Rothery et al v Blanas et al

Filing 44

ORDER signed by Judge John A. Mendez on 7/27/09 ORDERING that this case is DISMISSED with prejudice and without leave to amend. (Engbretson, K.)

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JOHN A. LAVRA, CSB No. 114533 JERI L. PAPPONE, CSB No. 210104 AMANDA L. BUTTS, CSB No. 253651 Longyear, O'Dea and Lavra, LLP 3620 American River Drive, Suite 230 Sacramento, Ca. 95864 Telephone: [phone] Facsimile: [phone] Attorneys for County of Sacramento (also erroneously sued herein as Sacramento County Sheriff's Department); Lou Blanas, John McGinness, Timothy Sheehan

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

) ) 13 ) Plaintiffs, ) 14 ) v. ) 15 ) Former Sheriff LOU BLANAS; SHERIFF ) 16 JOHN McGINNESS; Detective TIM ) SHEEHAN; SACRAMENTO COUNTY ) 17 SHERIFF'S DEPARTMENT, an independent ) branch of government of the COUNTY OF ) 18 SACRAMENTO; COUNTY OF ) SACRAMENTO; STATE OF CALIFORNIA ) 19 ATTORNEY GENERAL JERRY BROWN; ) L O N G Ye3620oDO(916) e974-8500 95864-5923 [phone] T Ee p h American1s ta&LCA /V RSuite 230 l A R , eOcDrm eRivera Drive, 25, unknown co-conspirators, ) n S A'Ea E A through A , L L P a t troS yn o , L A Facsimile n t w 20 ) Defendants. ) 21 ______________________________________ )
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JAMES ROTHERY, Esq.; ANDREA HOFFMAN,

CASE NO. 2:08-CV-02064-JAM-KJM ORDER

On July 15, 2009, the hearing on Defendants, County of Sacramento, Lou Blanas, Sheriff John McGinness, and Timothy Sheehan's Motion to Dismiss pursuant to FRCP 12(b)(6), was held before the Honorable John A. Mendez. Daniel Karalash appeared for Plaintiffs James Rothery and Andrea Hoffman. Geoffrey Graybill appeared on behalf of the State of California Attorney General Jerry Brown. John A. Lavra of Longyear, O'Dea and Lavra appeared on behalf of the Defendants, County of Sacramento, Lou Blanas, Sheriff John McGinness, and Timothy Sheehan, hereinafter "County

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Defendants". After consideration of the Defendants' moving papers, Plaintiffs' opposition brief, and Defendants' reply brief, together with oral argument presented at the hearing, and good cause appearing therefore, the court hereby rules as follows: The County Defendants' Motion to Dismiss the first claim for relief alleging violation of the RICO statute (18 U.S.C. §§1961-1968) is granted. Plaintiffs' complaint fails to state a claim upon which relief can be granted. The court hereby adopts the findings made at the time of the hearing as set forth in the transcript of the proceedings. Excerpts of the transcript are attached to this order as Exhibit 1, and incorporated herein. The County Defendants' Motion to Dismiss the second claim for relief alleging a violation of Equal Protection Clause pursuant to 42 U.S.C. § 1983 is granted. Plaintiffs' complaint fails to state a claim upon which relief can be granted. The court hereby adopts the findings made at the time of the hearing as set forth in the transcript of the proceedings. Excerpts of the transcript are attached to this order as Exhibit 1, and incorporated herein. The County Defendants' Motion to Dismiss the third claim, brought under the First and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 is granted. Plaintiffs' complaint fails to state a claim upon which relief can be granted. The court hereby adopts the findings made at the time of the hearing as set forth in the transcript of the proceedings. Excerpts of the transcript are attached to this order as Exhibit 1, and incorporated herein. The County Defendants' Motion to Dismiss the fourth claim alleging violation of Second Amendment on the grounds that the denial of CCW permits violates Plaintiffs' right to bear arms under the Second Amendment, is granted. Plaintiffs' complaint fails to state a claim upon which relief can be granted. The court hereby adopts the findings made at the time of the hearing as set forth in the transcript of the proceedings. Excerpts of the transcript are attached to this order as Exhibit 1, and incorporated herein. The County Defendants' Motion to Dismiss the fifth claim brought under the Privileges and Immunities Clause pursuant to 42 U.S.C. § 1983 is granted. Plaintiffs' complaint fails to state a claim upon which relief can be granted. The court hereby adopts the findings made at the

L O N G Ye3620oAmerican974-8500 95864-5923 [phone] T Ee p h , e (916) eeRivera Drive, Suite 230 l A R n Oa't Drm A ta&LCA /V R A , L L P S Actroa E yn o , L A Facsimile n st w

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time of the hearing as set forth in the transcript of the proceedings. Excerpts of the transcript are attached to this order as Exhibit 1, and incorporated herein. The County Defendants' Motion to Dismiss the sixth claim brought under Ninth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, alleging that those amendments provide a constitutional right to carry a concealed weapon, is granted. Plaintiffs' complaint fails to state a claim upon which relief can be granted. The court hereby adopts the findings made at the time of the hearing as set forth in the transcript of the proceedings. Excerpts of the transcript are attached to this order as Exhibit 1, and incorporated herein. The County Defendants' Motion to Dismiss the seventh claim, which is purportedly a claim for injunctive relief and declaratory relief is granted. The declaratory and injunctive relief claim is not a separate claim for relief upon which relief may be based and therefore, Plaintiffs' complaint fails to state a claim upon which relief can be granted. The court hereby adopts the findings made at the time of the hearing as set forth in the transcript of the proceedings. Excerpts of the transcript are attached to this order as Exhibit 1, and incorporated herein. The court further orders that this case, and each and every claim, be dismissed with prejudice and without leave to amend, for the reasons as set forth in both the Attorney General's and the County Defendants' briefs. There is no legal basis for the Plaintiffs' claims, and even if given the opportunity to amend, Plaintiffs would be unable to plead a legally cognizable complaint. The court finds this lawsuit to be almost frivolous, if not frivolous. There is no support in the law for this lawsuit. And even if the Court gave the Plaintiffs an opportunity to amend, they would be unable to. These are all solid, well-founded legal reasons set forth in the defendants' briefs as to why this case should not go forward. This lawsuit is just a rehash of David K. Mehl, et al. v. Lou Blanas, et al., U.S. District Court for the Eastern District of California, Civ. No. S03-2682 MCE KJM, and the findings and orders of Judge England from that case are incorporated herein in full. /// /// ///

L O N G Ye3620oAmerican974-8500 95864-5923 [phone] T Ee p h , e (916) eeRivera Drive, Suite 230 l A R n Oa't Drm A ta&LCA /V R A , L L P S Actroa E yn o , L A Facsimile n st w

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APPROVED AS TO FORM : DATED: July 24, 2009 /s/ Gary W. Gorski _____________________________________ DANIEL M. KARALASH or GARY GORSKI COUNSEL FOR PLAINTIFFS

DATED: July 24, 2009

/s/ Geoffrey L. Graybill ________________________________________ GEOFFREY LLOYD GRAYBILL DEPUTY ATTORNEY GENERAL

DATED: July 24, 2009

/s/ John A. Lavra ________________________________________ JOHN A. LAVRA ATTORNEY FOR COUNTY DEFENDANTS

IT IS SO ORDERED:
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L O N G Ye3620oAmerican974-8500 95864-5923 [phone] T Ee p h , e (916) eeRivera Drive, Suite 230 l A R n Oa't Drm A ta&LCA /V R A , L L P S Actroa E yn o , L A Facsimile n st w

Dated: July 27, 2009

/s/ John A. Mendez HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT JUDGE

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