The opinion of the court was delivered by: VAUGHN WALKER, District Judge
Before the court are plaintiff's motion for reconsideration (Doc #
27), plaintiff's petition for entry of default (Doc # 41), a motion to
dismiss (Doc # 33) filed by Robert Mueller III, J W Lawrence, Craig
Jacobsen, Stephen Meagher, Barbara Valliere and the United States
(collectively, the "federal defendants") and plaintiff's response (Doc ##
29-30) to the court's order to show cause (Doc # 26). According to the
analysis below, the court DENIES plaintiff's motion for reconsideration
(Doc # 27), DENIES plaintiff's petition for entry of default (Doc # 41)
and GRANTS the federal defendants' motion to dismiss (Doc # 33) and
concludes that plaintiff has failed to discharge the court's order
to show cause.
On March 26, 2003, the court dismissed plaintiff's complaint in the
above-captioned case. Doc # 26. The court dismissed with prejudice all
claims based on defendant's conduct in plaintiff's criminal prosecution.
The court dismissed without prejudice any claims based on defendant's
administrative or investigative conduct. The court further dismissed
without prejudice any tort claims unrelated to plaintiff's criminal
conduct. Plaintiff was given leave to file an amended complaint on or
before May 15, 2003. Finally, the court ordered plaintiff to show cause
why the action should not be dismissed for failure to serve a number of
Plaintiff filed a first amended complaint ("FAC") on July 18, 2003. FAC
(Doc # 32). The court notes that plaintiff failed to name each of the
defendants in the caption to the complaint, but merely wrote "Robert S.
Mueller, III et al." Naming each party in the caption of the complaint is
required under the Federal Rules of Civil Procedure. See FRCP 10(a). In
broadly construing plaintiff's pro se complaint, the court looks to the
body of the complaint to determine whom the plaintiff intended to name as
defendants. See Haines v. Kerner, 404 OS 519, 520 (1972) ("We
[hold] allegations of the pro se complaint * * * to less strict
standards than formal pleadings drafted by lawyers."). //
The federal defendants move the court to dismiss plaintiff's FAC on
three grounds. First, the federal defendants argue that plaintiff's
failure to file the FAC within the time period described by the court
suffices for dismissal with prejudice for failure to prosecute under FRCP
41(b). Defs Mot (Doc # 33) at 3. Second, the federal defendants argue
that plaintiff has not alleged unlawful conduct, or in other words,
plaintiff has failed to state a claim upon which relief may be granted.
Id. at 4. Finally, the federal defendants contend that plaintiff has not
alleged that plaintiff complied with the administrative claim
presentation requirements of 28 U.S.C. § 2675(a) in order to proceed
with a tort claim against the federal government and its employees. Id.
Because the court finds the second ground sufficient to dismiss
plaintiff's FAC, the court does not reach the other two grounds.
Under FRCP 12(b)(6), dismissal is proper if the complaint fails "to
state a claim upon which relief can be granted." The court must accept
the factual allegations as true and construe them in the light most
favorable to the plaintiff. Broam v. Bogan, 320 F.3d 1023, 1028
(9th Cir 2003). Although a plaintiff is not held to a "heightened
pleading standard," the plaintiff must provide more than mere "conclusory
allegations." Swierkiewicz v. Sorema NA, 534 U.S. 506, 515 (2002)
(rejecting heightened pleading standards); Schmier v.
United States Court of Appeals for the Ninth Circuit, 279 F.3d 817,
820 (9th Cir 2002) (rejecting conclusory allegations). A
motion to dismiss must be denied "unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957).
"[A] district court should grant leave to amend even if no request to
amend the pleading was made, unless it determines that the pleading could
not possibly be cured by the allegation of other facts." Lopez v
Smith, 1122, 1127 (9th Cir 2000). The district court has broad
discretion, however, to deny leave to amend after the first amendment of
the complaint. See Wagh v. Metris Direct, Inc., 348 F.3d 1102,
1111 (9th Cir 2003).
The court agrees with the federal defendants that "it is difficult to
construe the claims set forth in the amended complaint." Defs Mot (Doc #
33) at 4:6-7. The court, however, must attempt to construe the FAC to
determine whether a claim for which relief can be granted has been stated
and thus begins its task.
Plaintiff pleads three causes of action in his FAC. The first cause of
action appears to have two primary factual components. The first is the
existence of a "lien" and the second is the creation of a "fictitious
business entity." See FAC (Doc # 32) at II 24-26. Plaintiff appears to
claim that the federal defendants obtained a "lien" on plaintiff's
liberty and property during plaintiff's criminal prosecution, conviction
and incarceration. Id. at II 24-26, 33 & Prayer II 1-2. Plaintiff
also claims that the federal defendants created a fictitious ...