United States District Court, N.D. California
June 22, 2004.
MIZRAIM MOHAMMED EL, Plaintiff,
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
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
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).
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 citations, but, rather, is seeking an award of damages
against the two defendants. (See FAC at 5 ¶¶ 4, 6.)
Officer Odmo's second argument is that he is entitled to
qualified immunity because El fails to allege facts constituting
a deprivation of any constitutional right. The defense of
qualified immunity protects "government officials . . . from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known." See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity
"`provides ample protection to all but the plainly incompetent or
those who knowingly violate the law'"; defendants are protected
where they have a reasonable, but mistaken, belief about the
facts or about what the law requires in any given situation.
See Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). "Therefore,
regardless of whether the constitutional violation occurred, the
[official] should prevail if the right asserted by the plaintiff
was not `clearly established' or the [official] could have
reasonably believed that his particular conduct was lawful."
See Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.
A court considering a claim of qualified immunity must first
determine whether the plaintiff has alleged the deprivation of an
actual constitutional right, and then proceed to determine if the
right was "clearly established." See Wilson v. Layne,
526 U.S. 603, 609 (1999); Conn v. Gabbert, 526 U.S. 286, 290
(1999). The threshold question is whether, taken in the light
most favorable to the party asserting the injury, the facts
alleged show the officer's conduct violated a constitutional
right. See Saucier, 533 U.S. at 201. If no constitutional
right would have been violated were the allegations established,
there is no necessity for further inquiry concerning qualified
immunity. See Saucier, 533 U.S. at 201. On the other hand, if
a violation could be made out on the allegations, the next
sequential step is to ask whether the right was clearly established. See
The Supreme Court has held that states may constitutionally
regulate the use of public highways. In Reitz v. Mealey, the
Supreme Court stated:
The use of the public highways by motor vehicles,
with its consequent dangers, renders the
reasonableness and necessity of regulation apparent.
The universal practice is to register ownership of
automobiles and to license their drivers. Any
appropriate means by the states to insure competence
and care on the part of its licensees and to protect
others using the highway is consonant with due
See Reitz v. Mealey, 314 U.S. 33
, 26-27 (1941). Notably, the
Supreme Court did not limit its holding to commercial uses of
public highways. See id. As the Supreme Court also has held
that a police officer does not violate the Constitution by
arresting a nonlicensed driver without a warrant and jailing him,
see Atwater v. City of Lago Vista, 532 U.S. 318
, 323 (2001),
there can be no constitutional violation in simply issuing a
citation for the same offense.
With respect to El's allegation that Officer Odmo failed to
read El his Miranda rights, see Miranda v. Arizona,
384 U.S. 436 (1966), the Supreme Court has held that Miranda is
inapplicable when a motorist is temporarily detained by police
for questioning pursuant to a routine traffic stop. See
Berkemer v. McCarty, 468 U.S. 420, 440 (1984). Accordingly, El
has no constitutional claim against Officer Odmo based on his
failure to read El his Miranda rights.
Finally, with respect to El's allegation that Officer Odmo
prevented El's access to his automobile, El admits that he did
not have a driver's license. (See FAC at 3 ¶ 2.) California law
authorizes a police officer to seize a vehicle after citing its
driver for failing to have a valid driver's license, and to
refuse to release the vehicle until the registered owner or his
agent presents a current valid driver's license. See Cal. Veh.
Code § 22651(p). Officer Odmo did not commit a constitutional
violation by refusing to allow El access to his automobile.
See, e.g., South Dakota v. Opperman, 428 U.S. 364 (1976)
(noting that "[t]he authority of police to seize and remove from
the streets vehicles impeding traffic or threatening public
safety and convenience is beyond challenge"). As El has not alleged the deprivation of a constitutional
right, the Court hereby GRANTS Officer Odmo's motion to dismiss.
C. Attorney's Fees
Officer Odmo, in his motion to dismiss, seeks recovery of
attorneys' fees and costs pursuant to 42 U.S.C. § 1988. In
actions brought pursuant to 42 U.S.C. § 1983, "the court, in its
discretion, may allow the prevailing party . . . a reasonable
attorney's fee as part of the costs[.]" See
42 U.S.C. § 1988(b). A prevailing defendant may recover fees from the
plaintiff under § 1988 if the plaintiff's lawsuit was frivolous,
unreasonable, or without foundation, even if it was not brought
in bad faith. See Christiansburg Garment Co. v. E.E.O.C.,
434 U.S. 412, 421 (1978) (interpreting Title VII); Hughes v. Rowe,
449 U.S. 5, 14-15 (1980) (applying Christiansburg standard to
fee requests brought pursuant to § 1988). "[A] plaintiff should
not be assessed his opponent's attorneys' fees unless a court
finds that his claim was frivolous, unreasonable, or groundless,
or that the plaintiff continued to litigate after it clearly
became so." Christiansburg, 434 U.S. at 422.
In the instant case, El's complaint is utterly frivolous.
Officer Odmo should not have to bear the financial burden of
defending against such a clearly meritless lawsuit. Accordingly,
Officer Odmo's request for an award of attorney's fees, pursuant
to § 1988, is hereby GRANTED.
D. Officer Opdyke
Although, to date, Officer Opdyke has not responded to the
complaint, the analysis set forth above with respect to Officer
Odmo's motion to dismiss applies equally to El's allegations
against Officer Opdyke. The Court "may properly on its own motion
dismiss an action as to defendants who have not moved to dismiss
where such defendants are in a position similar to that of moving
defendants or where claims against such defendants are integrally
related." See Silverton v. Department of the Treasury,
644 F.2d 1341, 1345 (9th Cir. 1981).
Accordingly, the Court hereby DISMISSES El's claim against
CONCLUSION For the reasons set forth above,
1. El's motion to strike and motion to disqualify Officer
Odmo's counsel is DENIED.
2. Officer Odmo's motion to dismiss is GRANTED, and the
complaint is DISMISSED, with prejudice.
3. Officer Odmo's request for an award of the reasonable
attorney's fees he incurred in defending against the complaint,
pursuant to 42 U.S.C. § 1988, which shall be paid by El, is
GRANTED. No later than July 9, 2004, Officer Odmo shall file a
noticed motion, setting forth the fees he incurred, and supported
by appropriate declaration(s). El's opposition, if any, and
Officer Odmo's reply, if any, shall be filed in accordance with
the schedule set forth in Civil Local Rule 7-3,
The Clerk shall close the file and terminate any pending
IT IS SO ORDERED.