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John Frederick Wheeler v. Bakersfield City

September 29, 2011

JOHN FREDERICK WHEELER,
PLAINTIFF,
v.
BAKERSFIELD CITY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDING AND RECOMMENDATION TO DENY MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISS THE ACTION (DOCS 1 & 2)

Plaintiff has filed a civil rights action pursuant to 42 U.S.C. § 1983, along with an application to proceed in forma pauperis. This proceeding was referred to this Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1) and Local Rule 302.

I. IN FORMA PAUPERIS

Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The Court recommends that the application to proceed in forma pauperis be denied because, as discussed below, the complaint fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2).*fn1

II. SCREENING REQUIREMENT

The Court is required to review a case filed in forma pauperis. See 28 U.S.C. § 1915(e)(2). The Court must review the complaint and dismiss any portion thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). If the Court determines the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a plaintiff's obligation to provide the grounds of entitlement to relief under Rule 8(a)(2) requires more than "naked assertions," "labels and conclusions," or "formulaic recitation[s] of the elements of a cause of action." Twombly, 550 U.S. at 555-57. The complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868, 883 (2009) (quoting Twombly, 550 U.S. at 570). Vague and conclusory allegations are insufficient to state a claim. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

III. THE COMPLAINT

Plaintiff alleges as follows. On August 16, 2011, Plaintiff received a "Notice of Violation" from a code enforcement officer for parking his vehicle on an unpaved surface, a violation of Bakersfield's Municipal Code Section 10.32.160. ("BMC 10.32.160") Doc. 1 at 10. At time he received the notice, Plaintiff's vehicle was parked on grass, adjacent to the garage of his rental property located in Bakersfield, California. Doc. 1 at 4. BMC 10.32.160 provides:

No person shall park any motor vehicle, trailer, camper, boat, or other mobile equipment on any unpaved area in any front yard, any rear yard, which rear yard is open to public view from any public right of way, any side yard, or on any other unpaved public or private property.

Doc. 1 at 12.

The notice advised Plaintiff that he had twenty-four hours to remove his vehicle or a $35.00 parking citation would be issued. Doc. 1 at 10. Plaintiff also alleges that in order to obtain the vehicle's license number, the enforcement officer must have entered Plaintiff's property without authority or Plaintiff's consent. According to the factual allegations of Plaintiff's complaint, the license number, was not visible from the front of Plaintiff's property. Doc. 1 at 5.

Following this notice, the City provided Plaintiff a seven-day notice to abate the violation, dated August 17, 2011, which advised that: (1) a re-inspection would take place no sooner than twelve days from the date of the letter; and (2) asked Plaintiff to contact the officer prior to the re-inspection date to discuss informal resolution of the manner; and (3) advised Plaintiff of the additional fees the City would seek from Plaintiff should if the condition were not "resolved." See Doc. 1 at 11.

Based on the foregoing allegations, on August 22, 2011, Plaintiff filed the instant matter pursuant to 42 U.S.C. ยง 1983, alleging that Defendant's ordinance deprives him of his property in violation of federal due process. Doc. 1 at 1, 4-5. In addition, Plaintiff contends the officer's entry to his property violated the Fourth Amendment's prohibition against unreasonable ...


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