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Andrew Burnett v. City of Santa Clara

March 14, 2011

ANDREW BURNETT,
PLAINTIFF,
v.
CITY OF SANTA CLARA, STEPHEN D. LODGE CHIEF OF SANTA CLARA POLICE
DEPARTMENT, JULIE FREITAS, T. CLARK, PAUL KOFMAN, EDWARD PETERSON, TROY BENSON, PHILAMON ZARAGOZA, DOES 1-5, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

United States District Court For the Northern District of California

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS WITH PREJUDICE AND DISMISSING CASE (re: docket #66 and #68) 15

Defendants Troy Benson and Edward Peterson (collectively "County Defendants") have each 22 moved to dismiss the First Amended Complaint (FAC) on various grounds including failure to 23 state a claim, lack of subject matter jurisdiction, statute of limitations, and immunity. Plaintiff 24

Andrew Burnett, appearing pro se, did not oppose the motions to dismiss. The Court deems these 25 motions appropriate for resolution without oral argument. See Civ. L.R. 7-1(b). Good cause 26 appearing, Defendants' motions to dismiss are granted with prejudice. The March 17, 2011 motion 27 hearing is vacated.

Defendants City of Santa Clara, Chief of Police Stephen D. Lodge, Officer Julie Freitas, Officer Paul Kofman, and Officer Philamon Zaragoza (collectively "City Defendants") and with respect to Plaintiff's nearly identical original Complaint. See October 27, 2010 Order [dkt. Specifically, the Court stated: "Although it does not appear to the Court that Plaintiff could allege 7 any set of facts in connection with the destruction of his rifle that would give rise to a valid federal 8 claim, it is this Court's practice to grant leave to amend to allow a plaintiff, especially a pro se 9 plaintiff, at least one opportunity to remedy deficiencies in the complaint." See id. at 4. The Court 10 notified Plaintiff, however, that, in any amended complaint, he "must allege, with specificity, what actions by Defendants caused him unlawful harm." Id.The Court recognizes that it has "a duty to construe pro se pleadings liberally, including pro se motions as well as complaints." Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). Even liberally construed, Plaintiff's FAC 14 includes no additional factual allegations or valid legal claims and, instead, repeats almost verbatim the allegations and claims in his original Complaint. destruction of his high value Olympic Arms rifle. See FAC at 2-3 (detailing the various parts of 18 the rifle and alleging that Defendants conspired "to deny Burnett's rights to property."). Plaintiff 19 alleges that, while he was under investigation for a criminal offense, Plaintiff's uncle gave the Plaintiff of his property. Id. at 3. Plaintiff then describes his unsuccessful efforts to have the Olympic Arms rifle returned or transferred. In the FAC, unlike the original Complaint, Plaintiff 23 does not acknowledge his June 2001 felony conviction. Plaintiff further alleges that his effort to 24 have the rifle returned "was hijacked [by various persons named as Defendants in this action] and the court ordered its destruction instead." Id. Plaintiff appealed this decision to the California Complaint, Plaintiff alleges that the state-court ordered destruction of his Olympic Arms rifle is an

I.BACKGROUND

A.Plaintiff's Allegations

This Court previously granted Defendants' motions to dismiss for failure to state a claim #64]. The Court, out of respect for his pro se status, granted Plaintiff leave to amend.

United States District Court For the Northern District of California

In the FAC, Plaintiff continues to allege an "unlawful seizure" and court-ordered Santa Clara Police Department Plaintiff's Olympic Arms rifle and Mossberg shotgun depriving Court of Appeals, Sixth District, but this appeal was denied. Id. at 4. In the FAC, as in the original "unconstitutional violation of Burnett's rights under the Second, Fourth, and Fourteenth Amendments to the United States Constitution. The Second Amendment guarantees Burnett the 2 right of the people to keep and bear Arms and shall not be infringed." Id. at 5-6. in state court to have the Olympic Arms rifle returned or transferred. Plaintiff's state court case 6 was captioned Andrew Douglas Burnett v. Santa Clara Police Department and Santa Clara

Superior Court, Case No. 210631 and CC196212. Specifically, City Defendants seek judicial 8 notice of three documents: 1) February 2004 Order Prohibiting the Release of Property to "assault weapons" based on his prior felony convictions and failure to register as the owner of the rifle; 2) February 2009 Order of Judge Andrea Bryan Denying Any Motion to Stay Destruction of Rifle; and 3) the Sixth Appellate District's August 2009 Dismissal of Andrew Burnett's April 1, 2009 Appeal. See City Defs.' RJN [dkt. #70]. Plaintiff has not opposed the request for judicial 14 notice. Pursuant to Federal Rule of Evidence 201(b), the Court takes judicial notice of these state 15 court orders and proceedings. See Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006)

B.Request for Judicial Notice

City Defendants have requested judicial notice of documents connected to Plaintiff's efforts

Petitioner (including Olympic Arms rifle), which was based on Plaintiff's ineligibility to possess Although brief, these documents help explain what ...


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