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March 19, 2004.

JOHN GILMORE, Plaintiff,
JOHN ASHCROFT, et al, Defendants

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Plaintiff's complaint against federal defendants John Ashcroft, in his official capacity as Attorney General of the United States; Robert Mueller, in his official capacity as Director of the Federal Bureau of Investigation; Norman Mineta, in his official capacity as Secretary of Transportation; Marion C. Blakey, as Administrator of the Federal Aviation Administration, substituted for Jane F. Garvey under Rule 25(d)(1); Admiral James M. Loy, in his official capacity as Acting Undersecretary of Transportation for Security, substituted for John W. Magaw under Rule 25(d)(10; and Tom Ridge, in his official capacity as Chief of the Office of Homeland Security, and against defendant Southwest Airlines is dismissed with prejudice, and plaintiff's complaint against defendant UAL dba United Airlines is dismissed without prejudice. Judgment is entered accordingly.


  Defendants have moved to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted. Having carefully considered the arguments of the parties and the papers submitted, the Court GRANTS the motions to dismiss*fn1 and DENIES plaintiff's request for judicial notice.


  Plaintiff John Gilmore is a California resident who is suing the United States*fn2 and Southwest Airlines for refusing to allow him to board an airplane on July 4, 2002 without either displaying a government-issued identification consenting to a search. Plaintiff alleges that these security requirements imposed by the United States government and effected by the airline companies violate several of his constitutional rights, including his rights under the First and Fourth Amendments.*fn3

  On July 4, 2002 plaintiff went to the Oakland International Airport and attempted to fly to the Baltimore Washington International Airport to "petition the government for redress of grievances and to associate with others for that purpose." Complaint at 2:2-4. Plaintiff approached the Southwest ticket counter with a ticket that he had previously purchased and was asked to provide identification. Complaint at ¶ 25. Plaintiff refused and inquired whether there was any way for him to board the plane without showing identification. He was told by the ticket clerk that he could be screened instead. Id. Plaintiff also asked the clerk if she knew the origin of this requirement. The clerk expressed uncertainty but speculated that the Federal Aviation Administration ("FAA") might have promulgated the identification rule. Id. Plaintiff was told to show identification again when he went to the gate to board the plane. Complaint at ¶ 26. He refused and was not allowed to board the plane. Id. Plaintiff spoke with a supervisor who explained that airline policy prohibited allowing plaintiff to board. Complaint at ¶ 27. Page 3


  The Court may dismiss a complaint when it is not based on a cognizable legal theory or pleads insufficient facts to support a cognizable legal claim. Smilecare Dental Group v. Delta Dental Plan, 88 F.3d 780, 783 (9th Cir. 1996).


  Plaintiff's complaint alleges that as a result of the requirement that passengers traveling on planes show identification and his unwillingness to comply with this requirement, he has been unable to travel by air since September 11, 2001. Plaintiff's complaint asserts causes of action challenging the apparent government policy that requires travelers either to show identification or to consent to a search which involves wanding, walking through a magnetometer or a light pat-down. Whether this is actually the government's policy is unclear, as the policy, if it exists, is unpublished. However, this Court for the purpose of evaluating plaintiff's complaint, assumes such a policy does exist, and reviews plaintiff's complaint accordingly.

  Plaintiff asserts the unconstitutionality of this policy on the following grounds: vagueness in violation of the Due Process Clause; violation of the right to be free from unreasonable searches and seizures; violation of the right to freedom of association; and violation of the right to petition the government for redress of grievances.

  The federal defendants and airline defendant both brought motions to dismiss. As plaintiffs' claims are common to both sets of defendants, this Court treats them collectively. While there are questions about the private defendant's liability as a state actor and about the federal defendants' liability for the private defendant's actions, as this Court has not found plaintiff's ...

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