Elkins

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 5 THE ESTATE OF CECIL ELKINS, JR., CASE NO. 1:13-CV-1483 AWI SAB et al., 7 Plaintiffs ORDER ON DEFENDANT’S MOTION TO DISMISS v. 9 OFFICER HIPOLITO PELAYO., (Doc. No. 209) 10 Defendant 11 12 This case stems from a fatal confrontation between decedent Cecil Elkins, Jr. (“Elkins”) and the last remaining defendant, California Highway Patrol Officer Hipolito Pelayo (“Pelayo”). Plaintiffs are the estate and family members of Elkins, and they allege various claims under 42 U.S.C. § 1983 and California state law. Currently before the Court is Pelayo’s Rule 12(h)(3) motion to dismiss the second, third, fourth, and fifth causes of action by Plaintiff Creasha Elkins (“Creasha”). For the reasons that follow, the motion will be denied. 19 BACKGROUND On November 13, 2012, Elkins was shot and killed by Pelayo during the course of Pelayo’s law enforcement duties. This civil rights lawsuit ensued. The active plaintiffs in this suit are the estate of Elkins,…