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Clifford M. Lewis, et al v. Ken Salazar

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 31, 2011

CLIFFORD M. LEWIS, ET AL.,
PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY OF THE INTERIOR FOR THE UNITED STATES OF AMERICA, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Judge: Honorable Oliver W. Wanger

ORDER GRANTING DEFENDANT KEN SALAZAR'S MOTION TO DISMISS WITH PREJUDICE [Fed. R. Civ. P. 12(b)(1) and (b)(6)]

Date: August 1, 2011 Time: 10:00 a.m. Place: Courtroom 3, 7 th Floor

This matter came before the Court on August 1, 2011, on the Secretary of the Department of the Interior's ("Secretary") Motion to Dismiss the claims asserted against the Secretary in plaintiffs' Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Having read and carefully considered the papers filed in connection with this matter and having heard oral argument, the Court hereby grants the Secretary's Motion to Dismiss and dismisses each and all of plaintiffs' claims against the Secretary (which consist of Claims One and Two in the Second Amended Complaint) with prejudice for the reasons set forth in the Court's Memorandum Decision filed on August 29, 2011.

IT IS HEREBY ORDERED THAT:

(1) Plaintiffs' first claim in the Second Amended Complaint is dismissed with prejudice because it fails to state a claim upon which relief can be granted; it is barred by the doctrine of sovereign immunity; plaintiffs were previously admonished at the hearing on the Secretary's motion to dismiss the First Amended Complaint that they would be given only one more opportunity to amend their complaint in order to articulate cognizable claims and they have failed to articulate cognizable claims in their Second Amended Complaint; and amendment would be futile because plaintiffs have failed to point to a waiver of the government's sovereign immunity.

(2) Plaintiffs' second claim in the Second Amended Complaint is dismissed with prejudice because it fails to state a claim upon which relief can be granted; it is barred by the doctrine of sovereign immunity; plaintiffs were previously admonished at the hearing on the Secretary's motion to dismiss the First Amended Complaint that they would be given only one more opportunity to amend their complaint in order to articulate cognizable claims and they have failed to articulate cognizable claims in their Second Amended Complaint; and amendment would be futile because plaintiffs have failed to point to a waiver of the government's sovereign immunity.

(3) This action is dismissed with prejudice and judgment shall be entered in favor of the Secretary.

IT IS SO ORDERED.

Oliver W. Wanger UNITED STATES DISTRICT JUDGE

emm0d6

20110831

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