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Cooper v. Welsh

September 30, 2010

JACK A. COOPER, PLAINTIFF,
v.
JACK R. WELSH, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Presently before the court is defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 (Dkt. No. 5.) The court heard this matter on its law and motion calendar on September 30, 2010. Assistant United States Attorney Bobbie J. Montoya appeared on behalf of defendant. Plaintiff, who is proceeding without counsel, appeared on his own behalf.

Plaintiff previously filed a document entitled "Response to defendants [sic] motion for dismissal" that the undersigned construes as a statement of non-opposition to defendant's motion to dismiss. (Dkt. No. 6.) Although plaintiff has no objection to the dismissal of his claims without prejudice, the undersigned will, as discussed below, recommend that defendant's motion be granted and that plaintiff's claims against defendant be dismissed with prejudice.

I. BACKGROUND

On August 4, 2010, plaintiff filed his complaint, which states, in its entirety: While working for Tracy Defense Depot in Tracy California, Mr. Welsh as immediate Supervisor, with malicious intent, created a Hostile work environment, Conspired with others to violate plaintiff's civil rights law. Title.18 USC, SECTION 241 Conspiring against Civil Rights. RELIEF--Three Hundred and forty two thousand dollars. ($342000.00) (Compl. at1, Dkt. No. 1.)

On August 24, 2010, defendant filed his motion to dismiss plaintiff's complaint. Although defendant contends that plaintiff has not yet sufficiently served the Federal government pursuant to Federal Rule of Civil Procedure 4(i) (see Def.'s Mot. to Dismiss at 5-6; Bain Decl. ¶¶ 4-5), he moves to dismiss the complaint pursuant to Rule 12(b)(6) on two other grounds. First, defendant contends that plaintiff's hostile work environment claim should be dismissed with prejudice as to him because the Secretary of Defense, and not defendant, is the only proper defendant with respect to such a claim. Second, defendant argues that plaintiff's complaint should be dismissed with prejudice to the extent it attempts to seek civil damages for a claim of a violation of 18 U.S.C. § 241, which is a criminal conspiracy statute.

Plaintiff subsequently filed a two-page "Response to defendants [sic] motion for dismissal" ("Response"). In his Response, plaintiff states the following: "At this time, I wish to wave [sic] my rights to civil action without prejudice against Mr. Jack R. Welsh." (Pl.'s Response at 1.) Plaintiff's Response also includes a request for a referral for the criminal investigation and prosecution of defendant and another alleged co-conspirator who is not named as a defendant here. Plaintiff's request states, in part:

With the permission of the courts, I wish to appeal to the courts and have my Complaint submitted to the U.S. District Attorney's Office and the Federal Grand Jury for an investigation and confinement in Federal prison on Criminal Racketeering, RICO Act of 1970, Conspired while employed civil service, within the Department of Defense, Federal Reservation (Tracy Defense Depot) Tracy California. (Id.) Plaintiff's Response further elaborates on the findings of his "preliminary investigation" into the alleged underlying criminal violations. (Id. at 1-2.)

In his reply brief, defendant states that he construes plaintiff's Response as a statement of non-opposition to the motion to dismiss. (Def.'s Reply Br. at 1, Dkt. No. 7.) He contends, however, that plaintiff's complaint should be dismissed with prejudice for the reasons stated in his motion to dismiss. Defendant also argues that to the extent plaintiff is seeking mandamus relief with respect to plaintiff's request for an investigatory referral to the "U.S. District Attorney's Office and the Federal Grand Jury," relief in the form of an order compelling an investigation or prosecution is not available.

In regards to plaintiff's request for referral for investigation or prosecution, defendant requests that the court take judicial notice of a previous lawsuit filed by plaintiff against United States Senator Barbara Boxer and FBI Agent Drew Parenti, Cooper v. Boxer, et al., No. 2:10-cv-00251 JAM GGH PS (E.D. Cal.), in which plaintiff sought, and was denied, relief in the form of a referral for investigation and temporary protection for his family. (Reply Br. at 2-3 & n.1; see also Exs. A-C to Reply Br.) Although not necessarily dispositive of the issues presently before the court, the court will grant defendant's request for judicial notice of its own court files. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) ("We may take judicial notice of court filings and other matters of public record."); Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995) ("In deciding whether to dismiss a claim under Fed.R.Civ.P. 12(b)(6), a court may look beyond the plaintiff's complaint to matters of public record.").

II. LEGAL STANDARDS

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). "'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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949).

The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider ...


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