ORDER FOR PARTIAL DISMISSAL OF CLAIMS AND LIMITED ADDITION OF CLAIMS BY CONSTRUCTIVE AMENDMENT

JOHN A. MENDEZ, District Judge.

PURSUANT TO THE STIPULATION OF THE PARTIES ("Stipulation for Partial Dismissal of Claims and Limited Addition of Claims by Constructive Amendment"), and pursuant to the Court's inherent and statutory authority, including but not limited to the Court's authority under the applicable Federal Rules of Civil Procedure and the United States District Court, Eastern District of California Local Rules; after due consideration of all of the relevant pleadings, papers, and records in this action; and upon such other evidence or argument as was presented to the Court; Good Cause appearing therefor, and in furtherance of the interests of justice,

IT IS HEREBY ORDERED that:

ORDER FOR DISMISSAL IN PART OF PLAINTIFFS' CLAIMS.

1. The Court hereby dismisses with prejudice from plaintiffs' First Cause of Action ("Count One": a claim for Excessive Force brought pursuant to 42 U.S.C. § 1983): (a) plaintiff DEIBI ONTIVEROS; (b) plaintiff MARIA CARRILLO; and (c) defendant CITY OF FRESNO (erroneously named as two parties, the CITY OF FRESNO and FRESNO POLICE DEPARTMENT).

2. The Court hereby dismisses with prejudice plaintiffs' Second Cause of Action ("Count Two": a claim for Negligence in reporting/supervision and hiring/retention by the City brought under California law) in its entirety — and as to all parties.

3. The Court hereby dismisses with prejudice from plaintiffs' Third Cause of Action ("Count Three": a claim for Intentional Infliction of Emotional Distress brought under California law): (a) plaintiff DEIBI ONTIVEROS; (b) plaintiff MARIA CARRILLO; and (c) defendant CITY OF FRESNO (erroneously named as two parties, the CITY OF FRESNO and FRESNO POLICE DEPARTMENT).

4. The Court hereby dismisses with prejudice plaintiffs' Fourth Cause of Action ("Count Four": a claim for Negligent Infliction of Emotional Distress brought under California law) in its entirety — and as to all parties.

5. The Court hereby dismisses with prejudice from plaintiffs' Fifth Cause of Action ("Count Five": a claim for Assault brought under California law): (a) plaintiff DEIBI ONTIVEROS; (b) plaintiff MARIA CARRILLO; and (c) defendant CITY OF FRESNO (erroneously named as two parties, the CITY OF FRESNO and FRESNO POLICE DEPARTMENT).

6. The Court hereby dismisses with prejudice from plaintiffs' Sixth Cause of Action ("Count Six": a claim for Battery brought under California law): (a) plaintiff DEIBI ONTIVEROS; and (b) plaintiff MARIA CARRILLO.

7. The Court hereby dismisses with prejudice plaintiffs' Seventh Cause of Action ("Count Seven": a claim for Negligent Medical Care to Prisoner brought under California law) in its entirety — and as to all parties.

8. The Court hereby dismisses with prejudice plaintiffs' Eighth Cause of Action ("Count Eight": a claim for Violation of the Bane Act brought under California law) in its entirety — and as to all parties.

9. The Court hereby dismisses with prejudice from plaintiffs' Ninth Cause of Action ("Count Nine": a claim for Wrongful Death brought under California law): (a) plaintiff DEIBI ONTIVEROS; (b) plaintiff MARIA CARRILLO; and (c) defendant CITY OF FRESNO (erroneously named as two parties, the CITY OF FRESNO and FRESNO POLICE DEPARTMENT).

10. Nothing in the parties' Stipulation or this Order shall be construed as any dismissal of defendant CITY OF FRESNO as a party to this action.

ORDER FOR CONSTRUCTIVE AMENDMENT OF COMPLAINT.

11. The Court hereby further Orders that plaintiffs' operative Complaint for Damages [Dkt. Doc. 1] shall be deemed to be amended by this Order so as to add: a Tenth Cause of Action — a claim for Deprivation of Familial Relations by Excessive Force Resulting in Wrongful Death, pursuant to the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution and 42 U.S.C. § 1983, by plaintiff P.Y.M.T.; plaintiff MARIA CARRILLO; and plaintiff ANTONIO MORENO against DEFENDANT OFFICERS DOES 1-10 (which may also be enumerated as plaintiffs' Count Ten).

12. The Court hereby further Orders that plaintiffs' operative Complaint for Damages [Dkt. Doc. 1] shall be deemed to be amended by this Order so as to add: an Eleventh Cause of Action — a claim for Unconstitutional Denial of Adequate Medical Care to decedent, pursuant to 42 U.S.C. § 1983, by plaintiff P.Y.M.T. (on behalf of decedent) against DEFENDANT OFFICERS DOES 1-10 (which may also be enumerated as plaintiffs' Count Eleven).

13. Nothing in the parties' Stipulation or this Order shall be construed as any agreement or leave for Plaintiffs (or any plaintiff) to file any amended Complaint in this action, or for leave to amend to add any additional claims or causes of action other than those specified herein above.

14. Except as specifically stated herein above, nothing in the parties' Stipulation or this Order shall be construed as dismissing or modifying any other claims or causes of action brought by any other plaintiffs named in the most recent operative Complaint on file in this action prior to the filing date of this Stipulation.

15. Nothing in the parties' Stipulation or this Order shall be construed so as to prejudice (or favor) any future motion by Plaintiffs for leave to amend the operative Complaint.

ORDER RE OPERATIVE CLAIMS RESULTING FROM AMENDMENT

16. In light of the foregoing provisions of this Order, the Court hereby finds and determines that plaintiffs' operative claims in this action (to date) are solely as follows:

17. Except for those claims and parties specifically listed in the foregoing paragraph, and except for defendant CITY OF FRESNO (see ¶ 10, supra), all other claims made in this action, and all other parties to this action, are hereby dismissed with prejudice.

18. The provisions of the parties' Stipulation and this Order shall be in effect until further Order of the Court.

IT IS SO ORDERED.