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Russo Bailey v. Elders

March 22, 2012

RUSSO BAILEY; PLAINTIFF,
v.
ELDERS, JOHNS, CHIEF OF POLICE FOR THE CITY OF EL CAJON, ACE TOWING, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matters before the Court are the (1) Motion to Dismiss filed by Defendant Ace Towing (ECF No. 9), (2) Motion to Dismiss filed by Defendants Elders, Johns, and Pat Sprecco as Chief of Police for the City of El Cajon (ECF No. 10), (3) Motion for Sanctions filed by Plaintiff Russo Bailey (ECF No. 11), and (4) Motion for Summary Judgment filed by Plaintiff Russo Bailey (ECF No. 21).

BACKGROUND

On July 22, 2011, Plaintiff, proceeding pro se and in forma pauperis, initiated this action by filing a Complaint pursuant to 28 U.S.C. § 1983. (ECF No. 1). The Complaint asserts six "causes of action" and eight "claims for relief" against Defendants Elders, Johns, the Chief of Police for the City of El Cajon, and Ace Towing. (ECF No. 1).

On September 19, 2011, Defendant Ace Towing filed a Motion to Dismiss (ECF No. 9) and Defendants Elders, Johns, and Pat Sprecco as Chief of Police for the City of El Cajon filed a Motion to Dismiss (ECF No. 10). The two motions to dismiss (ECF Nos. 9, 10) are identical and both contain a Request for Judicial Notice in Support of the Motion to Dismiss. On October 7, 2011, Plaintiff filed an Opposition. (ECF No. 12). On October 17, 2011, Defendants Elders, Johns, and Sprecco filed a Reply (ECF No. 14) and Defendant Ace Towing filed a reply (ECF No. 15). The two replies (ECF Nos. 14, 15) are identical.

On October 7, 2011, Plaintiff filed a Motion for Sanctions. (ECF No. 11).

On February 28, 2012, Plaintiff filed a Motion for Summary Judgment. (ECF No. 21). On March 14, 2012, Defendants filed an affidavit in opposition. (ECF No. 22).

ALLEGATIONS OF THE COMPLAINT

On May 22, 2011, Defendants Elders and Johns searched and seized Plaintiff's property without cause or warrant while Plaintiff was inside a nearby McDonald's restaurant. (ECF No. 1 at ¶ 10). Defendant Elders "violently attacked Plaintiff without provocation, binding the hands of Plaintiff intentionally to cause an incision and swelling of his right hand." Id. Defendants Elders and Johns committed vandalism and armed robbery of Plaintiff's vehicle, taking "government documents, personal papers, garments, art work, electronic equipment, tools, radio, cameras, bedding, cooking utensils, food, and books." Id. at ¶ 11. "Plaintiff was then kidnapped and taken against his will to a jail cell" where he was "held for three days in jail without cause and never charged with a public offense." Id.

On May 26, 2011, Plaintiff was informed by Defendants Chief of Police for the City of El Cajon and Ace Towing "that he will not regain possession [of] his vehicle" because he "does not own the vehicle in question," even though Plaintiff produced the title to the vehicle. Id. at ¶ 12. Defendant Ace Towing "did carjack" Plaintiff's vehicle and "sold the property for economic gain." Id. at ¶¶ 15-16.

The Complaint asserts six "causes of action" and eight "claims for relief" against Defendants, generally alleging the following: robbery of plaintiffs personal property, carjacking of his vehicle, kidnapping, assault and excessive force by arresting officers during arrest, false arrest, warrantless search and seizure, and failure to investigate, supervise or discipline officer misconduct by the City of El Cajon.

DISCUSSION

I. Motion to Dismiss Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or ...


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