The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION TO DISMISS
Before the court is a motion to dismiss by defendants City of Fresno Police Department, Officer Christopher Long and Officer Jeremy DeMoss (collectively "Defendants"). The motion is directed at the claims asserted by pro se plaintiffs Robert Morris and Michelle Morris in their Fifth Amended Complaint ("FAC"). Plaintiffs, who are proceeding in forma pauperis, oppose the motion. The following background facts are taken from the FAC (Doc. 65) and other documents on file in this case.
Plaintiffs filed their initial complaint on September 23, 2008, and applied for and were granted the right to proceed in forma pauperis ("IFP"). Given their IFP status, the magistrate judge screened their initial complaint. See 28 U.S.C. § 1915(e)(2). The initial complaint contained claims for "False Arrest and Imprisonment," "Police Brutality," "Violation of Right to Due Process of Law," "Conspiracy to Deprive Equal Protection of Laws," "Physical and Emotional Problems," and "Officer Misconduct." The magistrate judge dismissed the complaint with leave to amend. (Doc. 15.)
Plaintiffs filed a first amended complaint which the magistrate judge screened and dismissed, again with leave to amend. (Doc. 29). Plaintiffs filed a second amended complaint, it was screened, and the magistrate judge issued findings and recommendations which recommended that certain claims proceed while others, along with a named defendant (Brendan Rhames), be dismissed. (Doc. 31).
In response to the magistrate judge's findings and recommendations, Plaintiffs filed a document entitled "Objection To Magistrate Judges Findings and Recommendation With Request For Amendment To Complaint." In this submission Plaintiffs agreed to voluntarily dismiss one claim, i.e., the false arrest and imprisonment claim. Plaintiffs also requested to add a claim for "municipal liability."
In an order adopting the magistrate judge's findings and recommendations, Plaintiffs' request to add a claim for municipal liability was construed as a motion to amend the complaint. This motion to amend was referred to the magistrate judge for consideration. In light of Plaintiffs' voluntarily dismissal of the false arrest and imprisonment claim, that claim was dismissed without prejudice and the magistrate judge's findings and recommendations were otherwise adopted. (Doc. 35 at 2).
Subsequently, the magistrate judge granted Plaintiffs' motion to amend to add the municipal liability claim and Plaintiffs' Third Amended Complaint (TAC) followed. (Doc. 36). The magistrate judge reviewed the TAC and concluded, in an order dated August 4, 2009, that Plaintiffs appeared to state cognizable claims for relief. (Doc. 38). Among other things, that order stated "service is appropriate" for Defendant "Fresno Police Department."
Defendants filed a motion to dismiss the TAC on September 1, 2009. (Doc. 42). Plaintiffs filed a Fourth Amended Complaint on December 30, 2009. (Doc. 60).*fn1 Defendants' motion to dismiss the TAC was granted in part on January 27, 2010. (Doc. 63).
Plaintiffs filed a Fifth Amended Complaint ("FAC") on February 18, 2010. (Doc. 65). Defendants filed a motion to dismiss the FAC on March 10, 2010. (Doc. 66). Plaintiffs' filed opposition to the motion to dismiss on April 28, 2010. (Doc. 71).
Plaintiffs' FAC names three defendants: the City of Fresno, Officer Christopher Long, and Officer Jeremy DeMoss. The opening paragraph of the FAC reads:
Plaintiffs Mr. & Mrs. Morris claim that their Constitutional [sic] protected Civil Rights were violated. The Plaintiffs claim action under 42 U.S.C. § 1983. (FAC at 1). The remainder of the FAC is organized into two sections: one section contains "Allegations by Plaintiff Mrs. Morris" followed by her request for relief, and another section contains "Allegations by Plaintiff Mr. Morris" followed by his request for relief. (FAC at 1).
In her allegations, Mrs. Morris asserts a claim for excessive force against officer DeMoss. In his allegations, Mr. Morris asserts a claim for excessive force against officer Long and a "municipal liability" claim against the City of ...