerning the involvement of official personnel in civil rights 14 violations are not sufficient. See Ivey, 673 F.2d at 268. The FAC does not contain 15 specific allegations against an individual officer defendant showing their connection or 16 involvement in the alleged inadequate medical care. See Hansen, 885 F.2d at 645; 17 Johnson, 588 F.2d at 743-44; Cheslik v. Madera Cnty. Sheriff's Dep't, 2025 WL 974082, 18 at *10 (E.D. Cal. Mar. 31, 2025) (holding that plaintiff failed to state Fourth Amendment 19 delay in providing medical care claim where plaintiff “fails to allege specific facts 20 describing any observable symptoms he exhibited to allow the Court to infer the 21 seriousness of his medical need”); Wallace, 2021 WL 4445292, at *5 (holding that 22 plaintiff failed to state Fourth Amendment medical care claim because plaintiff failed to 23 describe when and to whom he requested medical care and their response); Bergman v. 24 Cnty. of Kern, 2015 WL 6704145, at *6 (E.D. Cal. Nov. 2, 2015) (dismissing plaintiff’s 25 claim for inadequate medical care under Fourteenth Amendment because plaintiff failed 26 to allege he requested medical care to officers who then knowingly denied treatment). 27 d. Qualified Immunity 28 Defendants move for qualified immunity as to Plaintiff’s first Section 1983 cause 1 of action on the grounds that the FAC fails to establish an excessive force claim in 2 violation of the Fourth Amendment and that the FAC does not allege that the defendant 3 officers’ conduct violated a clearly established right. Defs. Mot. at 7-8. “The doctrine of 4 qualified immunity protects government officials ‘from liability for civil damages insofar as 5 their conduct does not violate clearly established statutory or constitutional rights of 6 which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 7 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As described above, the 8 Court finds that Plaintiff has stated an excessive force claim against Officer Roton. The 9 Court declines to rule on the issue of qualified immunity at this pleading stage. See 10 Gomez v. Cnty. of Los Angeles, 2023 WL 3431279, at *3 (C.D. Cal. Mar. 17, 2023) 11 (same). 12 3. State-Law Claims 13 Plaintiff asserts the following state-law claims: (1) battery against Defendants 14 Roton, Aziz, and the City; (2) assault against Defendant Roton, the Doe Officer, and the 15 City; (3) violation of the California Bane Act, Cal. Civ. Code § 52.1, against all 16 Defendants; (4) negligence against all Defendants; and (5) violation of California 17 Government Code § 845.6 against the City and “responsible employees” for failing to 18 summon immediate medical care. FAC ¶¶ 32-42. Plaintiff alleges that the City is 19 vicariously liable for the officer defendants’ battery, assault, violation of the Bane Act, 20 and negligence, and directly liable under the section 845.6 claim. Id. 21 Defendants argue that Plaintiff’s state-law claims are barred by the Government 22 Claims Act. Defs. Mot. at 9-10. Defendants also argue that the FAC fails to state a claim 23 as to all five claims. Id. at 10-13. The Court first addresses the threshold issue of 24 whether Plaintiff’s state-law claims are barred by the Government Claims Act. 25 a. Government Claims Act 26 Defendants contend that Plaintiff’s state-law claims against all defendants are 27 barred because Plaintiff fails to allege compliance with the claims-presentation 28 procedures of the Government Claims Act. Defs. Mot. at 9-10. Plaintiff argues that if 1 dismissal is warranted on this ground, dismissal should be with leave to amend “to clarify 2 compliance, equitable estoppel, or other applicable doctrines.” Pl. Opp’n at 8. Plaintiff 3 also requests that the Court take judicial notice of his claim form submitted to the City, 4 presumably to support an argument that he has satisfied the claims-presentation 5 requirements under the Act, although Plaintiff did not raise this argument in opposition.4 6 (ECF No. 32.) 7 Under the California Government Claims Act, 5 set forth in California Government 8 Code §§ 810 et seq., a plaintiff may not bring a suit for monetary damages against a 9 public employee or entity unless the plaintiff first presented the claim to the California 10 Victim Compensation and Government Claims Board (“Board”), and the Board acted on 11 the claim, or the time for doing so expired. Compliance with this “claim presentation 12 requirement” constitutes an element of a cause of action for damages against a public 13 entity or official. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1244 (2004). Thus, 14 timely presentation of a claim under the Government Claims Act is an element of the 15 cause of action and must be pleaded in the complaint. Id. at 1237, 1240; see also 16 Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d. 1470, 1477 (9th Cir. 1995). The plaintiff 17 must present facts demonstrating compliance, rather than simply conclusions suggesting 18 as much. Shirk v. Vista Unified School Dist., 42 Cal. 4th 201, 209 (2007). Such 19 requirements also apply to state-law claims included in a federal action under Section 20 1983. See Volis v. Housing Auth. of the City of L.A. Emps., 670 F. App'x 543, 544 (9th 21 Cir. 2016); Davis v. Allison, 2023 WL 6796753, at *5 (E.D. Cal. Oct. 13, 2023) 22 (compliance required before suing a state entity or its officers) (citing collected cases), 23
