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EL v. OPDYKE

June 22, 2004.

MIZRAIM MOHAMMED EL, Plaintiff,
v.
RICHMOND POLICE OFFICER OPDYKE #963 et al., Defendants.



The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; DENYING PLAINTIFF'S MOTION TO STRIKE AND TO DISQUALIFY DEFENDANT'S ATTORNEY; VACATING HEARING
Before the Court is the motion to dismiss, filed electronically May 25, 2004 and on paper May 28, 2004, by defendant Albany Police Officer Odmo No. M 3883 ("Officer Odmo"). In response to Officer Odmo's motion, plaintiff Mizraim Mohammed El ("El") filed, on June 3, 2004, a document entitled "Motion to Strike Defendant's Alleged Motion to Dismiss [And] Motion to Disqualify Defendant's Alleged Attorney." The Court, having considered the papers filed in support of and in opposition to the motions, finds the matters appropriate for decision without oral argument, see Civil L.R. 7-1(b), and hereby VACATES the July 2, 2004 hearing on the motions. For the reasons set forth below, the Court hereby GRANTS the motion to dismiss, and DENIES the motion to strike and to disqualify defendant's counsel. DISCUSSION

Although El's complaint is not a model of clarity, it is apparent that El is challenging the constitutionality of two traffic citations, issued to El on two separate occasions, on the ground that El has the constitutional right to drive on public highways without a driver's license.

  El alleges that on March 17, 2004, Officer Odmo issued a traffic citation to El for violation of California Vehicle Code § 12500(a). (See First Amended Complaint ("FAC") at 3 ¶ 2.) Section 12500(a) provides: "No person shall drive a motor vehicle upon a highway, unless the person then holds a valid driver's license issued under [the California Vehicle] code, except those persons who are expressly exempted under [the] code." See Cal. Veh. Code § 12500(a). El acknowledges that he does not have an "active" driver's license, but contends that "if a person is not engaging in commercial activity on the highways and byways . . . that person does not need a Driver's License to Travel in his private property." (See FAC at 3 ¶ 2 (emphasis in original).) El also alleges that Officer Odmo "never read Plaintiff his Miranda Rights and did not allow Plaintiff to access the private property (the auto in question)." (See id. at 3 ¶ 2.)

  El further alleges that on March 30, 2004, he was pulled over by defendant Richmond Police Officer Opdyke #963 ("Officer Opdyke") for "speeding, no registration, no proof of insurance, and, again, suspended license." (See id. at 4 ¶ 3.) When El told Officer Opdyke that he did not need a driver's license, Officer Opdyke allegedly warned him that if he did not tell Officer Opdyke his old driver's license number, Officer Opdyke would take El to jail. (See id. at 4 ¶ 3(a).) Officer Opdyke then allegedly impounded El's automobile and forced him to sign a traffic citation. (See id.)

  El brings his complaint pursuant to 42 U.S.C. § 1983, and alleges that Officers Odmo and Opdyke "conspired, under the color of law, to deprive Moorish National (natural person) Mizraim Mohammed El of liberty and property without due process." (See id. at 2 ¶ 3.) El seeks compensatory and punitive damages. (See id. at 5 ¶¶ 4, 6.)

  On April 20, 2004, El filed a motion "For Injunction against Actions of Berkeley Court," by which El sought to enjoin all further proceedings in the courts of Alameda and Contra Costa Counties on the above-noted traffic citations. The Court denied the motion on April 29, 2004, based on the doctrine of Younger abstention. See Younger v. Harris, 401 U.S. 37, 46 (1971).

  On May 25, 2004, Officer Odmo filed the instant motion to dismiss. To date, Officer Opdyke has not responded to the complaint.

  LEGAL STANDARD

  A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. See Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).

  DISCUSSION

  A. Motion to Strike and Motion to Disqualify

  El moves to strike Officer Odmo's motion to dismiss, and to disqualify Officer Odmo's counsel. El argues that he received two letters from counsel that were not filed with the Court and takes issue with the legal arguments set forth in Officer Odmo's motion to dismiss. As El has not set forth any cognizable basis for striking the motion to dismiss, or for disqualifying Officer Odmo's counsel, El's motions are hereby DENIED.

  B. Motion to Dismiss

  Officer Odmo's motion to dismiss is based on two legal arguments. First, he argues that the entire action should be dismissed on the grounds of Younger abstention and, in the alternative, the Rooker-Feldman doctrine,*fn1 because El is seeking to vacate the two traffic citations. This argument is not meritorious, as El is not seeking to vacate the two traffic ...


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