(PS) Louie v. Rikala, No. 2:2009cv01709 - Document 15 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 9/10/2009 RECOMMENDING that 5 defendants' motion to dismiss be granted and this action be dismissed; Referred to Judge John A. Mendez; Objections due ten days after being served with these F & R's. (Reader, L)

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(PS) Louie v. Rikala Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GEORGE LOUIE, 11 12 13 14 15 Plaintiff, No. CIV S-09-1709 JAM KJM PS vs. STEVE RIKALA, et al., Defendants. FINDINGS AND RECOMMENDATIONS / 16 Defendants’ motion to dismiss came on regularly for hearing September 2, 2009. 17 Plaintiff appeared in propria persona. Ronald Scholar appeared for defendants. Upon review of 18 the documents in support and opposition, upon hearing the arguments of plaintiff and counsel, 19 and good cause appearing therefor, THE COURT FINDS AS FOLLOWS: 20 In this action, plaintiff alleges his due process rights were denied in connection 21 with his application to the City of West Sacramento for a cannabis club. Defendants move to 22 dismiss, contending this action is both moot and unripe. 23 Defendants assert this action is moot because the City of West Sacramento has 24 passed an ordinance establishing a temporary moratorium on the establishment of medical 25 marijuana dispensaries. In light of the temporary nature of the moratorium, the court will not 26 recommend dismissal on mootness grounds. 1 Dockets.Justia.com 1 Defendant also contends this action is unripe because plaintiff has not yet 2 submitted a completed application and has not sought a waiver of the permit fee from the City 3 Council. This argument is well-taken. Plaintiff submitted as an exhibit to the complaint a letter 4 from the City Planner advising plaintiff that any waiver of the permit fee must be approved by 5 the City Council. Plaintiff presents no evidence that he has submitted complete plans or sought a 6 permit fee waiver, and conceded at the hearing that he has not yet done so. As such, this action is 7 not ripe for adjudication. See Manufactured Home Communities, Inc. v. City of San Jose, 420 8 F.3d 1022, 1033 (9th Cir. 2005) (due process cannot be denied where no due process is pursued). 9 10 Accordingly, IT IS HEREBY RECOMMENDED that defendants’ motion to dismiss be granted and this action be dismissed. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten 13 days after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections 16 shall be served and filed within ten days after service of the objections. The parties are advised 17 that failure to file objections within the specified time may waive the right to appeal the District 18 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 DATED: September 10, 2009. 20 21 22 23 24 25 006 26 louie.oah 2

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