Allums v. Department of Homeland Security

Filing 30

ORDER DISMISSING AMENDED COMPLAINT WITHOUT LEAVE TO AMEND (Dkt. No. 29). Signed by Magistrate Judge Jacqueline Scott Corley on 10/31/2013. (Attachments: # 1 Certificate of Service)(ahm, COURT STAFF) (Filed on 10/31/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DENNIS ALLUMS,

Northern District of California

United States District Court

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Case No.: 13-cv-00807 JSC
ORDER DISMISSING AMENDED
COMPLAINT WITHOUT LEAVE TO
AMEND (Dkt. No. 29)

Plaintiff,
v.
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DEPARTMENT OF HOMELAND
SECURITY,
Defendant.

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Plaintiff Dennis Allums, proceeding pro se and in forma pauperis, brings a series of claims

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against the Department of Homeland Security (“DHS”). (See Dkt. Nos. 1 & 29.) The Court

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previously granted Plaintiff’s application to proceed in forma pauperis (Dkt. No. 13), and dismissed

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the original Complaint pursuant to this Court’s review under 28 U.S.C. § 1915 (Dkt. No. 23.)

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Presently before the Court is Plaintiff’s Amended Complaint, in which he alleges many of the same

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insufficient claims that this Court previously dismissed. (Dkt. No. 29.) Because Plaintiff again fails

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to allege a set of facts supporting any of his claims against DHS, the Court DISMISSES his

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Amended Complaint without leave to amend.

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LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(1), a district court must dismiss an action
if it lacks jurisdiction over the subject matter of the suit. “Subject matter jurisdiction can never be

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forfeited or waived and federal courts have a continuing independent obligation to determine

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whether subject-matter jurisdiction exists.” Leeson v. Transamerica Disability Income Plan, 671

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F.3d 969, 976 (9th Cir. 2012) (internal quotation marks and citation omitted). For the Court to

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exercise proper subject matter jurisdiction over an action, the parties must have standing. Nat’l

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Wildlife Fed’n v. Adams, 629 F.2d 587, 593 n.11 (9th Cir. 1980); see also Warth v. Seldin, 422 U.S.

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490, 517-18 (1975) (“The rules of standing . . . are threshold determinants of the propriety of judicial

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intervention. It is the responsibility of the complainant clearly to allege facts demonstrating that he is

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a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial

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powers.”). “[T]he standing question is whether the plaintiff has alleged such a personal stake in the

Northern District of California

outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify

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United States District Court

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the exercise of the court's remedial powers on his behalf.” Warth, 422 U.S. at 498–99 (internal

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quotation marks omitted).

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Even if a plaintiff adequately alleges standing, a complaint may still be dismissed under

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Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. A complaint fails to state a

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claim upon which relief may be granted if the plaintiff fails to allege the “grounds” of his

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“entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff must

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plead “factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, a

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court should dismiss a complaint for failure to state a claim if, taking all factual allegations as true, it

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does not contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 662; see

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also Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Caviness v. Horizon Cmty.

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Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (internal quotation marks omitted).

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Under 28 U.S.C. § 1915, the Court has a continuing duty to dismiss any case in which a party

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is proceeding in forma pauperis if the Court determines that the action is (1) frivolous or malicious;

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(2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a

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defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see also Neitzke v. Williams,

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490 U.S. 319, 325 (1989) (“[A] complaint, containing as it does both factual allegations and legal

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conclusions, is frivolous where it lacks an arguable basis either in law or in fact.”). Upon dismissal,

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pro se plaintiffs proceeding in forma pauperis must be given leave to “amend their complaint unless

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it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.”

