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Garr Ooley, et al v. Citrus Heights Police

September 10, 2012

GARR OOLEY, ET AL., PLAINTIFFS,
v.
CITRUS HEIGHTS POLICE DEPARTMENT, ET AL.,
DEFENDANTS.



ORDER GRANTING THE MAURER DEFENDANTS' MOTION TO DISMISS

This matter is before the Court on Defendants Nicolas Maurer and Yvonne Pickering's (collectively the "Maurer Defendants") Motion to Dismiss (Doc. #44).*fn1 Plaintiffs Garr Ooley and Janis Starkey (collectively "Plaintiffs") oppose the motion (Doc. # 49).

This case arises from a series of alleged incidents involving Plaintiffs, Plaintiffs' neighbors, and the Citrus Heights Police Department ("CHPD"). Plaintiffs' Complaint contains allegations against numerous neighbors, the majority of whom were dismissed 2 from this lawsuit in the Court's May 30, 2012 Order (the "May 3

Order") (Doc. # 38) because Plaintiffs failed to state a cognizable 4 federal claim against their neighbors.*fn2 The Maurer Defendants are 5 also Plaintiffs' neighbors, and did not join in the other 6 neighbors' motion to dismiss because they were not represented by 7 counsel at that time. The Maurer Defendants subsequently retained 8 the other neighbor's counsel and filed the present motion. The 9

Maurer Defendants seek dismissal of the claims against them for the same reasons that the Court dismissed the other neighbors from this suit. The other neighbors successfully argued that they were not acting under color of state law, as required by 42 U.S.C. § 1983, and Plaintiffs therefore failed to state a federal claim against them.

I. OPINION

A. Legal Standard for Motion to Dismiss

1. Failure to State a Claim

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a 3 plaintiff needs to plead "enough facts to state a claim to relief 4 that is plausible on its face." Twombly, 550 U.S. at 570. 5

Dismissal is appropriate where the plaintiff fails to state a claim 6 supportable by a cognizable legal theory. Balistreri v. Pacifica 7 Police Department, 901 F.2d 696, 699 (9th Cir. 1990). 8

Upon granting a motion to dismiss for failure to state a 9 claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rules of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

2. Lack of Subject Matter Jurisdiction

A court may dismiss an action under Rule 12(b)(1) "when the District Court lacks subject matter jurisdiction over the claim." Fed. R. Civ. P. 12(b)(1). A motion made pursuant to Rule 12(b)(1) "may either attack the sufficiency of the pleadings to establish federal jurisdiction, or allege an actual lack of jurisdiction which exists despite the formal sufficiency of the complaint." Meaunrit v. ConAgra Foods Inc., 2010 WL 2867393, *3 (N.D. Cal. July 20, 2010) (internal citations omitted). A plaintiff bears the burden of proving jurisdiction "with the manner and degree of evidence required at the successive stages of the litigation." Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894, 899 (9th Cir. 2011) (quoting Lujan v. Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (1992)). ...


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