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Anderson v. Does

United States District Court, S.D. California

September 23, 2019

LISA ANDERSON, Plaintiff,
v.
DOES 1-6; MARK HELD, METROPOLITAN TRANSIT SYSTEM - S.D.T.C; GREGORY WILLIAMS, TRANSDEV SERVICE, INC., Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. NO. 29)

          John A. Houston United States District Judge

         INTRODUCTION

         Pending before the Court is Defendant Transdev Services, Inc.'s ("Defendant") motion to dismiss Plaintiff Lisa Anderson's ("Plaintiff) First Amended Complaint (the "FAC"). Doc. No. 29. The motion is unopposed. After careful consideration of the pleadings, and for the reasons set forth below, Defendant's Motion to Dismiss is GRANTED.

         BACKGROUND

         On September 14, 2018, pro se Plaintiff Lisa Anderson filed an action against Defendants Does 1-6, Mark Held, Metropolitan Transit System-S.D.T.C, Gregory Williams, and Transdev Service, Inc., alleging "deprivation of civil rights secured by the First, First, and Fourteenth Amendment" and intentional infliction of emotional distress (the "Complaint"). Doc. No. 1. Plaintiff claims that unidentified bus drivers mocked her, made noises at her while she was on the street or on the bus, and used excessive force on the Plaintiff. Id. at pg. 3. On January 2, 2019, Defendant filed a motion to dismiss the Complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doc. No. 11. On March 4, 2019, this Court granted Defendant's motion, with leave to amend within thirty (30) days. Doc. No. 17.

         Plaintiff filed the FAC on April 4, 2019. Doc. No. 18. Defendant filed a motion to dismiss the FAC pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure on May 31, 2019. Doc. No. 29. Plaintiff has not responded to Defendant's motion.

         DISCUSSION

         I. Legal Standard

         A. Federal Rule of Civil Procedure 12(b)(1)

         Under 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek to dismiss a complaint for lack of jurisdiction over the subject matter. The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 95 (1998). When considering a Rule 12(b)(1) motion to dismiss, the district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). In such circumstances, "[n]o presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (quoting Thornhill Publishing Co. v. General Telephone & Electronic Corp., 594 F.2d 730, 733 (9th Cir. 1979)). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

         To effectively state a claim for a civil rights violation under Section 1983, the claimant must allege: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). A person "acting under the color of state law" in violation of Section 1983 requires a defendant to exercise power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Id. at 49.

         "Ordinarily, a pro se complaint will be liberally construed and will be dismissed only if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (internal quotes omitted). However, "[v]ague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         B. Federal Rule of Civil Procedure 12(b)(6)

         A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block,250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory. Li v. Kerry,710 F.3d 995, 999 (9th Cir. 2013). "To survive a motion to dismiss, 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,556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570 (2007)). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In other words, "the non-conclusory 'factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556 ...


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