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Peter Graves v. Eric Holder

September 1, 2011



This case, in which plaintiff is proceeding in propria persona and in forma pauperis, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Eastern District of California Local Rule 302(c)(21). Currently pending before the undersigned are defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1), 12(b)(6), and 56, Dckt. No. 21, and various miscellaneous motions filed by plaintiff, including motions for summary judgment, Dckt. Nos. 19, 20, 24, 27-29, 32-34, 44-45, 48-52, 54-55, 58-61, 65-66. For the reasons stated herein, the undersigned recommends that defendant's motion to dismiss be granted without leave to amend and plaintiff's motions for summary judgment and other miscellaneous motions be denied as moot.


Plaintiff's complaint against Eric Holder, the Attorney General of the United States, alleges that plaintiff "suffered gross negligence" by the Equal Employment Opportunity Commission ("EEOC") during proceedings related to plaintiff's employment discrimination claim against the State Department in which plaintiff received an adverse ruling from the EEOC, and by the Department of Justice ("DOJ"), who plaintiff alleges failed to regulate the "EEOC courtrooms." Compl., Dckt. No. 1 at 1; see also Ex. 5 at 2. Essentially, plaintiff alleges that complainants before the EEOC, including plaintiff, are denied their 1st, 7th, 8th, and 14th Amendment rights in proceedings before the EEOC, and that the DOJ is ultimately responsible for that denial since the DOJ breached its duty to ensure that plaintiff's constitutional rights were not violated during the EEOC process. Id. Plaintiff's complaint also alleges that federal employers, such as the DOJ, unconstitutionally use an individual's credit rating and student loan payment information as a means for employment. Id. at 2.

Plaintiff's complaint requests that the court require the DOJ to force federal employers and the EEOC to uphold plaintiff's 7th, 8th, and 14th Amendment rights. Id. Specifically, plaintiff wants the court to require the DOJ to (1) prevent discrimination by federal agencies through regular audits, (2) enforce equality measures with the EEOC system to ensure complainants receive fair hearings, (3) enforce "'transparency' of equality within the EEOC system," and (4) immediately suspend the provision of federal funds to the EEOC and federal agencies who do not comply with the 14th Amendment. Id. Plaintiff requests that the court require the DOJ to implement various rules and regulations suggested by plaintiff.*fn1 Id. at 10-13.


Defendant now moves to dismiss plaintiff's complaint for lack of subject matter jurisdiction and for failure to request legally cognizable relief, arguing that "this Court has no supervisory jurisdiction over executive branch investigations" and that "Plaintiff cannot satisfy his burden in demonstrating otherwise." Mot., Dckt. No. 21-1 at 9. Defendant also argues that "[t]o the extent this action is construed as a constitutional claim against the Attorney General under Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S. 388, 396 (1971), it is barred by sovereign immunity and must be dismissed." Id. Further, "[t]o the extent it is construed as a tort claim under the Federal Torts Claim Act, it must be dismissed for lack of subject matter jurisdiction as plaintiff failed to exhaust his statutorily-required administrative remedies." Id. Plaintiff opposes the motion. Pl.'s Opp'n, Dckt. No. 26.*fn2

A. Legal Standards Under 12(b)(1)

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . ." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, (1994) (internal citations omitted). Rule 12(b)(1) allows a party to seek dismissal of an action where federal subject matter jurisdiction is lacking. "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir.2001).

A party may seek dismissal for lack of jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge, the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). "In such circumstances, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)).

B. Legal Standards Under 12(b)(6)

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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. 235-236 (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, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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 Hosp. Trs., 425 U.S. 738, 740 (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, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

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. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed ...

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