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Strong v. Tolman

June 25, 2009

VANCE STRONG, PLAINTIFF,
v.
M.A. TOLMAN, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is proceeding in this action pro se and in forma pauperis. This proceeding was referred to this court by Local Rule 72-302(c)(21). On May 29, 2009, plaintiff's complaint was dismissed and he was granted leave to file an amended complaint. Plaintiff has now filed an amended complaint.

The federal in forma pauperis statute authorizes federal courts to dismiss a case if the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

Plaintiff again claims that this action is not about a "motor vehicle," as defined in 18 U.S.C. § 31(6), is not challenging an impediment to his right to travel, and is "not about re-characterizing car; no vehicle is involved here. . ." (Am. Complt. at 2.) Plaintiff avers that his automobile is a consumer good pursuant to UCC 9-109, and sets forth the following facts:

On March 3, 2008 officer MA Tolman did knowingly pull over a consumer good BMW on freeway by red lights: stating to plaintiff under circumstances a TR130 would be issued: 1) no registration under VC 4000; 2) no insurance under 16028 Tolman knowingly use[d] Citation form TR130 intended for Commercial Vehicle: April 18, 200[8] plaintiff appeared in front of commissioner Seth Holt Jr. and provided evidence of 'no jurist person involved' per codes cited: evidence denied. On April 18th 200[9] 10 pm plaintiff was again pulled over by officers Aaron Montoya and Stepthen Dowswell by red lights: under circumstance of head lamp out: citation issued: false stop: both lights worked: reflection seen by plaintiff: forced to sign TR 130 for commercial vehicle or be jailed: consumer good taken: a request[] to speak with commander on duty Mike Aguilar: After Aguilar talked to Stephen Aguilar denied request; to review documents: all officers informed of facts: cars [were] bought and used only for personal, family and household use see; purchase sales contract: proving intent of use: . . . (Am. Complt. at 4.) Plaintiff states he was not stopped, parked or obstructing but was "locomotioning a block from home," (id. at 2) when the patrol car pulled him over.

In this court's May 29, 2009 order, the court explained that in order to state a cognizable civil rights claim he must demonstrate the impoundment was unreasonable under South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976). Plaintiff has failed to so demonstrate.

Whether or not the UCC defines "motor vehicle" as a consumer good, the California Vehicle Code defines a motor vehicle as "a vehicle which is self-propelled." Cal. Vehicle Code § 415. The term "vehicle" is defined as

A "vehicle" is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.

Cal. Vehicle Code § 670. Insurance Code § 11580.06, subdivision (a) defines a motor vehicle as "any vehicle designed for use principally upon streets and highways and subject to motor vehicle registration under the laws of this state." Cal. Insurance Code § 11580.06(a).

Under these common sense definitions, plaintiff's BMW and Jaguar are both considered motor vehicles under California law. Although plaintiff claims two cars are not at issue in this case, he previously stated two cars are at issue in this case:

On the night of March 18-09 at 22:55 two officers of the Manteca police Dept did illegally steal and impound plaintiff['s] private property. Triggering Federal Jurisdiction by the following way. A Jag not a BMW: Two cars are in this case. . . .

(Pl.'s May 6, 2009 filing at 1.) It is unclear from the amended complaint whether plaintiff is challenging police actions with regard to the BMW and the Jaguar, or just the Jaguar.*fn1

Plaintiff attempts to argue his "consumer goods" are exempt from the registration provision because they were bought and used only for personal, family and household use. (Am. Complt. at 4.) However, there is no such exemption in the California Vehicle Codes or Insurance Codes. Plaintiff's citations to Virginia's uniform commercial code or cases from other jurisdictions are unavailing. The applicable state law also does not ...


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