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United States District Court, N.D. California

June 22, 2004.


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

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.


  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. 1991).

  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 id.

  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 process.
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 Officer Opdyke.

  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 motions.


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