Gallagher v. Napolitano

Filing 6

ORDER granting 5 Defendant's Motion to Dismiss. The Clerk of the Court shall dismiss Defendant Napolitano from this case. ORDER that Plaintiff shall file an amended complaint within 15 days of the date of this Order. If Plaintiff does not comply, the Clerk of the Court shall dismiss this case and enter judgment accordingly. Signed by Senior Judge James A Teilborg on 3/18/13.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kieran M. Gallagher,
Plaintiff,

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ORDER

v.

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No. CV-12-02733-PHX-JAT

Janet A Napolitano, Secretary of the
Department of Homeland Security,

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Defendant.
Pending before the Court is Defendant’s Motion to Dismiss (Doc. 5). The Court
now rules on the Motion.
On December 28, 2012, Plaintiff filed a Complaint in this Court.

In his

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Complaint, Plaintiff alleges that he submitted a request to Defendant pursuant to the

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Freedom of Information Act (“FOIA”) on July 25, 2012, requesting information

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regarding Plaintiff’s past employment with the Federal Air Marshal Service. Plaintiff

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further alleges that, on September 7, 2012, Defendant informed Plaintiff that he needed to

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include an accompanying notarized perjury statement with his request. Plaintiff alleges

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that, on October 3, 2012, Defendant acknowledged that Defendant received the

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conforming request. Plaintiff finally alleges that, as of December 28, 2012, Defendant

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had not otherwise responded to Plaintiff’s request.

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Defendant comply with Plaintiff’s FOIA request.

As relief, Plaintiff seeks that

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On January 28, 2013, Defendant moved to dismiss Plaintiff’s Complaint pursuant

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to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff did not respond to

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the Motion to Dismiss.

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Defendant argues that Defendant Napolitano must be dismissed from this case

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because a Plaintiff may not assert a claim against an individual federal official because

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the proper Defendant is the agency. The Court agrees that Plaintiff has failed to state a

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claim against Secretary Napolitano pursuant to Federal Rule of Civil Procedure 12(b)(6)

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because, in a FOIA action, the proper Defendant is the agency. See Drake v. Obama, 664

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F.3d 774, 785-86 (9th Cir. 2011) (holding that District Court correctly dismissed

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Plaintiffs’ FOIA causes of action for failure to state a claim because all of the Defendants

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were individuals and not agencies).

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The Court will nonetheless allow Plaintiff leave to amend to possibly add a proper

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Defendant. If Plaintiff chooses to amend, he shall include allegations in his complaint

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explaining how FOIA entitles him to relief in this case.

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Based on the foregoing,

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IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 5) is granted. The

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Clerk of the Court shall dismiss Defendant Napolitano from this case.

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IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint

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within 15 days of the date of this Order. If Plaintiff does not file an amended complaint

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within 15 days of the date of this Order, the Clerk of the Court shall dismiss this case and

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enter judgment accordingly.

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Dated this 18th day of March, 2013.

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