Bariana v. Serna et al

Filing 11

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/12/13 ORDERING that Defendants' Request for Judicial Notice 7 is GRANTED as to Exhibit A,B and E; and IT IS HEREBY RECOMMENDED that Defendant's MOTION to DISMISS 5 be granted; and this Action be dismissed. These Findings and Recommendations are submitted to U.S. District Judge John A. Mendez; Objections to these F&R due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BHAJAN SINGH BARIANA,

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Plaintiff,

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No. 2:13-cv-0554 JAM CKD PS

v.

ORDER AND

PHIL SERNA, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Defendants’ motion to dismiss came on regularly for hearing June 5, 2013. Plaintiff

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Bariana appeared in propria persona.1 Krista Whitman and Diane McElhern appeared for

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defendants. Upon review of the documents in support and opposition, upon hearing the arguments

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of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS

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FOLLOWS:
In this action, plaintiff alleges that his civil rights were violated in connection with an

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exclusive contract for taxicab services at the Sacramento Airport entered into between the County

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of Sacramento and the Sacramento Independent Taxi Owners Association (“SITOA”). Plaintiff

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asserts that in passing an ordinance that allows for the exclusive contract, Sacramento has

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violated plaintiff’s “basic Equal opportunity right to earn an honest living and the Right to life,

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Plaintiff was accompanied by Mr. Kazman Zaidi, who also addressed the court at the hearing.
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liberty and Pursuit of Happiness.” Complaint at 3:12-13. Defendants move to dismiss.

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Defendants contend that plaintiff fails to state a claim under 42 U.S.C. § 1983, that plaintiff’s

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action is barred by the statute of limitations,2 and that plaintiff has failed to join an indispensible

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party (SITOA).3 Defendants’ first contention is dispositive.

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In considering a motion to dismiss for failure to state a claim upon which relief can be

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granted, the court must accept as true the allegations of the complaint in question, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the pleading in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.

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at 1949.
In ruling on a motion to dismiss pursuant to Rule 12(b), the court “may generally consider

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only allegations contained in the pleadings, exhibits attached to the complaint, and matters

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properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d

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895, 899 (9th Cir. 2007). Defendants have requested this court take judicial notice of documents.

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ECF No. 7. Judicial notice may be properly taken of county codes and resolutions. The request

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will therefore be granted as to Exhibits A, B and E.

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the

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The subject ordinance was passed in 2005.
Defendants contend that SITOA is an indispensible party because plaintiff seeks cancellation of
the contract.
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deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. This section confers no substantive rights. See Baker v. McCollan, 443 U.S.

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137, 140 (1979) (threshhold requirement for section 1983 action is deprivation of right secured by

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the Constitution and laws). In the complaint and opposition, plaintiff fails to identify any

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constitutional right which has been allegedly infringed by defendants. Nor at the hearing did

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plaintiff articulate a right of which he had been deprived, contending only that the ordinance is

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“unfair.”
To the extent plaintiff is trying to allege an equal protection claim, such a claim must fail.

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Because the ordinance is facially neutral and does not impinge on a fundamental right, plaintiff

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must show purposeful discrimination or that he was intentionally treated differently from others

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similarly situated and that there is no rational basis for the difference in treatment. See generally

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City of Cleburne, Tex. v. Cleburne Livig Cntr., 473 U.S. 432 (1985); see also Vacco v. Quill, 521

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U.S. 793, 799 (1997). Plaintiff’s allegation that the ordinance benefits a “cartel” is insufficient to

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raise an equal protection claim. See, e.g. Greater Houston Small Taxicab Company Owners

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Association v. City of Houston, Texas, 660 F.3d 235 (5th Cir. 2011). Because it appears

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amendment would be futile, the motion to dismiss should be granted with prejudice.
Accordingly, IT IS HEREBY ORDERED that defendants’ request for judicial notice

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(ECF No. 7) is granted as to Exhibits A, B and E; and

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IT IS HEREBY RECOMMENDED that:

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1. Defendants’ motion to dismiss (ECF No. 5) be granted; and

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2. This action be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 12, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 bariana0554.57

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