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Franklin v. Murphy, 745 F. 2d 1221, 1235 n.9 (9th Cir. 1984) (internal citations and quotation marks

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omitted); Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Balistreri v. Pacifica Police

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Dep’t, 901 F.2d 696, 701 (9th Cir. 1988); Breier v. N. Cal. Bowling Proprietors’ Ass’n, 316 F.2d

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787, 790 (9th Cir. 1963); 3 Moore, Federal Practice, § 15.10 at 838 (2d ed. 1948).
DISCUSSION

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In a detailed 10-page Order, this Court previously dismissed all of Plaintiff’s claims with

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Northern District of California

United States District Court

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leave to amend, concluding that Plaintiff “ha[d] improperly made claims on behalf of others, failed

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to plead DHS’ liability for the wrongdoing of non-parties, and described factual allegations that

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[we]re wholly incredible and unsupported by factual assertions.” (Dkt. No. 23 at 10.) Although the

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Court’s Order informs Plaintiff of the deficiencies of his claims, Plaintiff’s Amended Complaint

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largely repeats much of the same insufficient facts and legal conclusions. 1 For instance, Plaintiff

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continues to fail to allege a basis for third-party standing that would allow him to bring claims on

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behalf of others where there is no indication that those third-parties are in any way hindered in

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bringing their own claims. See Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004).
Moreover, Plaintiff’s claims, and DHS’ liability, continue to be based on fanciful allegations

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regarding Plaintiff’s prediction of the 2008 financial crisis and September 11, 2001 conspiracy

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theories. (See, e.g., Dkt. No. 29 at 26 (“Mr. Allums blew the whistle on a group of economic

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terrorists, based in the U.S. including Politicians [sic] as well as businessmen who were planning to

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collapse the U.S. economy . . . . It is believed that Agents, knowing this to indeed would occur [sic],

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intensified physical and emotional harassment[,] making a would be Hero [sic] a permanent

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villain.”).) Plaintiff’s remaining allegations supporting his claims fail because they are conclusory.

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See Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation to provide the grounds for his entitlement

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Plaintiff’s Amended Complaint is also untimely. The Court ordered Plaintiff to file any Amended
Complaint by September 13, 2013; Plaintiff, however, did not file his Amended Complaint until
September 25, 2013. Plaintiff provides no explanation for the delay.
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to relief requires more than labels and conclusions.”); (see also Dkt. No. 23 at 9 (“Plaintiff’s

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Complaint does not adequately allege a connection between the conduct of the non-parties and

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Defendant’s allegedly harassing and abusive actions.”)).

For the reasons stated above, the Court DISMISSES Plaintiff’s Amended Complaint.

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The Ninth Circuit has interpreted Rule 15(b) to require a district court to “grant leave to

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amend . . . unless it determines that the pleading could not possibly be cured by the allegation of other

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facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); see also Lopez v. Smith, 203 F.3d 1122,

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1127 (9th Cir. 2000). Particularly in the case of pro se litigants, “leave to amend should be granted if

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it appears at all possible that the plaintiff can correct the defect.” Balistreri v. Pacifica Police Dep’t,

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Northern District of California

CONCLUSION

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United States District Court

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901 F.2d 696, 701 (9th Cir. 1988) (internal quotation marks omitted).

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However, “leave to amend may be denied if it appears to be futile or legally insufficient.”

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Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir. 1986). “It is not an abuse of

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discretion to deny leave to amend when any proposed amendment would be futile.” Klamath–Lake

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Pharmaceutical Ass’n v. Klamath Medical Serv. Bureau, 701 F.2d 1276, 1292–93 (9th Cir.); see also

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Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).

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The Court concludes that any further amendment would be futile and therefore dismisses

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Plaintiff’s Amended Complaint without leave to amend. Although this Court closely examined

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Plaintiff’s original Complaint and explained its deficiencies in a 10-page Order, Plaintiff’s Amended

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Complaint fails to cure any of those deficiencies. Moreover, any amendment is very likely to be futile

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considering Plaintiff’s insistence on basing his claims on factually unsupported, wholly incredible

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government-wide conspiracies.

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The Clerk is ordered to close this case.

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IT IS SO ORDERED.

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Dated: October 31, 2013
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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