McCullough v. Fresno Police Department

Filing 17

ORDER Adopting FINDINGS AND RECOMMENDATIONS In Part And Dismissing Certain Claims And Defendants (ECF No. 10 ), signed by Chief Judge Anthony W. Ishii on 7/10/2012. Defendants Borrows, Cooper, Taylor, Robles, Yang, Jones, K. Rodriguez, Garland, Landin, Bowling, Chavez, Xiong, Worden, Barrious, and Emerson are dismissed with prejudice.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAWN McCULLOUGH,

CASE NO.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN PART AND
DISMISSING CERTAIN CLAIMS AND
DEFENDANTS

Plaintiffs,
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1:10-cv-2295-AWI-MJS

v.
(ECF No. 10)

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FRESNO POLICE DEPARTMENT,

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Defendant.
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Plaintiff Dawn McCullough (“Plaintiff”) initiated this action by filing a pro se Complaint
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on December 20, 2010, and is proceeding in forma pauperis. (ECF No. 1.) The matter was
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referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule
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302.
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On April 9, 2012, the Magistrate Judge filed a Findings and Recommendations,
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recommending dismissal of certain of Plaintiff’s claims and Defendants. (ECF No. 10.) Plaintiff
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has filed objections. (ECF No. 16.) Plaintiff objects to the dismissal of Defendants M. Ramirez,
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Archan, Borrows, Cooper, Taylor, Robles, Yang, Jones, K. Rodriguez, Garland, Landin, Bowling,
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Chavez, Xiong, Worden, Barrious, and Emerson because she argues that through the course of
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discovery she will find information linking these Defendants to her claims. (Id.)
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 305, this
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Court has conducted a de novo review of this case. After reviewing Plaintiff’s objections, the
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Court finds that they have some merit. With the additional facts included in the objections it is
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possible Plaintiff could state a cognizable Fourth Amendment claim against Defendants M.

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Ramirez and Archan after additional information is gathered during the discovery phase of this

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matter. However even with the additional facts included in Plaintiff’s opposition, it does not

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appear that Plaintiff could state a cognizable claim against Defendants Borrows, Cooper, Taylor,

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Robles, Yang, Jones, K. Rodriguez, Garland, Landin, Bowling, Chavez, Xiong, Worden, Barrious,

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and Emerson.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendations, filed April 9, 2012, are adopted in part;

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2.

Plaintiff is allowed to proceed on her Fourth Amendment claim against Defendant

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Yambupa;
3.

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Plaintiff’s Fourth Amendment claim against Defendants Ramirez and Archan are
dismissed without prejudice;

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Plaintiff’s claims against Defendants Borrows, Cooper, Taylor, Robles, Yang,

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Jones, K. Rodriguez, Garland, Landin, Bowling, Chavez, Xiong, Worden, Barrious,

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and Emerson are dismissed with prejudice;

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Defendants Ramirez and Archan are dismissed without prejudice;

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6.

Defendants Borrows, Cooper, Taylor, Robles, Yang, Jones, K. Rodriguez, Garland,

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Landin, Bowling, Chavez, Xiong, Worden, Barrious, and Emerson are dismissed

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with prejudice;

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5.

Plaintiff’s First Amendment claim is dismissed with prejudice; and

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Plaintiff’s Fourteenth Amendment claim is dismissed with prejudice.

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IT IS SO ORDERED.

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Dated:
0m8i78

July 10, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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