United States District Court, D. Arizona
Gary L. Reay, Plaintiff,
State of Arizona, Defendant.
G. Campbell United States District Judge
filed a complaint against Defendant State of Arizona on
September 22, 2017. Doc. 1. Because Plaintiff's proof of
service stated only that service had been completed by
certified mail, the Court directed Plaintiff to complete
proper service. Doc. 13. Plaintiff subsequently filed another
notice that he had served Defendant by mail. Doc. 15.
Defendant moves to dismiss Plaintiff's claims for lack of
proper service and failure to state a claim. Doc. 17.
4(j)(2) of the Federal Rules of Civil Procedure provides that
a State may be served by delivering the summons and complaint
to the State's chief executive officer or by service in
accordance with state law. Arizona Rule of Civil Procedure
4.1(h)(1) provides that the State may be served by delivering
a copy of the summons and complaint to the Attorney General.
Plaintiff has not complied with these rules. Service by mail
is not sufficient when actual delivery is required. Because
Plaintiff is proceeding pro se, the Court normally would
allow additional time to complete service, but in this case
it is clear that Plaintiff's complaint states no viable
claim. The Court therefore will dismiss the action.
complaint challenges Arizona's revocation of his
driver's license (or its refusal to grant him one). Doc.
1. Plaintiff claims a fundamental constitutional right to
hold a driver's license. He also asserts that Arizona
laws must adopt the definitions contained in federal law,
particularly Title 18 of the United States Code. Plaintiff
appears to argue that federal law supersedes all state law,
and that the State has no independent jurisdiction over
driver's licenses and travel. Among other relief,
Plaintiff asks the Court to (1) declare that Arizona cannot
require persons to hold driver's licenses before driving
on its roads, (2) order that State laws on the same subject
matter as any federal law be made to conform to federal law,
(3) enjoin state law enforcement officers from requiring
licenses other than for commercial drivers, and (4) declare
that Plaintiff may drive on all roads and highways of the
State without a license. Id. at 1-4.
has filed a response to the State's motion to dismiss.
Doc. 23. In addition to arguing that the undersigned judge is
biased and should be removed from the case (based on previous
rulings in this case), he argues that federal law preempts
state law as asserted in his complaint, that the State has no
defense to his claim, and that the Court should grant summary
judgment in his favor. Doc. 23.
complaint does not state a viable cause of action. Plaintiff
has no fundamental constitutional right to a driver's
license. “‘The plaintiff's argument that the
right to operate a motor vehicle is fundamental because of
its relation to the fundamental right of interstate travel is
utterly frivolous.'” Miller v. Reed, 176
F.3d 1202, 1206 (9th Cir. 1999) (quoting Berberian v.
Petit, 374 A.2d 791, 794 (R.I. 1977)). Plaintiff simply
“does not have a fundamental ‘right to
Plaintiff correctly claim that all Arizona laws must conform
to federal law. Indeed, federal law is presumed not
to preempt a State's exercise of its traditional police
powers. See Ray v. Atl. Richfield Co., 435 U.S. 151,
157 (1978). Certainly the regulation of driving falls within
historical state police powers. See United States v.
Snyder, 852 F.2d 471, 475 (9th Cir. 1988)
(“Drivers' licenses are issued pursuant to the
states' police powers, and the federal government has no
constitutional authority to interfere with a state's
exercise of its police power.”); United States v.
Thurman, 316 F. App'x 599, 602 (9th Cir. 2009)
(“Thurman cites no authority to support his contention
that federal courts can intercede in state driver's
licensing matters. Ninth Circuit law is clear that we do not
have the power to do so.”).
pro se litigant must be given leave to amend his or her
complaint unless it is absolutely clear that the deficiencies
of the complaint could not be cured by amendment.”
Karim-Panahi v. LA. Police Dep't, 839 F.2d 621,
623 (9th Cir. 1988) (citing Noll v. Carlson, 809
F.2d 1446, 1448 (9th Cir.1987)). In light of the law cited
above and many other cases to the same effect, the Court
finds it absolutely clear that Plaintiff cannot state a
viable claim to eliminate Arizona's driver's license
requirement. The Court therefore will dismiss this action
without leave to amend.
1. Defendant's motion to dismiss (Doc. 17) is
2. Plaintiffs motion/request for Court (Doc. 14) is
denied as moot.
3. Plaintiffs motion for summary judgment (Doc. 23) is
denied as moot.
4. This case is dismissed without leave to amend. The Clerk
is directed to ...