Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harold L. Wilborn v. Janet A. Napolitano

March 25, 2013

HAROLD L. WILBORN,
PLAINTIFF,
v.
JANET A. NAPOLITANO, IN HER OFFICIAL CAPACITY AS SECRETARY,
DEPARTMENT OF HOMELAND SECURITY (CUSTOMS AND BORDER PROTECTION), AGENCY, DEFENDANT.



The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge

ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT [Doc. No. 37]

Presently before the Court is the motion of Defendant Janet A. Napolitano ("Defendant") to dismiss Plaintiff Harold L. Wilborn's ("Plaintiff") second amended complaint ("SAC") for lack of jurisdiction and for failure to state a claim. [Doc. No. 36.] For the reasons below, the Court GRANTS the motion and DISMISSES WITH PREJUDICE the action in its entirety.

BACKGROUND

Plaintiff is employed by the U.S. Customs and Border Patrol law enforcement agency ("the Agency") as a Supervisory Sector Enforcement Specialist. [Doc. No. 36, SAC ¶ 15.] On June 7, 2010, the Agency imposed a 5-day suspension on Plaintiff for unprofessional conduct. [Id.] 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. ¶ 15; Ex. 3.]

Plaintiff filed a petition with the Merit Systems Protection Board ("MSPB"), alleging that the Agency's actions violated the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). [Doc. No. 36, SAC Ex. 1.] The ALJ, and subsequently the full Board, denied his USERRA claims. [Id.] Rather than file a petition for review with the Federal Circuit, Plaintiff filed a petition for review of the MSPB's decision with the Equal Employment Opportunity Commission ("EEOC"). [Id.] On August 25, 2011, the EEOC issued an order determining that it lacked jurisdiction over Plaintiff's petition and denying the petition for review. [Id.]

On September 28, 2011, Plaintiff, proceeding pro se, filed the present action, which alleged the following: (1) violations of 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 Plaintiff's Fifth Amendment rights to due process and equal protection; (5) violation of Plaintiff's 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, slander, and violation of the First and Fifth Amendments to the extent Plaintiff was seeking damages; dismissed without leave to amend Plaintiff's cause of action for violation of Title VII; and dismissed without prejudice Plaintiff's causes of action for violation of the First and Fifth Amendments 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 a First Amended Complaint ("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. [Doc. No. 24, FAC.] On May 21, 2012, the Court dismissed with prejudice Plaintiff's constitutional claims for damages and any claim Plaintiff attempted to bring under the CSRA. The Court declined to dismiss Plaintiff's claims for violation of his First and Fifth Amendment rights for injunctive and declaratory relief. [Doc. No. 29, FAC at 4-5.]

Plaintiff subsequently filed a SAC, attempting to allege several causes of action. [Doc. No. 36, SAC.] Defendant states that Plaintiff asserts 21 claims. [Doc. No. 39, Def.'s Reply at 2.] However, in actuality, many of those "claims" are simply factual allegations or remedies that Plaintiff seeks. The Court construes Plaintiff's SAC to assert the following causes of action: (1) various violations of his First Amendment rights; (2) various violations of his Fifth Amendment rights; (3) various violations of his Sixth Amendment rights; (4) various violations of his Thirteenth Amendment rights; (5) various violations of his Fourteenth Amendment rights; (6) violation of the Civil Rights Act of 1991; (7) violation of Executive Order 11478; (8) violation of the False Claims Act ("FCA"); (9) violation of 18 U.S.C. § 242; and (10) negligence. Plaintiff seeks monetary, injunctive, and declaratory relief. [Doc. No. 36, SAC.]

DISCUSSION

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, 556 U.S. 662, 678 (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. Iqbal, 556 U.S. at 678.

Although pro se complaints enjoy "the benefit of any doubt," Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), the rule of liberal construction "applies only to a plaintiff's factual allegations." Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).The Court also need not accept as true unreasonable inferences or conclusions of law cast in the form of factual allegations. Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). Further, the Ninth Circuit has recognized that a plaintiff does not enjoy unlimited opportunities to amend his or her complaint. See McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir. 1996) (affirming district court's dismissal of the plaintiff's third amended complaint without leave to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.