Ward v. National Railroad Passenger Corporation

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 6/8/2018 RECOMMENDING that the 17 Motion to Dismiss be granted; 16 Amended Complaint be dismissed without leave to amend and this action be closed. Objections due within 14 days after being served with these findings and recommendations. (Hunt, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELTON WARD,

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Plaintiff,

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No. 2:17-cv-0734 MCE DB PS

v.

FINDINGS AND RECOMMENDATIONS

NATIONAL RAILROAD
CORPORATION,

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Defendant.

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This action is before the undersigned on defendant National Railroad Passenger

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Corporation service mark Amtrak’s, (“Amtrak”), motion to dismiss the amended complaint

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pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 (ECF No. 22.) For the

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reasons stated below, defendant’s motion to dismiss should be granted and plaintiff’s amended

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complaint dismissed without leave to amend.
BACKGROUND

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Plaintiff commenced this action on April 6, 2017, by filing a complaint and paying the

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required filing fee. (ECF No. 1.) On November 7, 2017, plaintiff’s complaint was dismissed and

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plaintiff was granted leave to file an amended complaint. (ECF No. 15.) Plaintiff filed an

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Plaintiff is proceeding pro se in this action. Therefore, the matter was referred to the
undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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amended complaint on November 28, 2017. (ECF No. 16.) Therein, plaintiff alleges that on

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April 7, 2014, plaintiff purchased, “via the internet . . . . a superliner roomette ticket, to travel on

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an AMTRAK train from Sacramento CA to St. Louis MO.” (Am. Compl. (ECF No. 1) at 3.) On

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April 10, 2014, “a passenger manifest was created,” and “plaintiff ended up being the only black

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male within the roomette portion of the manifest.” (Id.)

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“Between April 10, 2014 and April 12, 2014,” defendant “willfully and unlawfully shared

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all the passenger’s information” with the Galesburg Illinois Police Department “for the purpose of

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conducting passenger background checks prior to the AMTRAK train making it into Galesburg

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Illinois.” (Id.) When plaintiff’s train arrived in Galesburg, Illinois, Galesburg Illinois Police

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Department officers Ming and Carnes boarded the train and proceeded “directly to the train car

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and room of the plaintiff.” (Id.) The officers “escorted plaintiff from the train to be detained at

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their police station” pending the resolution of a search warrant. (Id. at 4.) Based on these

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allegations, the amended complaint asserts three causes of action pursuant to 42 U.S.C. § 1983.

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(Id. at 5-6.)

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On December 12, 2017, defendant filed the pending motion to dismiss. (ECF No. 17.)

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Plaintiff filed an opposition on January 3, 2018. (ECF No. 18.) Defendant filed a reply on

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January 8, 2018. (ECF No. 20.) On January 31, 2018, defendant’s motion to dismiss was taken

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under submission. (ECF No. 22.)

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STANDARDS
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Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

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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). In general, pro se complaints are held to less

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stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519,

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520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the

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form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th

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Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than

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an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A

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pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676

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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove

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facts which it has not alleged or that the defendants have violated the . . . laws in ways that have

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not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,

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459 U.S. 519, 526 (1983).

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In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted

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to consider material which is properly submitted as part of the complaint, documents that are not

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physically attached to the complaint if their authenticity is not contested and the plaintiff’s

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complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles,

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250 F.3d 668, 688-89 (9th Cir. 2001).

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ANALYSIS
Defendant’s motion to dismiss argues, in relevant part, that plaintiff’s amended complaint

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fails to plead facts sufficient to show that plaintiff is entitled to any relief. (Def.’s MTD (ECF

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No. 17) at 2.) And defendant is correct. In this regard, the only defendant named in the amended

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complaint is Amtrak. (Am. Compl. (ECF No. 16) at 2.) The amended complaint’s causes of

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action are brought pursuant to 42 U.S.C. § 1983. (Id. at 5-6.)
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“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must

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plead that each Government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Iqbal, 556 U.S. at 676. Thus, plaintiff “may not maintain a claim

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against Amtrak based on respondeat superior.” Spencer v. National R.R. Passenger Corp., 141

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F.Supp.2d 1147, 1149 (N.D. Ill. 2001). “Instead, it is when execution of a government’s policy

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or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to

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represent official policy, inflicts the injury that the government as an entity is responsible under §

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1983.” Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694 (1978).
“To sufficiently plead a Monell claim and withstand a Rule 12(b)(6) motion to dismiss,

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allegations in a complaint ‘may not simply recite the elements of a cause of action, but must

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contain sufficient allegations of underlying facts to give fair notice and to enable the opposing

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party to defend itself effectively.’” Johnson v. Shasta County, 83 F.Supp.3d 918, 930 (E.D. Cal.

