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Cornelius Lopes v. Freemont Freewheelers Bicycle Club

October 28, 2011

CORNELIUS LOPES,
PLAINTIFF,
v.
FREEMONT FREEWHEELERS BICYCLE CLUB, CITY OF NEWARK, NEWARK POLICE DEPARTMENT, NEWARK POLICE UNION, JOSEPH DALE WREN, OFFICER BADGE #56, DEPUTY D.A. LISA FARIA, SHARA MESIC, TIM O'HARA, STEVE GRUSIS, LARRY NOLAN WARREN GEISSERT, BRAD
BALDWIN, JIM DAVIS, STACY PETTIGREW, RICHARD BROCKIE,
JASON SAGE, SALLY WILSON,
DEFENDANTS.



The opinion of the court was delivered by: Richard Seeborg United States District Judge

ORDER GRANTING MOTION TO DISMISS

I. INTRODUCTION

Plaintiff Cornelius Lopes brings this action for relief based on testimony given in March and July of 2007, in connection with an earlier case. That case was one of several, all initiated by 24 Lopes, to arise out of a collision that occurred in June of 2004. Defendants, including the City of 25 Newark, several law enforcement officials, the Freemont Freewheelers Bicycle Club, and a number 26 of its members, move to dismiss on several grounds. Pursuant to Civil Local Rule 7-1(b), the 27 motion is suitable for disposition without oral argument, and for the reasons stated below, the 28 motion is granted.

and members of the Freemont Freewheelers Bicycle Club on June 12, 2004. As a result of that 4 crash, Lopes was prosecuted for battery by the Alameda County District Attorney's Office, with the 5 cooperation of the Club and several of its members. The case resulted in a mistrial and was 6 thereafter dismissed by the prosecutor's office on October 12, 2005.

County, alleging negligence and other claims. In his complaint, he named most of the defendants in 9 the instant case. He eventually obtained a judgment after a jury trial. On June 9, 2006, Lopes filed 10 another complaint in the , alleging a number of claims, including violations of 42 U.S.C. § 1983, and naming most of the law enforcement defendants also named here. After affording Lopes several opportunities to amend his 13 complaint, the court (Breyer, J.) dismissed one claim and granted defendants' motion for summary 14 judgment on the remaining claims. On November 7, 2007, Lopes filed yet another complaint, this 15 time in Alameda Superior Court, alleging civil rights violations under 42 U.S.C. § 1983, negligence, 16 malicious prosecution, and again naming most of the defendants present in this action. The case 17 was removed to the United States District Court (Hamilton, J.) which ultimately dismissed it with 18 prejudice based on statute of limitations and res judicata grounds. Lopes' appeal to the Ninth Circuit was unsuccessful. He filed this action on March 28, 2011, to which defendants have 20 responded with a motion to dismiss.

A complaint must contain "a short and plain statement of the claim showing that the pleader 23 is entitled to relief." Fed. R. Civ. P. 8(a)(2). While "detailed factual allegations are not required," a 24

II. FACTUAL & PROCEDURAL BACKGROUND*fn1

This is the latest in a string of cases filed by plaintiff arising out of a collision between Lopes On March 16, 2006, Lopes filed a complaint in the Superior Court of California, Alameda

III. LEGAL STANDARD

Freewheelers, No. C 07-6213 PJH (N.D. Cal. Aug. 7, 2008), and materials submitted by defendants Faria, Mesic-Beltramo, and Pettigrew for judicial notice. Defendants' motion requesting notice, 26 which is unopposed by plaintiff, is granted because the documents at issue are undisputed matters of public of record, consisting of a warrant, and other documents filed in Lopes' previous actions. See 27 Fed. R. Evid. 201(b), and Lee v. City of Los Angeles, 250 F.3d 668, 688-90 (9th Cir. 2001). Although the court takes judicial notice of the fact that these documents were filed in connection 28 with Lopes' prior cases, it does not necessarily rely on, or take judicial notice of, the facts stated therein. Lee, 250 F.3d at 689-90.

complaint must have sufficient factual allegations to "state a claim to relief that is plausible on its 2 face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 3 U.S. 544, 570 (2007). Dismissal under FRCP Rule 12(b)(6) may be based either on the "lack of a 4 cognizable legal theory" or on "the absence of sufficient facts alleged under a cognizable legal 5 theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). When evaluating 6 such a motion, the court must accept all material allegations in the complaint as true, even if 7 doubtful, and construe them in the light most favorable to the non-moving party. Twombly, 550 US 8 at 570. "[C]onclusory allegations of law and unwarranted inferences," however, "are insufficient to 9 defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co., 83 F.3d 1136, 10 that the complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995). When amendment would be futile, however, dismissal may be with 13 prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996).

Although Lopes' complaint is hard to decipher and states few facts, his claims appear to be:

(1) malicious prosecution; and (2) violations of 42 U.S.C. ยง 1983, based on his Fourteenth 17 1140 (9th Cir. 1996). In dismissing a complaint, leave to ...


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