M.T. et al v. Fresno et al

Filing 46

ORDER signed by District Judge John A. Mendez on 9/16/2016 ORERING 38 Defendant City of Fresno's Motion for Dismissal for Failure to Comply with the Court's 5/19/2016 Order and Failure to Participate in Discovery is GRANTED; Defendant's request for costs in the amount of $1,260.12 is GRANTED; and Defendant's request for attorneys' fees is DENIED.(Reader, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

P.Y.M.T., a minor, by and
through her guardian ad litem
DEIBI ONTIVEROS, an
individual and as Successor
in Interest to decedent,
Miguel Moreno Torrez; MARIA
CARRILLO, an individual and
Successor in Interest to
decedent, Miguel Moreno
Torrez,

19
20

1:15-cv-00710-JAM-BAM

ORDER GRANTING DEFENDANT’S
MOTION FOR DISMISSAL AND
GRANTING IN PART AND DENYING IN
PART DEFENDANT’S REQUEST FOR
MONETARY SANCTIONS FOR FAILURE
TO COMPLY WITH THE COURT’S MAY
19, 2016 ORDER AND FAILURE TO
PARTICIPATE IN DISCOVERY

Plaintiffs,

17
18

No.

v.
CITY OF FRESNO, THE FRESNO
POLICE DEPARTMENT; and
DEFENDANT OFFICERS DOES 110,

21
Defendant.
22
23

Under the Court’s inherent and statutory authority, including

24

but not limited to the Court’s authority under the applicable

25

Federal Rules of Civil Procedure and the United States District

26

Court, Eastern District of California Local Rules; and after

27

due consideration of all of the relevant pleadings, papers, and

28

records in this action,
1

1

IT IS HEREBY ORDERED that:

2
3

Defendant City of Fresno's Motion for Dismissal for Failure

4

to Comply with the Court's May 19, 2016 Order and Failure to

5

Participate in Discovery is GRANTED. 1

6

dismisses with prejudice and without leave to amend all of

7

Plaintiffs’ P.Y.M.T., by and through her guardian ad litem DEIBI

8

ONTIVEROS, MIGUEL MORENO TORREZ, and MARIA CARRILLO

9

(“Plaintiffs”)claims in this action, including:

10

1.

The Court hereby

Dismissal with prejudice of the claim for Excessive

11

Force against decedent in violation of the Fourth Amendment to

12

the U.S. Constitution under 42 U.S.C. § 1983 by Plaintiffs

13

against Defendant [First Cause of Action];

14

2.

Dismissal with prejudice of the claim for Negligence by

15

City in Ratification of Reports & Negligence by City in

16

Hiring/Supervision, resulting in deprivation of Plaintiffs’ Due

17

Process rights under Cal. Gov. Code § 815.2 by Plaintiffs against

18

Defendant [Second Cause of Action];

19

3.

Dismissal with prejudice of the claim for Intentional

20

Infliction of Emotional Distress (IIED) upon decedent by

21

Plaintiffs against Defendant [Third Cause of Action];
4.

22

Dismissal with prejudice of the claim for Negligent

23

Infliction of Emotional Distress (NIED) upon Plaintiffs by Doe

24

Defendant Officers 1-10 under California law by Plaintiffs

25

against Defendant [Fourth Cause of Action];

26
27
28

1

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for September 20, 2016.
2

1

5.

Dismissal with prejudice of the claim for Assault upon

2

decedent under California law by Plaintiffs against Defendant

3

[Fifth Cause of Action];

4

6.

Dismissal with prejudice of the claim for Battery upon

5

decedent under California law by Plaintiffs against Defendant

6

[Sixth Cause of Action];

7

7.

Dismissal with prejudice of the claim for Negligent

8

Medical Care to Prisoner (decedent) under Cal. Gov. Code § 845.6

9

by Plaintiffs against Defendant [Seventh Cause of Action];

10

8.

Dismissal with prejudice of the claim for Violation of

11

the Bane Act under Cal. Civ. Code § 52.1 by Plaintiffs against

12

Defendant [Eighth Cause of Action];

13

9.

Dismissal with prejudice of the claim for Wrongful

14

Death under Cal. Code Civ. Proc. § 377.60 by Plaintiffs against

15

Defendant [Ninth Cause of Action]; and

16

10.

Defendant’s request for costs in the amount of

17

$1,260.12 is GRANTED. Defendant’s request for attorneys’ fees is

18

DENIED.

19

in support of their request.

20

unable to evaluate the reasonableness of Defendant’s attorneys’

21

fees request.

22

Defendant has failed to provide detailed billing records
Without such evidence, the Court is

IT IS SO ORDERED.

23
24

Dated: September 16, 2016

25
26
27
28
3