Malnes v. United States Department of Education et al

Filing 64

ORDER: IT IS THEREFORE ORDERED granting Defendants' Motion to Dismiss 47 and dismissing Plaintiff's claims against Defendants with prejudice;denying Plaintiff's Motion to Strike 49 ; denying Plaintiff's Motion for Sanctions [50 ]; denying Plaintiff's Motion for Extension of Time to Complete Discovery 51 ; granting Defendants' Motion to Strike 57 and striking Plaintiff's Second Amended Complaint 55 . IT IS FURTHER ORDERED that, because all of Plaintiff's claims against Defendants are dismissed with prejudice, the Clerk shall enter final judgment and close this matter. Signed by Judge John J Tuchi on 6/30/2017. (REK)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Edward Malnes,

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Plaintiff,

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ORDER

v.

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No. CV-16-08128-PCT-JJT

United States Department of Education,
et al.,

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Defendants.

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At issue are Defendants’ Motion to Dismiss (Doc. 47), in response to which pro se

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Plaintiff Brian Malnes filed a Motion to Strike (Doc. 49), Motion for Sanctions (Doc. 50),

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and Motion for Extension of Time to Complete Discovery (Doc. 51). Defendants

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responded to Plaintiff’s Motions collectively (Doc. 54), and Plaintiff then filed a second

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Amended Complaint (Doc. 55). Defendants moved to strike the second Amended

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Complaint (Doc. 57), to which Plaintiff filed a Response (Doc. 58), and Defendants filed

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a Reply (Doc. 60). Two months after these Motions were fully briefed, Plaintiff filed a

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Statement of Facts (Doc. 61). The Court deems these matters appropriate for resolution

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without oral argument. See LRCiv 7.2(f).

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I.

BACKGROUND

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Plaintiff filed the Complaint in this action on June 17, 2016 (Doc. 1), claiming

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Defendants are liable for violations of the Federal Tort Claims Act (FTCA) and the

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Family Educational Rights and Privacy Act (FERPA) for the manner in which the

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Department of Education’s Office of Civil Rights and Family Policy Compliance Office

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handled his claims to those Offices. The Court granted Defendants’ Motion to Dismiss

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Plaintiff’s claims in an Order (Doc. 41) and subsequent hearing (Doc. 44), but permitted

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Plaintiff to file an Amended Complaint.

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In the Amended Complaint (Doc. 45), Plaintiff brings claims under several

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sections of the United States Criminal Code as well as Bivens v. Six Unknown Named

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Agents, 403 U.S. 388 (1971), based on the same allegations as the Complaint contained.

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The Court now addresses Defendants’ Motion to Dismiss (Doc. 47) the Amended

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Complaint, as well as the four Motions that followed (Docs. 49, 50, 51, 57).

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II.

MOTION TO DISMISS AMENDED COMPLAINT

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A complaint must include “only ‘a short and plain statement of the claim showing

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that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the

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. . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Fed. R. Civ.

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P. 8(a). A dismissal under Rule 12(b)(6) for failure to state a claim can be based on either

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(1) the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable

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legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “While a

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complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a

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plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action

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will not do.” Twombly, 550 U.S. at 555 (citations omitted). The complaint must thus

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contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is

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plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

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U.S. at 570).

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Plaintiff did not file a Response to Defendants’ Motion to Dismiss (Doc. 47), even

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though the Court entered an Order (Doc. 48) specifically requiring Plaintiff to file a

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Response by April 10, 2017, and noting that Plaintiff’s failure to file a responsive

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memorandum to the Motion to Dismiss would result in the summary granting of

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Defendants’ Motion. By filing a Motion to Strike, Motion for Sanctions, and Motion for

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Extension of Time to Complete Discovery, but no Response to the Motion to Dismiss,

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Plaintiff did not meet any of Defendants’ substantive arguments. Defendants are thus

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entitled to summary disposition of the Motion to Dismiss under Local Rule 7.2(i). Indeed,

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as the Court discusses more fully below, Plaintiff subsequently filed another Amended

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Complaint (Doc. 55) that no longer contained the claims identified in the prior Amended

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Complaint (Doc. 45)—a constructive concession that Plaintiff failed to state a claim in

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the Amended Complaint. Nonetheless, considering Plaintiff’s pro se status, the Court will

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briefly discuss the merits of Plaintiff’s claims.

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In the Amended Complaint, Plaintiff alleges the Court has jurisdiction under

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18 U.S.C. §§ 241-242. These statutes are part of the United States criminal code, and they

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do not provide a plaintiff with a private right of action in a civil case. These statutes thus

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provide no basis for the Court’s jurisdiction in this case. See Allen v. Gold Cnty. Casino,

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464 F.3d 1044, 1048 (9th Cir. 2006).