24 4 In Plaintiff’s declaration attached to his request for judicial notice, Plaintiff states that he had misplaced his copy of his submitted claim when he had filed his pleadings. (ECF 25 No. 32 at 3.) 26 5 See Nuveen Mun. High Income Opportunity Fund v. City of Alameda, Cal., 730 F.3d 1111, 1124 (9th Cir. 2013) (“Consistent with the California Supreme Court, we ‘adopt the 27 practice of referring to the claims statutes as the Government Claims Act, to avoid the confusion engendered by the informal short title Tort Claims Act.’”) (quoting City of 28 Stockton v. Superior Court, 42 Cal. 4th 730 (2007)). 1 report and recommendation adopted, 2023 WL 8789296 (E.D. Cal. Dec. 19, 2023). “The 2 fact that a public entity already had notice of potential claims does not excuse a plaintiff's 3 failure to submit the required claim.” Est. of McDaniel v. Cnty. of Kern, 2015 WL 4 7282881, at *3 (E.D. Cal. Nov. 18, 2015); accord City of Stockton v. Superior Court, 42 5 Cal. 4th 730, 738 (2007). 6 To be timely, a claim must be presented to the Board “not later than six months 7 after the accrual of the cause of action.” Cal. Gov’t Code § 911.2. Thereafter, “any suit 8 brought against a public entity” must be commenced no more than six months after the 9 public entity rejects the claim. Cal. Gov’t Code, § 945.6, subd. (a)(1). Federal courts 10 must require compliance with the California Government Claims Act for pendent state- 11 law claims that seek damages against state employees or entities. Willis v. Reddin, 418 12 F.2d 702, 704 (9th Cir. 1969); Mangold, 67 F.3d at 1477. State tort claims included in a 13 federal action, filed pursuant to 42 U.S.C. § 1983, may proceed only if the claims were 14 presented in compliance with the applicable exhaustion requirements. Karim-Panahi v. 15 Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir. 1988); Butler v. Los 16 Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008). 17 Here, the FAC expressly concedes non-compliance with the Government Claims 18 Act. FAC ¶ 13 (“Plaintiff is informed and believes that no formal written claim was 19 presented under Gov. Code §§ 910 et seq. within six months of the incident.”). Thus, 20 because Plaintiff has not pleaded compliance with the Government Claims Act, all of 21 Plaintiff’s state-law claims must be dismissed. See Est. of McDaniel, 2015 WL 7282881, 22 at *4 (E.D. Cal. Nov. 18, 2015) (dismissing claims for negligence, assault, battery, and 23 violation of Bane Act for non-compliance with Government Claims Act); Veramancini v. 24 Cnty. of Orange, 2025 WL 819558, at *11 (C.D. Cal. Jan. 10, 2025) (same); Crain v. 25 State of California, 2025 WL 510368, at *12 (E.D. Cal. Feb. 14, 2025) (holding that 26 plaintiff failed to plead Government Code section 845.6 claim because plaintiff failed to 27 allege facts demonstrating compliance with Government Claims Act), report and 28 recommendation adopted, 2025 WL 3771330 (E.D. Cal. Dec. 31, 2025). 1 In his opposition, Plaintiff requests leave to amend the FAC “to clarify compliance, 2 equitable estoppel, or other applicable doctrines” regarding the claims-presentation 3 requirements of the Government Claims Act. Pl. Opp’n at 8. Plaintiff also submits a 4 request for judicial notice of his claim form submitted to the City. (ECF No. 32.) First, a 5 plaintiff may not amend or supplement his pleading by filing a request for judicial notice. 6 See Cap. Express Lines, Inc. v. JPMorgan Chase Bank, N.A., 2025 WL 43124, at *3 7 (E.D. Cal. Jan. 7, 2025). Second, as described above, the Court declined Plaintiff’s 8 request to take judicial notice because Plaintiff failed to attach the claims form at issue. 