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Bruce v. Perry

August 10, 2009

DEBORHA BRUCE, PLAINTIFF,
v.
ALAN PERRY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION RE DEFENDANTS' MOTION TO DISMISS THE SECOND AMENDED COMPLAINT (Doc. 23)

I. INTRODUCTION

Before the court is a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) brought by Defendants Alan Perry, et al. ("Defendants"). The motion is directed at claims asserted by Plaintiff Deborha Bruce ("Plaintiff") in her Second Amended Complaint ("SAC"). Plaintiff late-filed opposition to the motion on August 5, 2009, to which she attaches a copy of an internal VA policy memorandum concerning prevention of sexual harassment, which states, among other things, that "the VA Director is responsible for eliminating discriminatory practices in the workplace." Doc. 26

II. BACKGROUND

On June 9, 2008, Plaintiff Deborha M. Bruce, proceeding in pro per, filed a Complaint against "Allan Perry/Veterans Affairs/Veterans Medical Center" alleging, among other things, "Assaults, libel, slander, and defamation of character, victimization in a Federal work place, harassments, and intimations [sic]." (Doc. 1 at 1.) On September 18, 2008, Plaintiff filed an "Amendment," which was construed as a First Amended Complaint ("FAC"): I am Deborha Bruce, I hereby request for amendment be set forth in above case, Case should include the following as to Jurisdiction and additional submissions of codes in which cause of action or complaint is being filed: Justifying Jurisdiction, said case defendants are in part/work, of the federal departments in which federal jurisdictions are required in order for case to be heard.

Additional submissions of Codes are as follows: Section. 46. 3. 5. Section 48.8(a). Section 3294. Section 51.7(a) Unruh Civil Rights Act. Section 59.9(a)(1)(2)(4)-(b) Section 460 Section 4680.5 Section 1786.53(a) Section 815.2(a)

Disparate treatment (Quinones v. Department of Defense)

Constitutional Declaration of Rights Evidence code Section 352, 782, 1103 St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993)

Please understand that I am doing my best in trying to represent myself and my knowledge is limited to trying to put this case into all of the codes, which maybe [sic] needed to be applied to this case.

I understand that I may not have made it clear on the bases in which I am filing this case.

Therefore I am requesting that this case be heard upon it's own merits instead of any and all standing laws of this date, for it is unique upon it's [sic] own. I am able to understand that the only way I may receive any kind of justice for these issues is by bringing them forth into your Jurisdiction. The charges/complaints: Libel, Slander, and Assaults on federal property, defamations of my character, victimization in a federal work place, harassments, and intimations in a Federal work place. Disparate Treatment. And being threaten with AWOL for having a Jury Summons.

On April 30, 3009, Defendants' motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction was granted. (Doc. 20.) Plaintiff's tort claims were dismissed without leave to amend, because she had not pled compliance with the Federal Tort Claims Act's ("FTCA"), 28 U.S.C. § 1346, administrative claim presentation requirement, and because the types of tort claims alleged (assault, libel, slander, and defamation) fell within an exception to the CTCA's waiver of sovereign immunity. (Id. at 10-12.) Claims based upon employment discrimination were dismissed as time-barred, although Plaintiff was granted leave to amend to allege equitable tolling. (Id. at 12-15.) Plaintiff's state law claims against the United States were dismissed without leave to amend on the ground that the United States had not waived sovereign immunity. (Id. at 15-18.) Finally, because it was not clear whether Plaintiff intended to file any federal claims against Alan Perry in his individual capacity, Plaintiff was given leave to amend to state a claim under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

Plaintiff filed her SAC on May 7, 2009. (Doc. 21.)

Defendant again moves to dismiss, arguing that the FAC does not adequately allege that Plaintiff is entitled to equitable tolling, nor does the Plaintiff properly plead a valid Bivens claim. Moreover, Plaintiff reasserts tort ...


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