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Plaintiff also attempts to raise a Bivens claim against Defendants Department of

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Education (DOE) and several of its employees. See 403 U.S. at 388. To the extent

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Plaintiff attempts to sue the DOE and its employees in their official capacities, the claim

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fails as a matter of law. FDIC v. Meyer, 510 U.S. 471, 486 (1994); Daly-Murphy v.

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Winston, 837 F.2d 348, 355 (9th Cir. 1987). To the extent Plaintiff attempts to sue the

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employees in their individual capacities, a special factor entitles the individual

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Defendants to dismissal of Plaintiff’s claims, namely, that FERPA and § 504 of the

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Rehabilitation Act, which the DOE Office of Civil Rights and Family Policy Compliance

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Office (and their employees, including the individual Defendants) are charged with

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enforcing, are comprehensive statutory schemes with adequate remedial mechanisms,

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making Bivens remedies unavailable. See Schweiker v. Chilicky, 487 U.S. 412, 421

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(1988); Adams v. Johnson, 355 F.3d 1179, 1186 (9th Cir. 2004). Though Defendants also

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argue that the individual Defendants would, in any event, be entitled to qualified

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immunity and that the allegations in the Amended Complaint are insufficient to make a

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Bivens claim plausible, the Court need go no further. Plaintiff’s Bivens claims against

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Defendants fail as a matter of law, and the Court must dismiss them with prejudice.

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III.

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PLAINTIFF’S REACTIVE MOTIONS
In lieu of filing a Response to Defendants’ Motion to Dismiss, Plaintiff filed three

Motions, which the Court will now address in turn.

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Plaintiff first asks the Court to strike Defendants’ Motion to Dismiss (Doc. 49)

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because Defendants did not meet and confer with Plaintiff prior to filing it, which

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Plaintiff alleges violated a prior Order of the Court (Doc. 8). But the Court’s prior Order

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(Doc. 8) requires Defendants to meet and confer with Plaintiff prior to filing a Rule 12(b)

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motion only if the alleged defect can be cured by an amended pleading. Defendants’

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proposed bases for dismissal identified defects that cannot be cured by amending the

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claims in the Amended Complaint, as the Court noted above. Thus, Defendants were not

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required to meet and confer with Plaintiff prior to filing the Motion to Dismiss.

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Second, Plaintiff asks the Court to strike the Motion to Dismiss (Doc. 49) because

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it was not accompanied by a separate statement of facts. As the Court already explained

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in a prior Order (Doc. 38), no Federal Rule of Civil Procedure or Local Rule requires that

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a Rule 12 motion to dismiss include a separate statement of facts. The standard at the

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motion to dismiss stage is favorable to Plaintiff, because the Court generally deems the

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allegations in Plaintiff’s claim as true for purposes of determining whether Plaintiff has

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stated a claim. Moreover, the parties in this matter have not yet held a Federal Rule of

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Civil Procedure 26(f) discovery planning conference and the Court has not yet held a

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Federal Rule of Civil Procedure 16 scheduling conference, so any discovery in this matter

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is in its infancy. Plaintiff’s eventual filing of a Statement of Facts (Doc. 61) on the docket

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was inappropriate because it was premature in terms of the Court’s consideration of

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evidence in this case and untethered to any Motion or Response filed by Plaintiff—

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indeed, Plaintiff filed it two months after all of the present pending Motions were fully

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briefed. For these reasons, the Court will deny Plaintiff’s Motion to Strike (Doc. 49) and

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did not consider Plaintiff’s later-filed Statement of Facts (Doc. 61).

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Plaintiff also filed a Motion for Sanctions (Doc. 50) in conjunction with the

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Motion to Strike, and a Motion for Extension of Time to Complete Discovery (Doc. 51).

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For the reasons stated above, the Court will also deny these Motions.

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IV.

PLAINTIFF’S UNAUTHORIZED SECOND AMENDED COMPLAINT

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After the briefing on Defendant’s Motion to Dismiss was complete, such that it

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was, Plaintiff filed another version of the Complaint, also titled “Amended Complaint”

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(Doc. 55)—which the Court will refer to as the “Second Amended Complaint” for the

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sake of clarity. The Second Amended Complaint alleges new theories of causes of action

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against Defendants in place of those raised in the prior Amended Complaint (Doc. 45).

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A party may amend a complaint once as a matter of course within 21 days after

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serving it, or within 21 days of service of, among others, a Rule 12(b)(6) motion. Fed. R.

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Civ. P. 15(a). In all other circumstances, absent the opposing party’s written consent, a

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party must seek leave to amend from the court. Fed. R. Civ. P. 15(a)(2). Although the

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decision whether to grant or deny a motion to amend is within the trial court’s discretion,

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“Rule 15(a) declares that leave to amend shall be freely given when justice so requires.”

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Foman v. Davis, 371 U.S. 178, 182 (1962) (citation and internal quotations omitted). “In

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exercising its discretion with regard to the amendment of pleadings, a court must be

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guided by the underlying purpose of Rule 15—to facilitate a decision on the merits rather

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than on the pleadings or technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.

