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United States District Court

Eastern District of California 

Michael A. Trahan,

Plaintiff, No. Civ. S 04-1371 GEB PAN P

vs. Findings and Recommendations

Stockton Police Dept., et al.,

Defendants.

-oOoPlaintiff is a state prisoner prosecuting a civil rights

action. The complaint alleges defendant police officers

Grauiette and O’Reilly “made contact” with plaintiff while on

patrol, O’Reilly pushed plaintiff to the ground and the car

rolled over plaintiff after Grauiette got out of the car to

assist O’Reilly.

June 22, 2005, defendants moved to dismiss for failure to

state a claim. Fed. R. Civ. P. 12(b)(1). Plaintiff did not

oppose.

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In considering a motion to dismiss pursuant to Fed. R. Civ.

P. 12(b)(6), the court must accept plaintiff’s allegations as

true, read the complaint most favorably to plaintiff, give

plaintiff the benefit of every reasonable inference that appears

from the pleading and argument of the case and dismiss the

complaint only if it is clear that no relief could be granted

under any set of facts that could be proved consistent with the

allegations. Wheeldin v. Wheeler, 373 U.S. 647, 658 (1963);

Retail Clerks International Association, Local 1625, AFL-CIO v.

Schermerhorn, 373 U.S. 746, 754 n.6 (1963); Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984). The court may consider

documents attached to the complaint in evaluating a motion to

dismiss. Parks School of Business, Inc. v. Symington, 51 F.3d

1480, 1484 (9th Cir. 1995).

To state a claim of a Fourth Amendment violation in

connection with the use of force in making an arrest, a plaintiff

must allege the force defendants used was excessive under the

circumstances. See McKenzie v. Lamb, 738 F.2d 1005 (9th Cir.

1984); see also Saucier v. Katz, 533 U.S. 194 (2001) (allegations

that police officer shoved plaintiff, who was protesting the vice

president’s speech at the Presidio, into a van did not overcome a

defense of qualified immunity). The complaint herein fails to

state a claim under the Fourth Amendment. To state a claim on

the ground executive action violated the due process clause, a

plaintiff must allege the behavior of a governmental officer was

so egregious and outrageous as to shock the contemporary 

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conscience. County of Sacramento v. Lewis, 523 U.S. 833 (1998);

Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) (mere negligence

by a state official does not trigger the protections of the

Fourteenth Amendment and thus would not state a claim under §

1983). The pleading fails to state a claim under the due process

clause. 

Defendants’ motion is well taken and the court deems

plaintiff’s failure to oppose it as a concession it has merit. 

Accordingly, the court hereby recommends defendants’ June

22, 2005, motion to dismiss be granted and this action be

dismissed for failure to state a claim upon which relief could be

granted. 

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part.

Dated: February 7, 2006. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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