The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [Doc. No. 24]
Presently before the Court is Defendant Janet A. Napolitano ("Defendant")'s motion to dismiss Plaintiff Harold L. Wilborn ("Plaintiff")'s first amended complaint ("FAC"). [Doc. No. 24.] For the reasons below, the Court GRANTS IN PART and DENIES IN PART the motion.
Plaintiff is employed by the U.S. Customs and Border Patrol law enforcement agency ("the Agency") as a Supervisory Sector Enforcement Specialist. [Doc. No. 15, FAC Exs. 4-6.] On June 7, 2010, the Agency imposed a 5-day suspension on Plaintiff for unprofessional conduct. [Id. Ex. 6.] Specifically, another Supervisory Sector Enforcement Specialist alleged that Plaintiff pointed his finger at him, glared angrily, and stated "Don't cross me Mark!" and "Make sure you write all of this down, this has EEO all over it. You will be hearing from my lawyer and will probably end up in court." [Id. Ex. 4.]
In the FAC, Plaintiff alleges that the Agency's decision to suspend him for making these remarks violated his First Amendment right to free speech. [FAC ¶¶ 22-23, 28-31.] Plaintiff also alleges that the procedures used during the disciplinary process violated his Due Process rights. [Id.¶¶ 34-51.] Specifically, Plaintiff alleges that the deciding official engaged in improper ex parte communication, falsified the record, and did not consider certain factors in reaching his determination. [Id.]
On September 28, 2011, Plaintiff, proceeding pro se, filed the present action against Defendant Janet A. Napolitano in her official capacity as the Secretary of the Department of Homeland Security alleging causes of action for (1) violations of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"); (2) violations of the Civil Service Reform Act of 1978 ("CSRA"); (3) violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-1 et seq.; (4) violation of his Fifth Amendment rights to due process and equal protection; (5) violation of his First Amendment rights; and (6) slander. [Doc. No. 1, Compl.] On February 2, 2012, the Court granted Defendant's motion to dismiss Plaintiff's complaint. [Doc. No. 14.] Specifically, the Court dismissed with prejudice Plaintiff's causes of action for violation of the USERRA, violations of the CSRA, and slander; dismissed without leave to amend Plaintiff's cause of action for violation of Title VII; dismissed with prejudice Plaintiff's causes of for violation of the First Amendment and the Fifth Amendment to the extent Plaintiff was seeking damages; and dismissed without prejudice Plaintiff's causes of for violation of the First Amendment and the Fifth Amendment to the extent Plaintiff was seeking prospective relief. [Id. at 16.] The Court granted Plaintiff leave to file an amended complaint. [Id.]
On March 2, 2012, Plaintiff filed his FAC alleging causes of action for (1) violation of his freedom of speech rights under the First Amendment; and (2) violation of his due process rights under the Fifth Amendment. [FAC.] By the present motion, Defendant seeks to dismiss Plaintiff's FAC. [Doc. No. 24.]
I. Legal Standards for a Motion to Dismiss
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. FED. R. CIV. P. 12(b)(6);Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face."Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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." Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
However, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). A court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, 129 S. Ct. at 1949.
In addition, factual allegations asserted by pro se plaintiffs, "however inartfully pleaded," are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, and in spite of the deference the court is bound to pay to any factual allegations made, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Nor must the court "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit" or those which are "merely conclusory," require "unwarranted deductions" or "unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citation omitted), amended on other grounds, 275 F.3d 1187 (9th Cir. 2001); see alsoIleto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not accept as true unreasonable inferences or conclusions of law cast in the form of factual allegations).
II. Previously Dismissed Claims
Plaintiff's FAC seeks both damages and prospective relief for his constitutional claims. [FAC ¶ 52.] In addition, Plaintiff's FAC makes reference to CSRA statutory provisions. [See, e.g., id. ¶¶ 16-17, 30-31, 52.] Defendant argues that Plaintiff's CSRA claims and constitutional claims for damages were previously dismissed with prejudice, and ...