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Cooper v. Boxer

July 22, 2010

JACK A. COOPER, PLAINTIFF,
v.
U.S. SENATOR BARBARA BOXER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Presently before the court is defendants' (Senator Boxer and FBI Agent-in-Charge Parenti) motion to dismiss, filed June 1, 2010.*fn1 After reviewing the parties' papers, the court now issues the following findings and recommendations.

I. BACKGROUND

This action is proceeding on the amended complaint, filed May 18, 2010.

Plaintiff alleges discrimination and harassment on the job at Tracy Defense Depot where he worked as a shop steward. The allegedly harassing activity occurred while he was assigned to the Light Duty area, where he was under the supervision of Jack Welsh, who is not a defendant.

Under this supervision, as well as upper management supervision of William Arnolfo, also not a defendant, plaintiff alleges he was subject to humiliation, fear and threat of being fired. When plaintiff recovered from the shoulder injury which caused him to be placed under light duty, Arnolfo refused to permit plaintiff to return to his regular job, causing plaintiff to file a handicap discrimination claim. After this filing, Arnolfo used fear and intimidation of plaintiff's witnesses, and Walsh filed false charges of "loafing" against plaintiff. Plaintiff claims that he was told to leave the depot or that they would make him leave in a body bag, and his family was also threatened, even after he left the Tracy Defense Depot. The five page complaint contains only one mention of defendant Boxer: "U.S. Senator Barbara Boxer. Altering and Tampering with Official Documents." (Compl. at 5.) Defendant F.B.I. Special Agent Parenti is only named in the caption of the complaint, and the FBI is only mentioned once: "F.B.I. conspiring to conceal facts and refuse to report civil rights violations." (Compl. at 5.)

Plaintiff seeks relief in the form of an investigation and temporary protection for his family during the investigation.

II. LEGAL STANDARDS

A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).

III. DISCUSSION

Defendants Boxer and Parenti seek dismissal of this action based on lack of subject matter jurisdiction due to lack of standing, sovereign immunity, and the speech or debate clause, (Fed. R. Civ. P. 12(b)(1)), and ...


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