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Acosta v. Tourner

July 15, 2010

CHRISTIAN ACOSTA, ET AL., PLAINTIFFS,
v.
JAMES TOURNER, ET AL., DEFENDANTS.



ORDER DENYING DEFENDANT CITY OF FRESNO'S MOTION TO DISMISS (Document #10)

BACKGROUND

On September 1, 2009, Plaintiffs filed a complaint for damages pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendants unreasonably seized them in violation of the Fourth and Fourteenth Amendments of the United States Constitution.

Defendant City of Fresno was served with the complaint on April 5, 2010, 216 days after the complaint was filed. Additional defendants were served in May of 2010.

On April 26, 2010, Defendant City of Fresno filed a motion to dismiss pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. Defendants contend that the complaint is subject to dismissal because Defendant City of Fresno was not served within the 120 day time limit required by Rule 4(m) of the Federal Rules of Civil Procedure.

On May 10, 2010, Plaintiffs filed an opposition to Defendant City of Fresno's motion to dismiss. Plaintiffs contend that they have good cause for their failure to serve the complaint within 120 days.

On May 13, 2010, Defendant City of Fresno filed a reply.

FACTS

A. Facts Alleged in the Complaint

The complaint alleges that Plaintiffs are residents of the County of Sacramento. The complaint alleges that at the time of the incident they were employed by Environmental Development Group, a company based out of Sacramento, California. The complaint alleges that Plaintiffs were in Fresno as a work crew, and they were doing work at local Fresno Walmart stores. The complaint alleges that Plaintiffs were staying at the Econo Lodge Motel while working in Fresno.

The complaint alleges that on March 5, 2008, at approximately 11:30 p.m., Defendant James Tourner was playing pool with his girlfriend at the Diamond Billiards, in Fresno, California. The complaint alleges that Defendant Tourner was attacked by a Hispanic Male. The Hispanic male was accompanied by four other Hispanic males. After the altercation, the Hispanic males left Diamond Billiards. The complaint alleges that Defendant Police officers D. Medina and E. Ovalle responded to the scene at Diamond Billiards, and then they went looking for suspects.

The complaint alleges that on the night of March 5, 2008, Plaintiffs walked from the Econo Lodge Motel to an establishment called "The Other Bar" to watch an NBA basketball game. The complaint alleges that while Plaintiffs were walking back to the motel, Plaintiffs were stopped by Defendants Median and Ovalle. Defendants Median and Ovalle called Defendant Tourner to the location. The complaint alleges that Defendant Tourner mis-identified Plaintiff Sigala as the person who hit him and the other four Plaintiffs as the other four Hispanics who were at the Diamond Billiards.

The complaint alleges Defendants Median and Ovalle failed to investigate further as to whether Plaintiffs had been at the Diamond Billiards. The complaint alleges Plaintiffs informed Defendants Medina and Ovalle that they had been at "The Other Bar" watching the basketball game. The complaint alleges Defendants Median and Ovalle failed to investigate whether Plaintiffs had been at "The Other Bar." The complaint alleges that had Defendants Medina and Ovalle properly investigated Plaintiffs' statements, they would have discovered that Plaintiffs had an alibi. The complaint alleges that witnesses at Diamond Billiards stated the actual attackers were younger than Plaintiffs and Plaintiff's clothing did not match the clothing worn by the actual attackers.

The complaint alleges that because Defendants Median and Ovalle failed to properly investigate, Plaintiffs were wrongly arrested, taken into custody, and charged with Assault with a Deadly Weapon. The complaint alleges that at the time Defendants arrested Plaintiffs, they had no ...


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