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McCullough v. Clovis Police Dep't

December 2, 2009

DAWN MCCULLOUGH, PLAINTIFF,
v.
CLOVIS POLICE DEPARTMENT, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RE DISMISSAL OF COMPLAINT WITHOUT LEAVE TO AMEND

INTRODUCTION

On November 13, 2009, Plaintiff Dawn McCullough, appearing pro se and proceeding in forma pauperis,*fn1 filed a complaint naming the Clovis Police Department. Plaintiff asserts claims of "police misconduct, police brutality, use of excessive force, unreasonable search, [and] wrongful arrest" in violation of her "1st, 4th, 8th, 9th and 14th" Amendment rights. (Doc. 1.)

DISCUSSION

A. Screening Standard

Pursuant to Title 28 of the United States Code Section 1915(e)(2), the court has reviewed the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question (Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740 (1976)), construe the pro se pleadings liberally in the light most favorable to the Plaintiff (Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)), and resolve all doubts in the Plaintiff's favor (Jenkins v. McKeithen, 395 U.S. 411, 421 (1969)).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While legal conclusions can provide a framework of a complaint, they must be supported by factual allegations. Iqbal, 129 S.Ct. at 1950. While factual allegations are accepted as true, legal conclusion are not. Iqbal, at 1949.

B. Plaintiff's Allegations

Plaintiff's complaint is largely incomprehensible and rambling. She has appended a number of documents to the Complaint as "evidence" of her claims. These documents range from copies of police reports and Greyhound Bus tickets to toxicology reports and photocopies of photographs of her children. (Doc. 1 at 21-65.) Plaintiff has provided a "Statement of Facts" that begins with an arrest in August 2000 and concludes with another arrest in November 2004, eventually resulting in the removal of her children from her home and the children's subsequent placement in the foster care system. (Doc. 1 at 6-18.)

Generally, Plaintiff asserts that she was wrongly arrested for being under the influence in August 2000, and her newborn twins were removed from her custody as a result of the arrest, yet subsequently toxicology reports reveal she "was not under the influence" and she regained sole custody of her children on October 16, 2002. (Doc. 1 at 6.) Plaintiff does not identify any officials involved in this 2000 arrest incident, yet a document appended to Plaintiff's complaint refers to a Fresno Police Department Report No. 00-71786 and references "Reporting Officer M. Peterka." (Doc. 1 at 28.) A toxicology report dated August 28, 2000, reveals measurable levels of cocaine and benzoylecogonine in Plaintiff's blood. (Doc. 1 at 29.) Plaintiff has not named the Fresno Police Department or any of its officers in the instant action. Thus, the Court presumes Plaintiff provided these facts for purposes of providing the Court with background information.

Page seven of Plaintiff's complaint references the Clovis Police Department and "Officer Munro, Officer Kerr, and Officer Moshefri," and, although it is far from clear, the officers were apparently dispatched to the Lexington Square Apartments in order to locate "Kevin Jensen." Apparently the officers approached Plaintiff's apartment in their efforts to locate Mr. Jensen and encountered Plaintiff who advised the officers that Mr. Jensen "was not there, at the time." As a result of this contact with Plaintiff, the officers apparently arrested her "for being under the influance [sic]." (Doc. 1 at 8; see also Doc. 1 at 32-39.) Plaintiff's complaint states that Officer Munro "pulled" her out of the apartment and handcuffed her, and references a "photo of bruises on left arm and bruises on the inside of both arms." (Doc. 1 at 8.)

Plaintiff contends the officers maliciously lied about the condition of her apartment, particularly pertaining to cleanliness and the availability of food, in order to have her children removed from her home. (Doc. 1 at 17-18.)

C. Statute of Limitations

It is apparent from the face of Plaintiff's complaint that any claims she may assert against the Clovis Police Department and/or its ...


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