ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND TO STRIKE

LESLIE E. KOBAYASHI, District Judge.

On October 14, 2016, Defendants Sergeant Munoz and the City of Davis1 ("the City," collectively "Defendants") filed their Motion to Dismiss and to Strike ("Motion"). [Dkt. no. 7.] Plaintiff Lasonja Porter ("Plaintiff") filed her memorandum in opposition on October 28, 2016, and Defendants filed their reply on November 10, 2016. [Dkt. nos. 9, 11.] The Court finds this matter suitable for disposition without a hearing pursuant to L.R. 230(g) of the Local Rules of the United States District Court for the Eastern District of California ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Defendants' Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below. The Motion is GRANTED in all respects, except that this Court DENIES Defendants' request that the dismissal of Count IV be with prejudice.

BACKGROUND

The instant case arises from a probation search that Sergeant Munoz — who Plaintiff had two traumatic previous encounters with — and several other police officers executed at her apartment on February 26, 2016. Her son Cairo was on probation at the time, but only probation officers had conducted his previous probation searches. According to the Complaint, Plaintiff informed the police officers that her shoulder was very tender because of an injury and that her mobility was limited. After Sergeant Munoz and other officers entered the apartment, Plaintiff attempted to go to her bedroom to retrieve her high blood pressure medication because she was feeling overwhelmed by the incident. [Complaint at 3-4.] As she was heading to her bedroom, Sergeant Munoz "grabbed and tugged on her injured left shoulder," causing her to suffer unbearable pain and extreme anxiety. [Id. at 4.]

Sergeant Munoz asked Plaintiff where Cairo was, and she responded that he was not at home. He then asked her which room was Cairo's. Although Plaintiff identified Cairo's bedroom, Sergeant Munoz searched the other bedrooms over Plaintiff's objection before finally searching Cairo's bedroom. While Sergeant Munoz and other officers were searching Cairo's room, Cairo and his grandmother returned home. Officer Munoz abandoned the search of Cairo's room to confront Cairo. He told Cairo that they were looking for a person named Julio. Cairo said that he had not seen Julio in years because the terms of his probation prohibited such contact. Sergeant Munoz and the other officers then left the apartment. Cairo was never restrained while the officers were there, nor did the officers search him. Plaintiff states that the officers did not offer her medical assistance or attempt to obtain medical assistance for her before they left. Plaintiff promptly sought medical attention for her left shoulder. [Id. at 4-5.]

The Complaint alleges the following claims: a 42 U.S.C. § 1983 claim against Sergeant Munoz alleging that his unreasonable use of force violated Plaintiff's Fourteenth Amendment right to substantive due process ("Count I"); a § 1983 claim against Sergeant Munoz alleging that the unreasonable search violated Plaintiff's Fourth Amendment and Fourteenth Amendment rights ("Count II"); a negligence claim against Defendants based on bodily injury, pursuant to California Government Code § 815.2 ("Count III"); a negligence claim against Defendants based on the illegal search, pursuant to § 815.2 ("Count IV"); a negligent infliction of emotional distress ("NIED") claim against Sergeant Munoz ("Count V"); and an intentional infliction of emotional distress ("IIED") claim against Sergeant Munoz ("Count VI"). The Complaint seeks the following relief: general, compensatory, and punitive damages; interest on economic damages; lost earnings; and attorney's fees and costs.

In the instant Motion, Defendants ask this Court to dismiss Counts I, III, IV, and V pursuant to Fed. R. Civ. P. 12(b)(6) and to strike the references to the Fourteenth Amendment in Count II pursuant to Fed. R. Civ. P. 12(f). This Court does not construe the Motion as seeking either the dismissal of the portion of Count II based on the Fourth Amendment or the dismissal of Count VI.

DISCUSSION

I. Counts I and II

Defendants argue that Count I fails to state a claim upon which relief can be granted because an excessive force claim must be brought pursuant to the Fourth Amendment, not the Fourteenth Amendment. Similarly, Defendants argue that this Court should strike the allegations regarding the Fourteenth Amendment in Count II because an unreasonable search claim is properly analyzed under the Fourth Amendment. Plaintiff essentially concedes these arguments, but she argues that this Court should grant her leave to amend to correct the deficiencies in Counts I and II. [Mem. in Opp. at 4.] This Court agrees that Plaintiff is entitled to the opportunity to cure the defects in these claims by amendment. See Rodriguez v. Brown, 1:15-cv-01754-LJO-EPG-PC, 2016 WL 6494705, at *3 (E.D. Cal. Nov. 1, 2016) ("Whether dismissal is with or without prejudice will depend upon whether it is possible for Plaintiff to cure any defects." (citing Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107-08 (9th Cir. 2003) (collecting cases))), report and recommendation adopted, 2016 WL 7104173 (E.D. Cal. Dec. 6, 2016).

This Court therefore GRANTS Defendants' Motion insofar as this Court DISMISSES Count I WITHOUT PREJUDICE and STRIKES the portion of Count II based on the Fourteenth Amendment.

