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Davenport v. United States Department of Homeland Security

United States District Court, D. Arizona

November 26, 2018

Mark D. Davenport, Plaintiff,
United States Department of Homeland Security, Defendant.



         Pro se plaintiff Mark D. Davenport sued the United States, alleging various tort, constitutional, and statutory claims. Doc. 16. Defendant moves to dismiss Plaintiff's first amended complaint pursuant to Rule 12(b)(1) and (6). Doc. 18. The motion is fully briefed, and no party requests oral argument. Docs. 26, 29. For the following reasons, the Court will dismiss Plaintiff's first amended complaint without prejudice.[1]

         I. Background.

         Plaintiff alleges that he began participating in an Equal Employment Opportunity Commission (“EEOC”) case in April 2015 as a non-attorney representative for his fiancé, a former employee of the Transportation and Security Administration (“TSA”). Doc. 16 at 2. Debra Wheeler was also involved in the EEOC case, as a TSA human resources specialist. Id. Plaintiff alleges that Wheeler retaliated against him and interfered with the EEOC case by falsely alleging that he stalked and harassed her and shot at her window with a gun (id. at 3-5), releasing his private and personally identifiable information to third parties (id. at 3), sending federal agents to his home to interrogate him about the false allegations (id.), and negligently and intentionally defaming and slandering him (id. at 5-6). Plaintiff's first amended complaint refers to the Federal Tort Claims Act (“FTCA”), the First and Fourth Amendments, 5 U.S.C. § 552, 18 U.S.C. § 1001(a), 42 U.S.C. § 1983, and sections of the TSA employee code of conduct. Id. at 7-8. Defendant argues that the Court lacks subject matter jurisdiction over Plaintiff's claims and that Plaintiff fails to state a claim for relief. Doc. 18.

         II. Legal Standard.

         “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. “In a facial attack, the challenger asserts that the allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction.” Id. “The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).

         III. Analysis.

         Defendant's motion makes a facial attack on Plaintiff's complaint. The motion does not substantially challenge the truth of the facts alleged. See Doc. 18. Thus, under 12(b)(1), the Court will accept the alleged facts as true.

         A. Federal Tort Claims Act.

         The FTCA provides a limited waiver of the government's sovereign immunity for certain tort claims. 28 U.S.C. § 1346(b); United States v. S.A. Empresea de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 807-08 (1984). But the government remains immune from suits for “[a]ny claim arising out of . . . malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h).

         In Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990), the Ninth Circuit explained that “§ 2680(h) bars suit for claims based on conduct which constitutes one of the excepted torts, and bars suit for no other claims.” Id. at 1171. The government's alleged conduct, then, is the touchstone for determining whether § 2680(h) bars Plaintiff's claims. If Defendant's alleged conduct constitutes one of the torts listed in § 2680(h), dismissal is required.

         Defendant argues that Plaintiff's allegations about Wheeler are based on libel, slander, and misrepresentation, and are thus barred under § 2680(h). Doc. 18 at 5-6. Plaintiff reiterates the factual bases for his claims and cites various federal and state statutes and cases, but he does not meaningfully respond. See Doc. 26. Among his allegations, Plaintiff states that Wheeler:

intentionally, negligently and in bad faith, attempted[ed] to “frame-up” Plaintiff; [made] malicious, intentional, false and negligent publications, which did defame and slander Plaintiff, causing him extreme anxiety, humiliation, worry fear and emotional duress; [and] falsely alleg[ed] Plaintiff was seen performing sex act . . . [and that Plaintiff] caused damage to a window of [Wheeler's] home.

Doc. 16 at 3-4. Plaintiff also alleges that “Wheeler's contrived and negligent allegations, . . . [caused Plaintiff to] suffer extreme embarrassment, anxiety, humiliation, worry, fear and emotional duress” (id. at 3), and that Wheeler's actions “were negligent and done intentionally with malice to cause ...

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