9 Finally, even if the Court were to take judicial notice of the fact that Plaintiff submitted a 10 claim to the City of Turlock, Plaintiff’s argument would still fail because Plaintiff hasn’t 11 pled facts that his submitted claim complied with statutory requirements and the fact that 12 Plaintiff submitted a claim is insufficient to allege compliance. See Richardson-Bass v. 13 Fresno City Coll., 2021 WL 242801, at *5 (E.D. Cal. Jan. 25, 2021) (dismissing claims for 14 failure to comply with Government Claims Act because administrative claim lacked 15 information required under statute as to an amount claimed”); Mascorro v. Cnty. of San 16 Diego, 2025 WL 3251602, at *4-5 (S.D. Cal. Nov. 21, 2025) (similarly dismissing claims 17 where administrative claim failed to describe circumstances of claim and plaintiff’s 18 injuries as required under statute); Crain, 2025 WL 510368, at *12 (similarly dismissing 19 claims where administrative claim only alleged general violation of constitutional rights). 20 Thus, the Court finds that Plaintiff’s state-law claims are barred for failure to plead 21 compliance with the Government Claims Act. The Court grants leave to amend so that 22 Plaintiff may, if he can, sufficiently allege facts establishing his compliance. Plaintiff is 23 warned, however, that in addition to the failure to sufficiently plead compliance with the 24 Government Claims Act, plaintiff’s state law claims are generally pled in a conclusory 25 fashion and would be subject to dismissal for failure to state a claim even apart from the 26 Government Claims Act defect. 27 b. California Government Code § 845.6 28 Plaintiff also brings a claim under California Government Code § 845.6 against 1 “City of Turlock . . . and responsible employees” for failure to summon immediate 2 medical care, alleging that “Officers knew or had reason to know Plaintiff needed 3 immediate medical care (obvious dental/facial trauma and pain) and failed to take 4 reasonable action to summon such care, triggering liability under § 845.6.” FAC ¶ 42. 5 Defendants argue Plaintiff fails to state a claim under section 845.6 because the section 6 applies only to “prisoners” as defined in California Government Code section 844, and 7 Plaintiff fails to allege facts showing he was a prisoner. Defs. Mot. at 13. Plaintiff does 8 not dispute that the FAC fails to allege facts indicating his prisoner status, but instead 9 contends that “officers have a constitutional obligation to provide medical care to 10 arrestees injured during apprehension, independent of any prisoner status.” Pl. Opp’n at 11 7. 12 “In order to state a claim under [California Government Code] § 845.6, a prisoner 13 must establish three elements: (1) the public employee knew or had reason to know of 14 the need (2) for immediate medical care, and (3) failed to reasonably summon such 15 care.” Jett, 439 F.3d at 1099; Lawman v. City & Cnty. of San Francisco, 159 F. Supp. 3d 16 1130, 1150 (N.D. Cal. 2016). “By its own terms, section 845.6 only applies to prisoners 17 in custody.” Lawman, 159 F. Supp. 3d at 1150; see also Von Haar v. City of Mountain 18 View, 2011 WL 782242, at *6 (N.D. Cal. Mar. 1, 2011) (“§ 845.6 applies only to ‘an 19 inmate of a prison, jail, or penal or correctional facility.’”) (quoting Cal. Gov't Code § 844 20 (providing that an arrestee “becomes a prisoner, as a matter of law, upon his or her initial 21 entry into a prison, jail, or penal or correctional facility, pursuant to penal processes”)). 22 Here, Plaintiff’s section 845.6 claim fails for three reasons. First, Plaintiff fails to 23 plead necessary compliance with the Government Claims Act, as explained above. 24 Second, Plaintiff fails to allege he was a prisoner as defined under California 25 Government Code section 844, and therefore he lacks standing to bring a claim under 26 section 845.6. “There are no allegations that Plaintiff ever entered into a jail or other 27 correctional facility or that [Plaintiff] underwent booking or any other penal process. 28 Accordingly, Plaintiff was not a prisoner for purposes of the Government Claims Act, and 1 [he] cannot establish liability under § 845.6.” Von Haar, 2011 WL 782242, at *6. Third, 2 Plaintiff makes conclusory allegations and incorporates all prior allegations into his claim. 3 See Twombly, 550 U.S. at 555-57; Gibson, 165 F.4th at 1289. 4 Thus, for the foregoing reasons, Plaintiff has failed to state a claim under 5 California Government Code section 845.6 against Defendants. The Court recommends 6 this claim be dismissed with leave to amend. 7 4. Punitive Damages 8 Defendants also argue that Plaintiff fails to allege facts to support punitive 9 damages. Defs. Mot. at 14. However, “[a] Rule 12(b)(6) motion to dismiss for failure to 10 state a claim is not a proper vehicle to challenge a plaintiff's prayer for punitive damages, 11 because Rule 12(b)(6) only countenances dismissal for failure to state a claim.” Elias v. 12 Navasartian, 2017 WL 1013122, at *4 (E.D. Cal. Feb. 17, 2017) (collecting cases and 13 denying Rule 12(b)(6) motion to dismiss plaintiff’s request for punitive damages as to 14 Section 1983 claims), report and recommendation adopted, 2017 WL 977793 (E.D. Cal. 15 Mar. 13, 2017). Thus, the Court denies Defendants’ motion to the extent Defendants 16 seek to dismiss Plaintiff’s request for punitive damages. 