Denman v. City of Tracy et al
Filing
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ORDER signed by Judge Garland E. Burrell, Jr on 11/18/11 ORDERING that Plaintiff is GRANTED fourteen (14) days from the date on which this order is filed to file an amended complaint addressing the deficiencies of the § 1983 claim. Further, Plaintiff is notified his § 1983 claim for municipal liability may be dismissed with prejudice under FRCP 41(b) if he does not file an amended complaint within this prescribed time period.(Mena-Sanchez, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BRYAN DENMAN,
Plaintiff,
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v.
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CITY OF TRACY, DOES 1-20,
inclusive,
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Defendants.
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2:11-cv-00310-GEB-JFM
ORDER
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Defendant
moves
for
dismissal
of
Plaintiff’s
municipal
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liability claim under Federal Rule of Civil Procedure 12(b)(6). This
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claim is alleged under 42 U.S.C. § 1983, and is premised on Plaintiff’s
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allegations that his Fourth Amendment rights were violated by police
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officers employed by Defendant. Defendant argues this claim should be
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dismissed, because it “contains no facts . . . show[ing] a plausible
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§ 1983 claim for relief against [Defendant] under any theory” of
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municipal liability. (Def.’s Mot. to Dismiss 7:18-8:18.) Plaintiff
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opposes the motion, arguing that he “adequately pled Monell liability,”
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since “[i]t is certainly plausible that the type of intentional and
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deliberate excessive force alleged in this matter was a direct and
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proximate result of [Defendant’s] failure to properly train, discipline,
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supervise or have written policies in place to prevent such conduct.”
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(Pl.’s Opp’n 5:8-23.)
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However, Plaintiff “tenders [only] ‘naked assertions’ devoid
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of ‘further factual enhancement’” in this claim. Ashcroft v. Iqbal, 129
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S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 555, 557 (2007)). The “nonclusory ‘factual content’ [of this
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claim], and reasonable inferences from that content, [are not] plausibly
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suggestive of a claim” that Defendant “was on actual or constructive
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notice that its omission[s] [in training, supervision, and discipline]
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would likely result in a constitutional violation.” Moss v. U.S. Secret
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Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal citation omitted);
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Gibson v. Cnty of Washoe, Nev., 290 F.3d 1175, 1186 (9th Cir. 2002).
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Therefore, Defendant’s dismissal motion is granted.
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Plaintiff is granted fourteen (14) days from the date on which
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this
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deficiencies of the § 1983 claim. Further, Plaintiff is notified his §
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1983 claim for municipal liability may be dismissed with prejudice under
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Federal Rule of Civil Procedure 41(b) if he does not file an amended
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complaint within this prescribed time period.
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Dated:
order
is
filed
to
file
an
amended
complaint
addressing
November 18, 2011
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GARLAND E. BURRELL, JR.
United States District Judge
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the
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