II. Count III

Defendants argue that: Plaintiff has not pled sufficient allegations to support her negligence claim based on bodily injury; and the factual allegations of Count III appear to state a battery claim instead of a negligence claim. This district court has stated:

Stoops v. Sherman, Case No. 1:16-cv-01026-AWI-SAB(PC), 2017 WL 56666, at *4 (E.D. Cal. Jan. 4, 2017). Count III alleges that:

[Complaint at 8 (emphases in original).] Plaintiff also alleges that she has incurred, and will continue to incur, medical expenses and other related expenses, and that her earning capacity has been impaired. Thus, Plaintiff has pled proximate cause and damages.

However, Plaintiff has not sufficiently pled duty and breach of duty. The Complaint alleges that Sergeant Munoz grabbed her injured shoulder even though she "was not the subject of the search and was not posing a threat to the safety of the officers or to the public," and that he and the other officers "gave no verbal warning or instruction prior to the physical contact." [Id.] These allegations are not sufficient to pled that Sergeant Munoz owed Plaintiff a duty of care during the execution of the probation search and that he breached the duty. Further, Count III does not identify the basis for the City's liability, except to allege that Sergeant Munoz "acted within the course and scope of his employment." [Id.]

This Court also agrees with Defendants that, although Plaintiff titled Count III as a negligence claim, Count III's factual allegations may be more consistent with a battery claim. This district court has stated:

Robles v. Agreserves, Inc., 158 F.Supp.3d 952, 985 (E.D. Cal. 2016) (some citations omitted).

For these reasons, this Court CONCLUDES that Count III fails to state a plausible negligence claim against Defendants. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L. Ed. 2d 929 (2007))). This Court therefore GRANTS Defendants' Motion insofar as this Court DISMISSES Count III. The dismissal is WITHOUT PREJUDICE because this Court CONCLUDES that is possible for Plaintiff to cure the defects in Count III by amendment.

III. Count IV

Similar to Count III, Count IV fails to plead duty and breach of duty. This Court therefore CONCLUDES that Count IV fails to state a plausible negligence claim against Defendants.

Defendants argue that this Court should dismiss Count IV with prejudice because the claim essentially alleges that Sergeant Munoz negligently violated Plaintiff's Fourth Amendment right to be free from unreasonable searches, and "[i]t is well-established that negligent acts do not incur constitutional liability." [Reply at 3 (citing Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002); Daniels v. Williams, 474 U.S. 327, 328 (1986)).] This Court disagrees with Defendants' characterization of Count IV. This Court construes Count IV as attempting to state an alternate theory of liability regarding the allegedly illegal search, i.e., even if Sergeant Munoz's actions did not rise to the level of a constitutional violation, they were negligent. This Court therefore rejects Defendants' argument that Plaintiff cannot cure the defects in Count IV by amendment.

Defendants' Motion is GRANTED IN PART AND DENIED IN PART as to Count IV. The Motion is GRANTED insofar as Count IV is DISMISSED, and the Motion is DENIED insofar as the dismissal of Count IV is WITHOUT PREJUDICE.

IV. Count V

Defendants allege that Plaintiff's NIED claim fails to state a plausible claim for relief because: 1) the Complaint does not plead sufficient facts to support a NIED claim; 2) even if Plaintiff has sufficient facts to support an NIED claim against Sergeant Munoz, she has not pled the basis for the City's liability; and 3) Plaintiff's NIED claim is redundant of her negligence claims because she alleges that she suffered physical injury and seeks emotional distress damages as parasitic damages. This Court agrees with Defendants' third argument, and therefore does not need to address Defendants' first and second arguments. This district court has stated:

Morse v. Cty. of Merced, No. 1:16-cv-00142-DAD-SKO, 2016 WL 3254034, at *12 (E.D. Cal. June 13, 2016) (some alterations in Morse) (emphasis added).

Because Plaintiff asserts that she suffered physical injury and emotional distress as a result of the allegedly negligent conduct in this case, this Court CONCLUDES that Plaintiff's independent NIED claim fails to state a plausible claim for relief. Instead of asserting a separate NIED claim, Plaintiff must seek her damages for emotional distress as a component of her damages in her negligence claims. Thus, it is not possible for Plaintiff to cure the defect in her independent NIED claim. This Court GRANTS Defendants' Motion and DISMISSES Count V WITH PREJUDICE. This Court emphasizes that the dismissal is with prejudice insofar as Plaintiff cannot include an independent NIED claim in her amended complaint, but without prejudice to the inclusion of a request for emotional distress damages as part of her negligence claims.

CONCLUSION

On the basis of the foregoing, Defendants' Motion to Dismiss and to Strike, filed October 14, 2016, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED insofar as: Counts I and III are HEREBY DISMISSED WITHOUT PREJUDICE; the allegations regarding the Fourteenth Amendment in Count II are HEREBY STRICKEN; Count IV is HEREBY DISMISSED; and Count V is HEREBY DISMISSED WITH PREJUDICE. The Motion is DENIED as to Defendants' request to dismiss Count IV with prejudice. The dismissal of Count IV is WITHOUT PREJUDICE.

The Court GRANTS Plaintiff leave to file an amended complaint by March 21, 2017. If Plaintiff fails to file an amended complaint by March 21, 2017, this case will proceed on the remaining portions of the original Complaint — the portion of Count II based on the Fourth Amendment and Count VI.

IT IS SO ORDERED.