17 C. Leave to Amend 18 Upon dismissal of any claims, the court is to tell a pro se plaintiff of the 19 complaint’s deficiencies and provide an opportunity to cure such defects. Garity v. 20 APWU Nat'l Lab. Org., 828 F.3d 848, 854 (9th Cir. 2016). Leave to amend should be 21 granted if it appears possible that the defects in the complaint could be corrected, 22 especially if a plaintiff is pro se. Lopez, 203 F.3d at 1130-31; Cato v. United States, 70 23 F.3d 1103, 1106 (9th Cir. 1995). However, if, after careful consideration, it is clear that a 24 claim cannot be cured by amendment, the court may dismiss without leave to amend. 25 Cato, 70 F.3d at 1105-06. 26 Here, because it is conceivable that the defects in the FAC can be cured and due 27 to Plaintiff’s pro se status, Plaintiff should be given leave to amend. Plaintiff is granted 28 leave to amend his FAC to the extent he can allege facts that sufficiently plead his 1 claims. The allegations of the second amended complaint must be set forth in 2 sequentially numbered paragraphs, with each paragraph number being one greater than 3 the one before, each paragraph having its own number, and no paragraph number being 4 repeated anywhere in the complaint. Each paragraph should be limited “to a single set of 5 circumstances” where possible. See Fed. R. Civ. P. 10(b). Forms are available to help 6 plaintiff organize his complaint in the proper way. They are available at the Clerk's 7 Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or online at 8 www.uscourts.gov/forms/pro-se-forms. 9 Plaintiff is warned that a formulaic recitation of the elements of a cause of action 10 does not suffice to state a claim. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555- 11 57 (2007); Fed. R. Civ. P. 8. To state a claim on which relief may be granted, a plaintiff 12 must allege enough facts “to state a claim to relief that is plausible on its face.” Twombly, 13 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content 14 that allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged.” Iqbal, 556 U.S. at 678. 16 If Plaintiff elects to file a second amended complaint, it should be titled “Second 17 Amended Complaint” with reference to the appropriate case number. An amended 18 complaint must be complete in itself without reference to any prior pleading. See Loux v. 19 Rhay, 375 F.2d 55, 57 (9th Cir. 1967); E.D. Cal. Local Rule 220. If Plaintiff does not 20 timely file a second amended complaint, this will result in a recommendation that this 21 action be dismissed. Plaintiff is instructed not to file a Second Amended Complaint 22 until after the district judge issues an order on these findings and 23 recommendations. Any amended complaints filed before the district judge rules 24 on these findings and recommendations will be stricken. 25 IV. CONCLUSION 26 In conclusion, IT IS HEREBY ORDERED that: 27 1. Defendant’s Request for Judicial Notice (ECF No. 21-2) is DENIED; and 28 2. Plaintiff’s Request for Judicial Notice (ECF No. 32) is DENIED. 1 Further, based upon the findings above, it is RECOMMENDED: 2 1. Defendant's motion to strike and dismiss (ECF No. 21) be GRANTED in 3 part and DENIED in part as follows: 4 a. Defendants’ motion to strike pursuant to Rule 15(a)(2) be DENIED; and 5 b. Defendants’ motion to dismiss pursuant to Rule 12(b)(6) be GRANTED. 6 2. Plaintiffs First Amended Complaint (ECF No. 33) be DISMISSED without 7 prejudice; and 8 3. Plaintiff be given thirty (30) days from the adoption of these findings and 9 recommendations to file an amended complaint. 10 These findings and recommendations are submitted to the United States District 11 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 12 | 14 days after being served with these findings and recommendations, any party may file 13 | written objections with the Court and serve a copy on all parties. This document should 14 | be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any 15 || reply to the objections shall be served on all parties and filed with the Court within 14 16 | days after service of the objections. Failure to file objections within the specified time 17 || may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 18 | 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 19 20 | Dated: May 12, 2026 CO iy S \U a1 CHI SOO KIM 99 UNITED STATES MAGISTRATE JUDGE 23 || 8, zepe2439.25.mtd 24 25 26 27 28 22