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Bailey v. Root

July 14, 2010

RUSSO BAILEY, PLAINTIFF,
v.
D. ROOT; D. HOLLISTER; WILLIAM LANDSDOWNE, CITY OF SAN DIEGO, STAR TOWING, DEPARTMENT OF MOTOR VEHICLES FOR THE STATE OF CALIFORNIA, 5 UNKNOWN POLICE DEPUTIES, DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING MOTION TO DISMISS COMPLAINT AND DENYING MOTION FOR SANCTIONS

The City of San Diego (the "City") has filed a motion to dismiss Plaintiff's Complaint for failure to state a claim. Plaintiff Russo Bailey ("Plaintiff"), proceeding pro se, has filed motion for sanctions against the City. For the reasons discussed below, the City's motion to dismiss is GRANTED, and Plaintiff's motion for sanctions is DENIED.

I. FACTUAL BACKGROUND

Plaintiff commenced this action on February 16, 2010.

Plaintiff's Complaint arises out of two incidents during which (1) Plaintiff was issued a Notice to Appear by San Diego police officers for operating a motorcycle without having a proper motorcycle license or endorsement; and (2) the police officers took possession of Plaintiff's motorcycle and had it towed away by Star Towing.

The first incident took place on July 1, 2006, and was the subject of a lawsuit Plaintiff filed in 2007 against defendants Hollister, Landsdowne, the City of San Diego, Star Towing, the DMV, and others. (Bailey v. Hollister, et al., 07cv2243 JM(NLS)).

The second incident took place on September 7, 2009.

Plaintiff's Complaint sets forth six "causes of action" and seven "claims for relief." Construing the Complaint liberally, Plaintiff's legal claims can be reduced to the following:

(1) a claim under 42 U.S.C. § 1983 for false arrest; (2) a claim under 42 U.S.C. § 1983 for unlawful seizure of property and violation of his due process rights; (3) a claim under 42 U.S.C. § 1983 for excessive force; (4) a Monell claim against the City; (5) a claim for violation of 42 U.S.C. §§ 1985, 1986; (6) violation of various California Penal Code provisions; and (7) violation of the California Constitution.

II. STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted 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. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] that the pleader is entitled to relief." Ashcroft v. Iqbal, __ U.S. __, 129 S,Ct. 1937, 1950 (2009) (internal quotation marks omitted).

III. DISCUSSION

A. Motion to Dismiss

The City contends that Plaintiff's Complaint should be dismissed for failure to state a claim. Upon review of the ...


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