United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
motion to dismiss came on regularly for hearing on June 15,
2016. Plaintiff Mazen Khenaisser appeared in propria persona.
Chi Soo Kim appeared for defendants. Upon review of the
documents in support and opposition, upon hearing the
arguments of plaintiff and counsel, and good cause appearing
therefor, THE COURT FINDS AS FOLLOWS:
action, plaintiff alleges claims of discrimination arising
out of his employment as a civil engineer in the Bureau of
Reclamations Design and Construction Division, Mid-Pacific
Region. This matter was previously heard on defendants’
motion to dismiss, which was granted with leave to amend as
to certain claims. ECF No. 29. Plaintiff filed a first
amended complaint on March 11, 2016. ECF No.
Defendants move to dismiss the amended complaint with
prejudice, contending that this court lacks subject matter
jurisdiction over certain claims and that the remaining
claims are subject to dismissal under Federal Rule of Civil
Procedure 12(b)(6). ECF No. 32.
first amended complaint, plaintiff alleges a claim for
defamation, arising in part from allegations made by agency
employees that plaintiff put his fist in a manager’s
face. ECF No. 30 at p. 20, ¶ 10(d). Plaintiff also
alleges defamation of character and that he was slandered by
an employee “putting words in my mouth.” ECF No.
30, ¶¶ 3(b), 4(c), 5(c), 6(a), 10(b), 10(g), 10(h),
12(f). Defendant moves to dismiss for lack of subject matter
jurisdiction plaintiff’s claim for defamation.
Defendant contends this court lacks jurisdiction because the
United States has not waived sovereign immunity over such a
claim. This contention is correct.
Rule of Civil Procedure 12(b)(1) allows a defendant to raise
the defense, by motion, that the court lacks jurisdiction
over the subject matter of an entire action or of specific
claims alleged in the action. “A motion to dismiss for
lack of subject matter jurisdiction may either attack the
allegations of the complaint or may be made as a
‘speaking motion’ attacking the existence of
subject matter jurisdiction in fact.” Thornhill
Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594
F.2d 730, 733 (9th Cir. 1979).
Rule 12(b)(1) motion attacks the existence of subject matter
jurisdiction in fact, no presumption of truthfulness attaches
to the plaintiff’s allegations. Thornhill
Publ’g Co., 594 F.2d at 733. “[T]he district
court is not restricted to the face of the pleadings, but may
review any evidence, such as affidavits and testimony, to
resolve factual disputes concerning the existence of
jurisdiction.” McCarthy v. United States, 850
F.2d 558, 560 (9th Cir. 1988). When a Rule 12(b)(1) motion
attacks the existence of subject matter jurisdiction in fact,
plaintiff has the burden of proving that jurisdiction does in
fact exist. Thornhill Publ’g Co., 594 F.2d at
a waiver, sovereign immunity shields the United States and
its agencies from suit. See Loeffler v. Frank, 486
U.S. 549, 554 (1988). Sovereign immunity is jurisdictional in
nature. See United States v. Mitchell, 463 U.S. 206,
212 (1983) (“It is axiomatic that the United States may
not be sued without its consent and that the existence of
consent is a prerequisite for jurisdiction”). This
court has jurisdiction over plaintiff’s claims against
the United States for defamation only where there is an
express waiver of sovereign immunity. See United States
v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992).
the Federal Torts Claims Act (“FTCA”), 28 U.S.C.
§ 2680(h), any claims for libel, slander,
misrepresentation or deceit are expressly excluded from the
general waiver of sovereign immunity for tort claims.
See 28 U.S.C. § 2674(b) (“The United
States [is] liable ... in the same manner and to the same
extent as a private individual under like
circumstances.”); see also 28 U.S.C. §
1346(b)(1) (conferring original jurisdiction on district
court over tort claims). Accordingly, plaintiff’s
defamation claims are barred in this court and must be
dismissed without leave to amend. See Thomas-Lazear v.
F.B.I., 851 F.2d 1202, 1206-1207 (9th Cir. 1988)
(slander and libel claims barred under 28 U.S.C. §
2680(h) dismissed without leave to amend).
also moves to dismiss the amended complaint for failure to
state a claim. In considering a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted, the court must
accept as true the allegations of the complaint in question,
Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and
construe the pleading in the light most favorable to the
plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. 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.” Iqbal, 556 U.S. at 678.
first amended complaint (ECF No. 30), plaintiff names as a
defendant Benjamin Wagner, United States Attorney. No
allegations are made against this defendant in the body of
the complaint. As noted in the prior findings and
recommendations (ECF No.24), which were adopted by the
District Court (ECF No. 29), the only properly named
defendant is defendant Sally Jewell, the Secretary of the
Interior, in her official capacity. See 42 U.S.C.
§ 2000e-16(c) (Title VII); 29 U.S.C. § 794a(a)(1);
Vinieratos v. United States, 939 F.2d 762, 772 (9th
Cir. 1991). As such, defendant Benjamin Wagner should be
dismissed with prejudice.
amended complaint, plaintiff has restated his claims for
disability discrimination. However, the first amended
complaint does not cure the deficiencies this court found in
the original complaint. Plaintiff’s disability claim is
premised on “back discomfort” allegedly caused by
improper seating arrangements. Such a claim falls far short
of the requirement under section 501 of the Rehabilitation
that plaintiff have a physical or mental impairment that
substantially limits one or more of the major life activities
in order to state a claim under that Act. See Walton v.
U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007);
42 U.S.C. §§ 12112(a), 12102; 29 U.S.C. §
705(9)(B); 29 C.F.R. § 1630.2(g).
amended complaint also reprises plaintiff’s
discrimination claims on the basis of religion, national
origin and race. Again, as with the original complaint,
plaintiff fails to establish a prima facie case under Title
VII. See Leong v. Potter, 347 F.3d 1117, 1124 (9th
Cir. 2003) (to state a prima facie discrimination
claim, plaintiff must show he belongs to protected class, was
qualified for position, subjected to adverse employment
action, and similarly situated individuals outside protected
class were treated more favorably). The amended complaint
alleges discrimination on the basis of religion (non-Jewish)
but does not allege any discrimination based on religion
other than alleging that the Branch Chief collaborated with
another Jew because they went to the same synagogue together.
This conclusory allegation does not set forth a sufficient
basis for religious discrimination. Similarly, the amended
complaint sets forth no allegations related to national
origin. Also deficient are the allegations relating to racial
discrimination in which plaintiff alleges that the Branch
Chief is a racist because the Branch Chief responded to
plaintiff’s Union grievance by informing plaintiff that
discrimination was an EEO matter and was excluded from
contract. In sum, all of plaintiff’s discrimination
claims contain only conclusory allegations which are
insufficient to support a claim for discrimination on the
basis of religion, national origin and race.
claim for retaliation is similarly deficient. Plaintiff
asserts that the Branch Chief retaliated against plaintiff by
subjecting him to “Direct Orders” which provided
instruction of weekly substantive work tasks and allocated
plaintiff’s time between these tasks. To establish a
prima facie case of retaliation, plaintiff must show that he
engaged in statutorily protected activity, that an adverse
employment action was thereafter taken against him, and a
causal link between the two events. See Villiarimo v.