Villegas v. The Department of Motor Vehicles

Filing 7

ORDER TO REASSIGN CASE; AND REPORT AND RECOMMENDATION THAT CASE BE DISMISSED WITH LEAVE TO AMEND. Signed by Judge Paul S. Grewal on February 17, 2012. (psglc1, COURT STAFF) (Filed on 2/20/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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EDWARD E. VILLEGAS,

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Plaintiff,
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v.
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THE DEPARTMENT OF MOTOR VEHICLES, )
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Defendant.
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Case No.: CV 11-05511 PSG
ORDER TO REASSIGN CASE; AND
REPORT AND RECOMMENDATION
THAT CASE BE DISMISSED WITH
LEAVE TO AMEND

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On November 15, 2011, Plaintiff Edward E. Villegas (“Villegas”) proceeding pro se filed a
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complaint and an application to proceed in forma pauperis. Based on the application and the file
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herein,
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IT IS HEREBY ORDERED that this case be reassigned to a District Judge with the
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recommendation that the case be dismissed with leave to amend. 1 A federal court must dismiss an

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in forma pauperis complaint if the complaint is: (1) frivolous; (2) fails to state a claim on which
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relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such
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relief. 2

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This court is ordering reassignment to a District Judge because, absent consent of all parties, a
magistrate judge does not have authority to make case-dispositive rulings. See, e.g., Tripati v.
Rison, 847 F.2d 548, 549 (9th Cir. 1988).
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See 28 U.S.C. §1915(e)(2); Neitzke v. Williams, 490 U.S. 319, 324 (1989).
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Case No.: CV 11-05511 PSG
ORDER TO REASSIGN CASE; AND REPORT AND RECOMMENDATION THAT CASE BE DISMISSED WITH
LEAVE TO AMEND

In the complaint, Villegas alleges that the California Department of Motor Vehicles

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(“DMV”) is violating both the Fifth and Fourteenth Amendments of the United States Constitution

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by refusing to release his driver’s license until he pays a registration fee and registers for a monthly

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class. In 1993, Villegas entered into a plea bargain for driving under the influence (“DUI”) within

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seven years of another DUI offense. 3 As part of the plea bargain, Villegas’ driver’s license was

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suspended for four years. 4 Villegas alleges that by withholding his license, after the four year

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suspension has lapsed, the DMV is violating his “vested and fundamental” right to drive under the

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Fourteenth Amendment, and also subjecting him to additional punishment for the same crime. 5

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Villegas alleges that this violates the Double Jeopardy Clause of the Fifth Amendment. 6 While the

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United States District Court
For the Northern District of California

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complaint primarily relies on the Constitution to assert claims, it fails to provide any non-frivolous

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basis for jurisdiction in federal court. In addition, Villegas’ claims against the DMV may be

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precluded by the Eleventh Amendment. 7

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Generally, a district court must give pro se litigants an opportunity to amend their

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complaint. “[L]eave [to amend] shall be freely given when justice so requires.” 8 A federal court

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also must liberally construe the “inartful pleading” of parties appearing pro se. 9 Accordingly, this

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court recommends that the district judge dismiss the complaint with leave to amend.

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IT IS SO ORDERED.

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Dated:

_________________________________
PAUL S. GREWAL
United States Magistrate Judge

2/17/2012

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Compl. at 1.

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Id.

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Id. at 10-11.

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Id.

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See, e.g., Miller v. Geico Auto Insurer, No. 7:04CV00702, 2005 U.S. Dist. LEXIS 14441 (W.D.
Va. July 19, 2005) (holding that the Virginia DMV is a state agency that is immune from liability
under the 11th Amendment).
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Fed. R. Civ. P. 15(a).

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Hughes v. Rowe, 449 U.S. 5, 9 (1980).

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Case No.: CV 11-05511 PSG
ORDER TO REASSIGN CASE; AND REPORT AND RECOMMENDATION THAT CASE BE DISMISSED WITH
LEAVE TO AMEND