Ramirez v. Bakersfield Police Dept., et al.

Filing 27

ORDER DISMISSING Certain Claims; ORDER TERMINATING Defendants' 12 Motion to Dismiss as Moot, signed by Magistrate Judge Jennifer L. Thurston on 12/1/2014. Defendant Bakersfield Police Department terminated. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTONIO RAMIREZ, JR.,
Plaintiff,

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v.
BAKERSFIELD POLICE DEPT. et al.,
Defendants.

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Case No.: 1:14-cv-00978 - JLT
ORDER DISMISSING CERTAIN CLAIMS
ORDER TERMINATING DEFENDANTS’
MOTION TO DISMISS AS MOOT

Previously, the Court screened Plaintiff’s complaint for civil rights violations arising under 42

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U.S.C. § 1983 and determined Plaintiff stated a cognizable claim for excessive force in violation of the

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Fourteenth Amendment against Officers Petris and Roberts. (Doc. 5.) However, Plaintiff failed to

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state a cognizable claim for a violation of the Fifth Amendment or a violation of equal protection

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under the Fourteenth Amendment. (Id. at 4-6.) Further, Plaintiff failed to state a claim against the

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Bakersfield Police Department, because Plaintiff failed to set forth any factual allegations to suggest

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that an unconstitutional custom or policy caused his injuries. (Id. at 7.)

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After the Court issued its order explaining the deficiencies of Plaintiff’s complaint, Plaintiff

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notified the Court of his willingness to proceed only on the claim found cognizable. (Doc. 7.)

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Accordingly, the Court authorized service of the complaint to defendants Petris and Roberts. (Doc. 8.)

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Because the action was not assigned to a District Judge, Plaintiff’s claims were not dismissed by the

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Court. Now, however, all parties have consented to the jurisdiction of the Magistrate Judge pursuant
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to 28 U.S.C. § 636(c)(1). (Docs. 19-20, 25-26.) Accordingly, IT IS HEREBY ORDERED:

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1.

Plaintiff’s claim for a violation of the Fifth Amendment is DISMISSED;

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2.

Plaintiff’s claim for a violation of his right to equal protection under the Fourteenth
Amendment is DISMISSED;

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3.

The Bakersfield Police Department is DISMISSED as a defendant;

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4.

The action SHALL proceed only on Plaintiff’s claim for excessive force in violation of
the Fourteenth Amendment; and

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5.

Defendants’ motion to dismiss1 (Doc. 12) is terminated as MOOT.

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IT IS SO ORDERED.
Dated:

December 1, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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Defendants assert that Plaintiff “fails to allege a statutory mechanism to allege a violation of his Constitutional
right.” (Doc. 12.) However, on the face of the complaint, Plaintiff indicates that his complaint is filed pursuant to the
“Civil Rights Act 42 U.S.C. § 1983.” (Doc. 1 at 1.) Because the Court addressed the deficiencies of Plaintiff’s complaint
previously, and Plaintiff agreed to abandon the challenged claims, Defendants’ motion is moot.

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