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1987) (citation and internal quotations omitted).

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However, the policy in favor of allowing amendments is subject to limitations.

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After a defendant files a responsive pleading, leave to amend is not appropriate if the

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“amendment would cause prejudice to the opposing party, is sought in bad faith, is futile,

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or creates undue delay.” Madeja v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002)

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(citation and internal quotations omitted). “Futility alone can justify the denial of a

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motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003).

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Here, the period in which Plaintiff could have amended the Complaint as a matter

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of course has long passed. As a result, absent Defendants’ written consent, Plaintiff was

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obligated to file a motion to amend demonstrating that the proposed amendments are not

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futile and do not cause undue delay or otherwise prejudice Defendants.

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In addition, Local Rule 15.1(a) requires a party moving for leave to amend a

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complaint to attach a copy of the proposed amended complaint as an exhibit to the

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motion, “which must indicate in what respect it differs from the pleading it amends, by

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bracketing or striking through the text to be deleted and underlining the text to be added.”

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Plaintiff’s Second Amended Complaint (Doc. 55) does not comply with these provisions.

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Moreover, the filing of the Second Amended Complaint does not obviate the

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requirement for Plaintiff to respond to a pending Motion to Dismiss (Doc. 47),

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particularly where, as here, Plaintiff makes no effort to explain how the Second Amended

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Complaint addresses the defects in the Amended Complaint identified in Defendants’

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Motion. If anything, the fact that Plaintiff filed a Second Amended Complaint (Doc. 55)

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that raises different claims against Defendants leads the Court to the conclusion that

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Plaintiff consents to the dismissal of the Amended Complaint (Doc. 45)—though the

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Court need not rely solely on this conclusion, considering the Court’s determination,

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above, that Plaintiff’s claims in the Amended Complaint have no merit.

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While the Court would be justified in striking the unauthorized Second Amended

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Complaint (Doc. 55) for Plaintiff’s myriad failures in filing it, the Court will, in the

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interest of efficiency, evaluate whether the new claims have merit. Indeed, Defendants

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styled their Motion to Strike (Doc. 57) the Second Amended Complaint, in the

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alternative, as a Response to an Implied Motion to Amend.

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In the Second Amended Complaint, Plaintiff now alleges that the Court has

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jurisdiction pursuant to the 5th and 14th Amendments to the Constitution, and that

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Defendants are liable under the due process clause of the 5th Amendment and “the

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Tucker Act, which allows the Plaintiff to sue the United States for [breach] of contract.”

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(Doc. 55.) The manner in which a plaintiff may sue a federal official for a constitutional

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violation, if at all, is a Bivens action, which, as the Court already noted, is not available to

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Plaintiff in this case based on the alleged actions of Defendants.

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Plaintiff’s Tucker Act1 claim also fails. “In order to invoke jurisdiction under the

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Tucker Act, a plaintiff must point to a substantive right to money damages against the

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United States.” James v. Caldera, 159 F.3d 573 580 (Fed. Cir. 1998). In the Second

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Amended Complaint, Plaintiff states he is entitled to damages under the 5th and 14th

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Amendments, but he identifies no money-mandating law that would support a claim for

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money damages against the government, such that he can plausibly bring a Tucker Act

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claim against Defendants. Plaintiff’s proposed Second Amended Complaint is thus futile.

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For all of the foregoing reasons, the Court will grant Defendants’ Motion to Strike

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the Second Amended Complaint. Moreover, the Court finds that the defects in Plaintiff’s

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claims in the Amended Complaint and Second Amended Complaint cannot be cured by

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amendment. As a result, the Court must dismiss Plaintiff’s claims against Defendants

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with prejudice. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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IT IS THEREFORE ORDERED granting Defendants’ Motion to Dismiss
(Doc. 47) and dismissing Plaintiff’s claims against Defendants with prejudice.

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IT IS FURTHER ORDERED denying Plaintiff’s Motion to Strike (Doc. 49).

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IT IS FURTHER ORDERED denying Plaintiff’s Motion for Sanctions (Doc. 50).

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IT IS FURTHER ORDERED denying Plaintiff’s Motion for Extension of Time to

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Complete Discovery (Doc. 51).

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IT IS FURTHER ORDERED granting Defendants’ Motion to Strike (Doc. 57) and

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striking Plaintiff’s Second Amended Complaint (Doc. 55).

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To the extent Plaintiff means to bring a claim under the Little Tucker Act, 28
U.S.C. § 1346(a)(2), this Court would not have jurisdiction, since Plaintiff seeks $35
million in damages from the government, far more than the $10,000 jurisdictional limit.
(See Doc. 55.)
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IT IS FURTHER ORDERED that, because all of Plaintiff’s claims against

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Defendants are dismissed with prejudice, the Clerk shall enter final judgment and close

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this matter.

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Dated this 30th day of June, 2017.

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Honorable John J. Tuchi
United States District Judge

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