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Bailey v. State of California Dep't of Justice

June 25, 2008

RUSSO BAILEY, PLAINTIFF,
v.
STATE OF CALIFORNIA DEPARTMENT OF JUSTICE; ALLEN J. PRECKEL; CITY OF EL CAJON; M. BEVAN; SAN DIEGO COUNTY; DONNIE DUMANUS; WILLIAM KOLENDER , DEFENDANTS.



ORDER GRANTING JUDGE PRECKEL'S MOTION TO DISMISS; GRANTING CITY OF EL CAJON AND M. BEVAN'S MOTION TO DISMISS; GRANTING LEAVE TO AMEND

Judge Allan J. Preckel moves to dismiss the First Amended Complaint ("FAC") based upon principles of absolute judicial immunity. Defendants City of El Cajon and M. Bevan move to dismiss all claims asserted against them pursuant to Rule 12(b)(6). Plaintiff Russo Bailey opposes all motions. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the motion of Judge Preckel is granted with prejudice and the motion of City of El Cajon and M. Bevan is granted with 20 days leave to amend. The court also denies Plaintiff's request for sanctions.

BACKGROUND

On October 31, 2007 Plaintiff Russo Bailey, prosecuting this civil rights action in forma pauperis and in propria persona, filed a complaint alleging six causes of action against Defendants. On December 8, 2006 Plaintiff alleges that defendant M. Bevan, Jason Sargent, James Brai, Eric Taylor and 15 unknown City of El Cajon police officers falsely arrested Plaintiff while he was parked in a public business parking lot in the City of El Cajon. (FAC at p.3:12-16). Plaintiff generally alleges that the individually named police officers and the 15 unknown police officers kidnaped Plaintiff, vandalized Plaintiff's car, and "illegally took plaintiff's personal property." FAC p.3:24).

Plaintiff was arrested on December 9, 2006 and a criminal complaint filed against him in the Superior court of California, charging Plaintiff with violation of Penal Code sections 12025(a)(1) and 12031(a)(1), carrying a concealed firearm in a vehicle and carrying a loaded firearm by a convicted person. (Request for Judicial Notice ("RJN"), Exh. A). On May 17, 2007 Plaintiff pled guilty to Penal Code section 12025(a)(1) and an enhancement for being a felon in possession of a firearm. (RFN Exh. B).

Plaintiff alleges that certain unidentified officers of the California Highway Patrol witnessed the alleged "felonies committed by El Cajon City Police." (FAC at p.8:8). Plaintiff also alleges that he was subjected to excessive force and that he "sustained damages by loss of his freedom, property, loss of continued usage of his property and loss of business." (FAC at p.7:13-14).

Based upon this generally described conduct, Plaintiff alleges six causes of action for (1) municipal liability under Monell; (2) false arrest, false imprisonment, and assault; (3) violation of 42 U.S.C. §1986(c); (4) excessive force; (5) violation of the Unruh Act, Cal.Civ.Code §52.1; and (6) breach of contract. Plaintiff also seeks injunctive relief to prevent Defendants from disseminating any "bad history of the Plaintiff." (Compl. at p.8:16-17)

DISCUSSION

Legal Standards

Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly, __550 U.S. __, 127 S.Ct. 1955 (2007). The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).

Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. KarimPanahi v. Los Angeles Police Dept., 839 F.2d 621 at 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (conclusory allegations unsupported by facts are insufficient to state a claim under section 1983.) "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones, 733 F.2d at 649 (internal quotation omitted).

Motion of Judge Allan Preckel

Plaintiff's claims against Judge Preckel relate to Plaintiff's May 17, 2007 guilty plea to being a felon in possession of a firearm in violation of Pen. Code ยงยง12025(a)(1) and (b)(1), and subsequent sentence imposed by Judge Preckel. On March 18, 2008 the court granted Judge Preckel's motion to dismiss with prejudice and without leave to amend ("March Order"). As the court's ...


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