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Mozzer v. United States

United States District Court, W.D. Washington, Tacoma

March 10, 2014

ROBERT MOZZER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

ORDER GRANTING UNITED STATES' MOTION TO DISMISS

ROBERT J. BRYAN, District Judge.

This matter comes before the court on United States' Motion to Dismiss (Dkt. 7). The court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file herein.

PROCEDURAL HISTORY

On December 18, 2013, plaintiff filed his complaint in Clark County District Court's Small Claims Department, claiming that an employee of the Department of Veteran Affairs (VA), Carolyn, Bateson, "use[d] fraudulent deception, (Violating [RCW] 9A.60.040) in order to gain releases to tamper with witnesses (Violating [RCW] 9A.72.120)." Dkt. 1-2. On January 17, 2014, defendant then removed the case to this court based on federal question jurisdiction. Dkt. 1.

On February 13, 2014, defendant filed this Motion to Dismiss based on three theories: (1) failure to state a claim under Rule 12(b)(6); (2) failure to exhaust administrative remedies under the Federal Tort Claims Act (FTCA); and (3) lack of subject matter jurisdiction under Rule 12(b)(1). Dkt. 7 at 1. Defendant alleges that plaintiff has failed to state a claim upon which relief can be granted because he merely alleges that Ms. Bateson used "fraudulent deception" to acquire plaintiff's release of information. Dkt. 7 at 4. Defendant also argues that plaintiff failed to exhaust his administrative remedies under the Federal Tort Claims Act (FTCA) because plaintiff never presented an administrative tort claim to the VA. Dkt. 7 at 5. Finally, defendant argues that plaintiff's claims fall outside the jurisdiction of this court because, to the extent plaintiff contests how Ms. Bateson acted regarding a grant or denial of a VA benefit, the Veterans Judicial Review Act (VJRA) explicitly divests this court of jurisdiction to make such determinations. Dkt. 7 at 8.

Plaintiff did not file a response. On March 7, 2014, defendant filed its reply, requesting that the court find in their favor under LCR 7(b)(2) based on plaintiff's failure to file a response. Dkt. 12.

STANDARD FOR MOTION TO DISMISS

Rule 12(b)(6) Standard

Under Fed.R.Civ.P. 12 (b)(6), a complaint may be dismissed for "failure to state a claim upon which relief can be granted." Dismissal of a complaint may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

Accordingly, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ( citing Twombly, 550 U.S. at 570). A claim has "facial plausibility" when the party seeking relief "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. First, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. Secondly, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

If a claim is based on a proper legal theory but fails to allege sufficient facts, the plaintiff should be afforded the opportunity to amend the complaint before dismissal. Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 1983). If the claim is not based on a proper legal theory, the claim should be dismissed. Id. "Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Moss, 572 F.3d at 972.

Here, plaintiff's claims are claims based on state criminal statutes. Statutes that provide for punishment by fine or imprisonment do not create privately enforceable rights or give rise to civil liability. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (per curiam) (finding no civil liability under criminal conspiracy statutes). Therefore, plaintiff has failed to state a claim upon which relief can be granted. His claims should be dismissed without prejudice with an opportunity to refile if he can allege a tort against the United States for which it is liable.

Requirement to Exhaust Administrative Remedies

Plaintiff's tort claims are governed by the Federal Tort Claims Act, 28 U.S.C. ยง 1346(b)(1) (FTCA), which permits suit against the United States for common law torts committed by federal employees in certain conditions. The FTCA is the exclusive remedy for individuals seeking damages for alleged tortious activities of federal employees acting within the scope of their ...


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