Phillips v. Secretary of Navy

Filing 34

ORDER GRANTING Defendant's Motion to Dismiss WITH LEAVE TO AMEND signed by District Judge Dale A. Drozd on 8/24/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRYL PHILLIPS,

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No. 1:16-cv-01944-DAD-SKO

Plaintiff,
v.
SECRETARY OF NAVY,
Defendants.

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS WITH LEAVE TO
AMEND
(Doc. Nos. 25, 29)

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Plaintiff Darryl Phillips, appearing pro se, commenced this action against the defendant,

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the Secretary of the Navy, on December 30, 2016. (Doc. No. 1.) Plaintiff’s operative amended

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complaint, filed April 3, 2017, sets forth the following singular allegation: “Plaintiff was unjustly

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held against his will on or about 3 July 2008 to 20 June 2010 at the United States Disciplinary

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Barracks, Fort Leavenworth, KS to which the plaintiff was harmed.” (Doc. No. 10 at 5.)

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This matter is now before the court on defendant’s motion to dismiss the amended

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complaint for failure to state a claim. (See Doc. No. 25.) Plaintiff did not file an opposition to

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that motion. However, on August 11, 2017, plaintiff filed a motion seeking leave to file a second

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amended complaint. Therein, plaintiff notes he is seeking the assistance of counsel in connection

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with this action. (Doc. No. 29.) A hearing on defendant’s motion to dismiss was held on August

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15, 2017. Assistant United States Attorney Joseph Frueh appeared on behalf of the defendant.

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Plaintiff Phillips did not appear. For the reasons stated below, the court will grant the
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defendant’s motion to dismiss with leave to amend.

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LEGAL STANDARD

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The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

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sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

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1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

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F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to

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relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009).

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In determining whether a complaint states a claim on which relief may be granted, the

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court accepts as true the allegations in the complaint and construes the allegations in the light

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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.

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United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth

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of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v.

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Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed

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factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me

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accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and

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conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.

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at 555; see also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to

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assume that the plaintiff “can prove facts which it has not alleged or that the defendants have

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violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of

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California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). In ruling on

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a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material

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which is properly submitted as part of the complaint, documents that are not physically attached

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to the complaint if their authenticity is not contested and the plaintiffs’ complaint necessarily
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relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688–89

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(9th Cir. 2001).

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DISCUSSION

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Plaintiff’s lone vague and conclusory statement regarding his allegedly unjust detention

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fails to support a plausible inference of wrongdoing. Most notably, plaintiff has not articulated

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what right he thinks has been violated, and the circumstances giving rise to his detention are

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unclear. For example, plaintiff has not alleged facts concerning the events leading up to his

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detention, who made the decision to detain him at the disciplinary barracks, or how such a

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decision was made.1 Accordingly, plaintiff’s amended complaint simply contains the type of “the

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defendant-unlawfully-harmed-me accusation” insufficient to put defendant on notice of the nature

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of the alleged misconduct under Rule 8. See Iqbal, 556 U.S. at 678

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The court has carefully considered whether plaintiff may further amend his complaint to

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state a claim upon which relief may be granted. “The court should freely give leave when justice

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so requires.” Fed. R. Civ. P. 15(a). “Valid reasons for denying leave to amend include undue

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delay, bad faith, prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan

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Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath

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Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall

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be freely given, the court does not have to allow futile amendments). At this early stage of the

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litigation, the court cannot conclude with certainty that amendment would be futile even though it

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would appear that is likely the case. Accordingly, plaintiff Phillips will be granted an opportunity

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to file a second amended complaint.2

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Nor has plaintiff articulated a basis for how venue could be proper in this district with respect to
an alleged detention which took place in Kansas.
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In light of plaintiff Phillips’ payment of the full $400.00 filing fee to commence this action, at
this time the court declines defendant’s alternative suggestion to dismiss the action without
prejudice to the filing of a new action.
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CONCLUSION

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For the reasons set forth above,

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1. Defendant’s motion to dismiss the amended complaint (Doc. No. 25) is granted;

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2. Plaintiff’s amended complaint is dismissed with leave to amend;3

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3. If he wishes to pursue this action, plaintiff shall file a second amended complaint

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within thirty (30) days of the date of this order;

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4. Any failure to file a second amended complaint within the time provided will likely

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result in the dismissal of this action.
IT IS SO ORDERED.

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Dated:

August 24, 2017
UNITED STATES DISTRICT JUDGE

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Accordingly, plaintiff’s motion for leave to file an amended complaint (Doc. No. 29) is denied
as having been rendered moot by this order.
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