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Dawn Mccullough v. Fresno Police Department

April 9, 2012

DAWN MCCULLOUGH,
PLAINTIFFS,
v.
FRESNO POLICE DEPARTMENT,
DEFENDANT.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS, FINDING P L AINT I F F S T A TESA COGNIZABLE CLAIM AND RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (ECF No. 7) OBJECTIONS DUE WITHIN THIRTY DAYS

Plaintiff Dawn McCullough ("Plaintiff"), proceeding in forma pauperis, initiated this action by filing a pro se Complaint on December 20, 2010. (ECF No. 1.) The Court screened Plaintiff's initial Complaint on March 25, 2011, and dismissed it with leave to amend. (ECF No. 6.) Plaintiff filed a First Amended Complaint on May 2, 2011. (ECF No. 7.) Plaintiff's First Amended Complaint is now before the Court for screening.

I. SCREENING REQUIREMENT

The in forma pauperis statute provides that "the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). 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 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual allegations are accepted as true, legal conclusion are not. Iqbal, 129 S. Ct. at 1949.

II. FACTUAL ALLEGATIONS

Plaintiff names the following individuals as Defendants: 1) Kevin Yambupah (ID: P1555), 2) Maribel Ramirez (ID: D3038), 3) Miguel Archan (ID: P1444), 4) Eddie Barrious (ID: S5107), 5) Chris Cooper(ID: P827), 6) Gregory Taylor (ID: P991), 7) Alex Robles (ID: S142), 8) Josh Bowling (ID: P1188), 9) Robert Chavez (ID: P1348), 10) See Xiong (ID: D3061), 11) Tami Worden (ID: D3081), 12) Mayiyen Yang (ID: D3024), 13) Kaylie Rodriguez (ID: D3080), 14) Jodi Garland (ID: D3076), 15) Lorrie Emerson (ID: D3023), 16) Aisha Jones (ID: P1311), 17) Angie Landin (ID: D3037). Plaintiff alleges that as a result of Defendants' violations of her rights under the First, Fourth, and Fourteenth Amendments she was injured, and subjected to pain, suffering, and emotional distress.

Plaintiff alleges as follows:

On December 9, 2008, at 11:15 p.m, Plaintiff was involved in an argument with her brother, David Webster. (Am. Compl. at 3.) Plaintiff then went to take a bath. (Id.) Defendant Yambupah kicked the bathroom door open. (Id.) Plaintiff told Defendant Yambupah that she was naked, and would get out of the bath, put on clothes, and then talk to him. (Id.) Defendant Yambupah refused to let her do this, and instead took Plaintiff's left arm and pulled her out of the bath. (Id.) Plaintiff fell on the floor. (Id.) Defendant Yambupah pulled Plaintiff into the living room in front of the open front door. (Id.) At this point, Plaintiff was handcuffed. (Id.) Plaintiff continued to ask for clothes. (Id.) Defendants M. Ramirez and Archan were also inside the apartment. (ECF No. 7-1.) Defendants Borrows, Cooper, Taylor, Robles, Yang, Jones, K. Rodriguez, Garland, Landin, Bowling, Chavez, Xiong, Worden, and Emerson were standing outside. (Id.) Plaintiff was never arrested or given a court date. (Am. Compl. at 4.) She never had charges filed against her. (Id. at 4.)

Plaintiff asks for $2.7 million for pain and suffering, as well as for mental distress.

III. ANALYSIS

A. Introduction

As Plaintiff was previously informed in the Court's original screening order (ECF No. 6 at 4), the Court will construe her claims as though brought pursuant to 42 U.S.C. § 1983.

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To state a claim under ยง 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was ...


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