United States District Court, D. Oregon
REPORT AND RECOMMENDATION
MARK D. CLARKE, Magistrate Judge.
This matter comes before the court on defendant's motion to dismiss for failure to state a claim upon which relief can be granted (#8). Plaintiff filed a response and amended complaint (#9) on November 25, 2013. Oral argument occurred on January 16, 2014. For the reasons discussed below, the court recommends that defendant's motion be GRANTED.
Plaintiff Travis Rodrigues ("plaintiff') filed this action September 9, 2013, alleging a violation of his constitutional right to be free of excessive force and cruel and unusual punishment under 42 U.S.C. § 1983. He also alleges state law claims of negligence and battery against the County and defendants Zornes and Doe, respectively.
The complaint states that defendants Winters, Zornes, and Doe were employees of Jackson County and acting within the scope of employment and under color of state law when plaintiff was removed from his cell some time during the weekend of October 15, 2011. Around that time, Zornes and Doe allegedly battered plaintiff about the head and slammed him headfirst into a wall. Plaintiff suffered a concussion and a black eye.
Defendants now move to dismiss plaintiffs state law negligence claims and § 1983 claims against Jackson County, arguing that plaintiff fails to state a claim upon which relief can be granted. This court has jurisdiction over plaintiffs federal claim pursuant to 28 U.S.C. §§ 1331 and 1343, and over his state law claims pursuant to 28 U.S.C. § 1367.
Under FED. R. CIY. P 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984). In answering this question, the court must assume that the plaintiffs' allegations are true and must draw all reasonable inferences in the plaintiffs' favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). A complaint need not make "detailed factual allegations, " however, "a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). To survive a motion to dismiss under FRCP 12(b)(6), plaintiffs must allege sufficient facts to "raise a right to relief above the speculative level." Id. at 555. That is, plaintiffs must show that their claims are not merely conceivable, but plausible. Id. at 570; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Defendants first argue that the complaint fails to state claim of negligence against Jackson County. The Amended Complaint alleges, in relevant part:
The County was negligent in one of more of the following particulars:
(a) Failing to hire, train and supervise employees regarding transporting and handling detainees safely;
(b) Failing to hire, train and supervise employees regarding reasonable suspicion and probable cause, and unreasonable search and seizure
Am. Compl. 4-5. These conclusory allegations, without more, fail to state a plausible claim of negligence against Jackson County under the Iqbal and Twombly standard. The court finds that plaintiff fails to allege any facts that, taken as true, suggest that Jackson County was negligent in failing to hire, train and supervise employees regarding transporting and handling detainees safely. ...