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Cherrie Hazlett and Tony Hazlett v. Terry Dean

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 7, 2012

CHERRIE HAZLETT AND TONY HAZLETT, PLAINTIFFS,
v.
TERRY DEAN, CHRISTOPHER VON KLEIST, JASON BRAMSON, CHRIS BOYLES, KELLY HAIGHT, STEVEN HISCOCK, TIM RYAN, S.J. JOHNSON, J.S. SOKSODA, Z.L. LOPETEGUY, DEFENDANTS.

ORDER RE: MOTIONS TO DISMISS

This matter is presently before the court on defendants' motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In response to defendants' arguments that plaintiffs' claims are barred by the two year statute of limitations in Section 335.1 of the California Code of Civil Procedure, plaintiffs now take the position that their § 1983 claim is based on violations of plaintiffs' Fourteenth Amendment substantive due process rights in connection with the prosecution of the criminal charges against them, rather than on violations of their Fourth Amendment rights in connection with their arrest and the search of their residence as alleged in the complaint.

The court expresses no opinion herein as to whether on the facts alleged in their complaint plaintiffs can state a § 1983 claim based on a substantive or procedural due process violation or whether such a claim would be barred by the statute of limitations. As the complaint in its present form does not appear to present such a claim, the court will give plaintiffs leave, as requested, to amend their complaint to do so.

IT IS THEREFORE ORDERED THAT the school defendants' and police defendants' motions to dismiss be, and the same hereby are, GRANTED.

Plaintiffs have thirty days from the date of this Order to file an amended complaint if they can do so consistent with this Order.

20121107

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