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Che L. Hashim (State Bar No. 238565) LAW OFFICES OF CHE L. HASHIM 861 Bryant Street San Francisco, CA 94103 Telephone: (415) 487-1700 Facsimile: (415) 431-1312 Attorney for Plaintiff LONDELL AUSTIN

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ) Case No.: 2:10-cv-o2891 FCD-DAD LONDELL AUSTIN, ) ) Plaintiff, ) ) vs. ) ) PLAINTIFF LONDELL AUSTINS J. BAUER (Vallejo Police Department Star #586), J. HUFF (Vallejo Police Department ) OPPOSITION TO DEFENDANTS Star #591); individually and in their capacities ) MOTION TO DISMISS. ) as POLICE OFFICERS for the CITY OF ) VALLEJO, ) Date: January 28, 2011 ) Time: 10:00 am ) Dept. 2 Defendants. ) Judge: Frank C. Damrell, Jr. )

INTRODUCTION Defendants J. Bauer and J. Huff seek the dismissal of all causes of action pled against them, on the grounds that (1) the complaint fails to properly name a municipal defendant, (2) Monell liability is not pled, (3) the complaint fails to state with sufficient specificity the act or acts that allegedly violated the plaintiffs Constitutional rights, and (4) the statue of limitations has run with respect to plaintiffs pendant state claims. Plaintiff, by this opposition, seeks only to oppose the motion to the extent it seeks dismissal of the 42 U.S.C. 1983 claims on the basis of insufficient pleading related to plaintiffs 1983 claims. The balance of the motion is unopposed.

Plaintiffs Opposition to Defendants Motion to Dismiss (Rule 12(b)(6) LONDELL AUSTIN vs. J. HUFF and J. BAUER (Vallejo Police Department Officers)

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POINTS AND AUTHORITIES

I. LEGAL STANDARD Under Federal Rule of Civil Procedure 8(a)(2) a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Thus the complaint must give defendants fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic v. Twomby, 550 U.S. 544 (2007). A dismissal under Rule 12(b)(6) may be based either on the lack of a cognizable legal theory, or on the absence of sufficient facts alleged in the complaint under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). However a complaint will survive a motion to dismiss if it contains either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. Buckheit v. Dennis, 713 F.Supp.2d 910 (N.D.Cal., 2010) (quoting Twombly, supra; quoting Car Carriers, Incl. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984). In reviewing a complaint under Rule 12(b)(6), all of the complaints material factual allegations are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). Also, the court must assume that general allegations embrace the necessary and specific facts to support the claim. Smith v. Pacific Prop. And Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004).

II. THE COMPLAINT SUFFICIENTLY PLEADS FACTS IN SUPPORT OF THE 42 U.S.C. 1983 CAUSES OF ACTION Plaintiff, in his Complaint, alleges that officers responded to a call for assistance, told the complainant that they did not have a basis to take law enforcement action against plaintiff, and that when plaintiff made it clear that he would not cooperate with his wifes request

Plaintiffs Opposition to Defendants Motion to Dismiss (Rule 12(b)(6) LONDELL AUSTIN vs. J. HUFF and J. BAUER (Vallejo Police Department Officers)

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to leave, he was Tased without warning by Defendant Huff. Plaintiff alleges that he was detained, arrested, and charged with crimes that were later dismissed. Plaintiff alleges also that each defendant acted in concert with the other Defendants. These factual allegations are sufficient to establish either direct or inferential allegations that meet all of the elements of a claim under 42 U.S.C. 1983, which requires that plaintiff have been (1) deprived of a right secured by the United States Constitution or a Federal law, and (2) the deprivation of rights was affected under color of state law. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). Plaintiff makes clear factual assertions inferring that he did not violate the law in any respect but may have been detained by defendants nevertheless, was subjected to a use of force in absence of provocation, and was subsequently arrested and charged with a crime officers could not have believed he had committed, all while acting under color of law. These allegations support inferences that plaintiff is claiming he was deprived of the right to be free from unreasonable detention, the right to be free from unreasonable use of and/or excessive force, and to be free from arrest without probable cause. Thus, the inferences that naturally flow from the allegations in plaintiffs complaint are sufficient to satisfy the pleading requirement with respect to each element of his cause of action under 42 U.S.C. 1983.

III. SHOULD THE COURT FIND THE ALLEGATIONS IN THE COMPLAINT INSUFFICIENT TO SUSTAIN A CAUSE OF ACTION UNDER 42 U.S.C. 1983, THE COURT SHOULD GRANT PLAINTIFF LEAVE TO AMEND HIS COMPLAINT TO ADD ADDITIONAL SPECIFICITY If a complaint is dismissed for failure to state a claim, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency. Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9 Cir. 1986). The court may not dismiss a complaint without leave to amend unless it is clear that the complaint could not be saved by any amendment. Jackson v. Carey, 353 F.3d 750, 758 (9 Cir. 2003); Eminence Capital, LLC v.

Plaintiffs Opposition to Defendants Motion to Dismiss (Rule 12(b)(6) LONDELL AUSTIN vs. J. HUFF and J. BAUER (Vallejo Police Department Officers)

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Aspeon, Inc., 316 F.3d 1048, 1052 (9 Cir. 2003). Plaintiff is willing and able to provide additional factual or legal specificity with respect to which particular acts violated plaintiffs particular Constitutional rights. Should the court find insufficient specificity in the claims, and allow plaintiff to cure any deficiencies by way of the filing of an amended complaint, plaintiff will allege that (1) plaintiff never obstructed, threatened, assaulted, resisted or otherwise violated the law in his interaction with defendants, (2) the use of the Taser was unprovoked and therefore thoroughly unreasonable, as plaintiff posed to threat to officer safety or to the safety of his wife, (3) plaintiffs arrest was affected in absence of probable cause. IV. CONCLUSION For the foregoing reasons, this court should deny the motion to dismiss plaintiffs claims under 42 U.S.C. 1983, or in the alternative, grant plaintiff leave to amend his complaint to allege with additional specificity, the grounds upon which the claim is based.

Dated this 29 February, 2012

LAW OFFICES OF CHE L. HASHIM /S/ CHE L. HASHIM _________ CHE L. HASHIM 861 Bryant Street San Francisco, CA 94103 415/487-1700 415/431-1312 (fax) che.hashim.esq@gmail.com Attorney for Plaintiff LONDELL AUSTIN

Plaintiffs Opposition to Defendants Motion to Dismiss (Rule 12(b)(6) LONDELL AUSTIN vs. J. HUFF and J. BAUER (Vallejo Police Department Officers)

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