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2015) (quoting AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)). At a

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minimum, the complaint should “identif[y] the challenged policy/custom, explain[ ] how the

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policy/custom was deficient, explain[ ] how the policy/custom caused the plaintiff harm, and

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reflect[ ] how the policy/custom amounted to deliberate indifference[.]” Young v. City of Visalia,

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687 F. Supp. 2d 1141, 1149 (E.D. Cal. 2009); see also Little v. Gore, 148 F.Supp.3d 936, 957

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(S.D. Cal. 2015) (“Courts in this circuit now generally dismiss claims that fail to identify the

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specific content of the municipal entity’s alleged policy or custom.”).

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Here, the amended complaint makes no mention of a policy or custom. See Prince v.

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Acheson, - - - F. Supp.3d - - - , 2018 WL 1629138, at *2 (D. D.C. Apr. 4, 2018) (“Even if Amtrak

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is a state entity—a debatable proposition—Prince never alleges that Acheson, the General

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Counsel, has herself violated his rights in any way. Similarly, Plaintiff has not alleged that the

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entity Defendants (Amtrak and Amtrak Police) implemented or executed any policy to violate his

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constitutional rights.”); Greco v. National R.R. Passenger Corp., No. Civ. A. 02-CV-6862, 2005

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WL 1320147, at *16 (E.D. Pa. June 1, 2005) (“Instead, Plaintiff must identify a specific Amtrak

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policy or custom that proximately caused the violation of [plaintiff’s] constitutional rights.”).

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The amended complaint does allege that the defendant engaged in “unlawful profiling of

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plaintiff due to race and gender,” and that as a “proximate result of the defendant’s prejudgment

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of plaintiff based on an unjust racial stigmatization,” that plaintiff was deprived of equal

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protection. (Am. Compl. (ECF No. 16) at 5.) However, the amended complaint fails to allege

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any facts that would establish how defendant Amtrak was aware of plaintiff’s race or gender

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when defendant allegedly unlawfully shared plaintiff’s passenger information with the Galesburg

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Illinois Police Department, or how a policy or custom of defendant Amtrak discriminated against

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plaintiff based on race and/or gender. (Am. Compl. (ECF No. 16) at 5.)

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The amended complaint goes on to allege that defendant’s actions “violated plaintiff’s

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right to not be subjected to unreasonable seizure guaranteed under the 4th Amendment of the

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United States Constitution.” (Id.) However, according to the amended complaint’s allegations, it

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was officers Mings and Carnes of the Galesburg Illinois Police Department who seized plaintiff.

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(Id. at 3.)

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Finally, the amended complaint alleges that defendant Amtrak violated the Privacy Act of

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1974. (Id. at 6.) The elements of a disclosure claim under the Privacy Act are: (1) the

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information is covered by the Act as a “record” contained in a “system of records”; (2) the agency

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disclosed the information improperly; (3) the disclosure had an adverse effect on the plaintiff; (4)

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the disclosure was willful or intentional; and (5) the plaintiff suffered actual damages. Stafford v.

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Social Sec. Admin., 437 F.Supp.2d 1113, 1117 (N.D. Cal. 2006); see also Doe v. Chao, 540 U.S.

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614, 620 (2004) (actual damages are a required element of Privacy Act claims).

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The amended complaint, however, fails to allege any of the elements necessary for a

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Privacy Act claim. Moreover, it appears that “the Privacy Act does not apply to Amtrak.” U.S.

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v. Jackson, 381 F.3d 984, 990 (10th Cir. 2004) (citing Ehm v. National R.R. Passenger Corp., 732

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F.2d 1250, 1255 (5th Cir. 1984)).

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LEAVE TO AMEND

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For the reasons stated above, defendant’s motion to dismiss should be granted and

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plaintiff’s amended complaint dismissed. The undersigned has carefully considered whether

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plaintiff could further amend the complaint to state a claim upon which relief could be granted.
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Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility.”

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California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir.

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1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293

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(9th Cir. 1983) (holding that while leave to amend shall be freely given, the court does not have

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to allow futile amendments).

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In light of the deficiencies noted above, the undersigned finds that it would be futile to

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grant plaintiff leave to amend. Accordingly, the undersigned will recommend that plaintiff not be

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granted leave to amend.2

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CONCLUSION

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendant’s December 12, 2017 motion to dismiss (ECF No. 17) be granted;

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2. The November 28, 2017 amended complaint (ECF No. 16) be dismissed without leave

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to amend; and

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3. This action be closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.”

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If plaintiff can identify a policy or custom of the defendant that proximately caused a violation
of plaintiff’s constitutional rights, plaintiff should allege such in any objections to these findings
and recommendations. “In a Monell claim, there are three ways to show a policy or custom . . . :
(1) by showing a longstanding practice or custom which constitutes the ‘standard operating
procedure’ of the . . . entity; (2) by showing that the decision-making official was . . . a final
policymaking authority whose edicts or acts may fairly be said to represent official policy in the
area of decision; or (3) by showing that an official with final policymaking authority either
delegated that authority to, or ratified the decision of, a subordinate.” Rosenbaum v. City and
County of San Francisco, 484 F.3d 1142, 1155 (9th Cir. 2007) (citation and quotation omitted).
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Any reply to the objections shall be served and filed within seven days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: June 8, 2018

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