United States District Court, D. Arizona
Mark D. Davenport, Plaintiff,
United States Department of Homeland Security, Defendant.
G. Campbell, Senior United States District Judge
plaintiff Mark D. Davenport sued Defendants Debra Wheeler,
James Lundquist, and Kirstjen Neilson, Secretary of the
Department of Homeland Security (“DHS”). Doc. 34.
Defendants move to dismiss Plaintiff's second amended
complaint pursuant to Rule 12(b)(1) and (6). Doc. 43. The
motion is fully briefed. Docs. 46, 47. For the following
reasons, the Court will dismiss Plaintiff's second
amended complaint with prejudice.
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 Department of Transportation
(“TSA”). Doc. 34 at 5. Debra Wheeler was involved
in the EEOC case as a TSA human resources specialist.
Id. at 6. According to Plaintiff, his fiancé
experienced discriminatory and retaliatory conduct by TSA,
which Plaintiff opposed through several EEOC complaints and
in proceedings before an Administrative Law Judge.
alleges that Wheeler accessed his fiancé's
personal contact information in TSA's record system
without her consent or department authorization and disclosed
that information to a third party, including his telephone
number and home address. Id. at 6, 7. According to
Plaintiff, Wheeler falsely alleged to federal law enforcement
that Plaintiff had posed as a federal agent, stalked her at
her home, performed a sex act in front of her home, and shot
at her window with a gun. Id. at 6-9. Plaintiff
asserts that Lundquist released his Social Security number,
date of birth, driver's license information, and banking
account information to Wheeler. Id. at 9.
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). Defendants' 12(b)(1)
motion is a facial attack because Defendants, for purposes of
the motion, do not substantially challenge the truth of the
facts alleged in Plaintiff's complaint. Doc. 43.
successful motion to dismiss under Rule 12(b)(6) must show
either that the complaint lacks a cognizable legal theory or
fails to allege facts sufficient to support its theory.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss as
long as it contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (citing 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.” Id., 556
U.S. at 678 (citing Twombly, 550 U.S. at 556). When
analyzing a complaint for failure to state a claim to relief
under Rule 12(b)(6), the well-pled factual allegations are
taken as true and construed in the light most favorable to
the nonmoving party. Cousins v. Lockyer, 568 F.3d
1063, 1067 (9th Cir. 2009). Legal conclusions couched as
factual allegations are not entitled to the assumption of
truth, Iqbal, 556 U.S. at 680, and therefore are
insufficient to defeat a motion to dismiss for failure to
state a claim, In re Cutera Sec. Litig., 610 F.3d
1103, 1108 (9th Cir. 2010).
second amended complaint alleges two Privacy Act violations,
two Title VII violations, and a Fourth Amendment violation.
Doc. 34 at 9-13.
The Privacy Act.
552a(e)(5) of the Privacy Act provides that “[e]ach
agency that maintains a system of records shall maintain all
records which are used by the agency in making any
determination about any individual with such accuracy,
relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in the
determination.” 5 U.S.C. § 552a(e)(5). A plaintiff
may sue for failure to meet this obligation, but, as
Defendants note, the Privacy Act “only permits suits
against an ‘agency,' see 5 U.S.C. §
552a(g)(1), and does not apply to individual
defendants.” Doc. 43 at 4; see Rouse v. U.S. Dept.
of State, 567 F.3d 408, 413 n.3 (9th Cir. 2009); see
Hewitt v. Grabicki, 794 F.2d 1373, 1377 (9th Cir. 1986);
Hurry v. Fin. Indus. Regulatory Auth. Inc., No.
CV-14-02490-PHX-ROS, 2015 WL 11118114, at *7 (D. Ariz. Aug.
5, 2015). Plaintiff asserts violations only against Wheeler
and Lundquist. See Doc. 34 at 9-10.
responds with an extensive elaboration of his factual
allegations and citations to federal law discussing the
Privacy Act, but does not clearly respond to Defendants'
arguments. Doc. 45 at 1-22. Although Plaintiff's Counts 1
and 2 mention only Wheeler and Lundquist, he asserts that he
also named the DHS Secretary in his complaint and seems to
ask the Court to construe Counts 1 and 2 as being alleged
against Secretary Nielsen, as well. See Id. at 2.
But “Plaintiff cannot amend his . . . complaint merely
by discussing unpled claims in a response to a motion to
dismiss.” Piper v. Gooding & Co. Inc., No.
CV-18-00244-PHX-DLR, 2018 WL 924947 (D. Ariz. Feb. 15, 2018).
Nor can the Court look to Plaintiff's proposed amendments
on this issue because Counts 1 and 2 in Plaintiff's
proposed third amended complaint remain unchanged.
See Doc. 46 at 10.
also argue that Plaintiff has failed again to sufficiently
plead pecuniary and economic harm. Docs. 34 at 12, 43 at 7-9,
33 at 4-5; FAA v. Cooper, 566 U.S. 284, 299, 304
(2012). Plaintiff alleges that he has suffered
“monetary damages caused as a result of the stress and
impact on [his] physical health and necessity to retain
counsel, ” and “[p]ecuniary damages for medical
expenses and other costs caused as a direct result of
Defendants' actions.” Doc. 34 at 2, 12. These
general statements are insufficient to ...