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Akmal v. City of Kent

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

March 13, 2014

CITY OF KENT, et al., Defendants.


JAMES L. ROBART, District Judge.


Before the court is Defendant Michael Alston's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim (Mot. (Dkt. #46)), and Plaintiff Mariyam Akmal's request for entry of default ( see Resp. (Dkt. #48) at 2.) The court has examined the submissions of the parties, the balance of the record, and the governing law. Considering itself fully advised, the court GRANTS Mr. Alston's motion to dismiss (Dkt. #46) and DENIES Ms. Akmal's request for entry of default (Dkt. #48).[1]


Ms. Akmal filed the instant case on March 5, 2013, and has since amended her complaint twice. ( See Compl. (Dkt. #4); Am. Compl. (Dkt. #27); 2d Am. Compl. (Dkt. #43).) Ms. Akmal's three complaints are similar to one another, and in each of them she alleges a laundry list of civil rights violations against the City of Kent ("City"), the Kent Police Department ("Kent Police"), and other public figures, including Mr. Alston, who is the Director of the Office of Civil Rights ("OCR") within the Federal Department of Justice's Office of Justice Programs. ( Id. ) Ms. Akmal is suing Mr. Alston in his personal capacity. ( Id. ) The crux of Ms. Akmal's allegations are that Kent Police and other public officials in the City engaged in a "civil conspiracy" against her. ( See 2d Am. Compl. ¶ 34.)

Ms. Akmal's conspiracy allegations include discrimination by Kent Police officers because of her religion, race, and gender. ( Id. ¶¶ 17, 34.) Ms. Akmal is an African-American Muslim. ( Id. ) She claims that Kent Police discriminated against her because they "repeatedly, over a decade, refused to allow her to lodge crime reports that she has been harassed both electronically and in real life, as well as stalked by a networked group of mostly anonymous individuals." ( Id. ¶ 17.) Ms. Akmal also alleges that Kent Police retaliated against her for her attempted complaints by getting her fired, stealing money from her bank account, and painting her in a false light because she lawfully owns a firearm. ( See id. ¶¶ 24-26.)

Ms. Akmal also alleges that she was discriminated against by the City. She claims that she was asked to, and did, give her contact information to the City Clerk in 2010 for investigatory purposes, that afterward her complaints were not investigated, and that the City used her personal information to stalk and retaliate against her. ( Id. ) This stalking and retaliation included "entering her home while in her absence, taking items from her home, going through her personal correspondence, computers, etc. and then using this gleaned knowledge to anonymously stalk, track, and taunt her." ( Id. ) Ms. Akmal also alleges that she was threatened by agents of the City. ( Id. ) She states, "[t]o date, they continue to send her veiled threats of physical harm-I can hurt you, ' you know what they say about the squeaky wheel, ' references to playing Cowboys & Muslims' but dipping the bullet in pig grease first...." ( Id. )

Ms. Akmal complained about the City's and Kent Police's conduct to OCR on March 15, 2007, and OCR closed her case on May 1, 2007. ( Id. ¶ 28; Cooper Aff. (Dkt. #51) ¶ 2.) Ms. Akmal claims that Mr. Alston told her "that she could complain all she wanted and [could] complain to his boss all day long but that no one is ever going to help you. '" (2d Am. Compl. ¶¶ 28-29 (emphasis in original).)

Mr. Alston now moves to dismiss Ms. Akmal's claims against him for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ( See Mot. at 3-5 (citing Fed.R.Civ.P. 12(b)(1), (6)).) He argues that Ms. Akmal's claims should be dismissed because Ms. Akmal "has failed to plead any facts to show that [he] violated any [of her] constitutional rights, " "has failed to plead any facts to show that her claims against [him] are not barred by the statute of limitations, " and because "there is an alternative existing process for [her] to address her claims of alleged discrimination by recipients of federal funds." ( Id. at 1, 8.)

Against the motion for dismissal, Ms. Akmal argues that "Mr. Alston's repeated refusal to conduct the investigation upon receipt of the required paperwork supplied by [her] amounts to a deprivation of her Constitutional rights under the First, Fifth, and Fourteenth Amendments."[2] (Resp. at 2.) Ms. Akmal also asks the court to enter a default against Mr. Alston for failing to timely answer her complaint. ( Id. )


A. Motion to Dismiss Standards

Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1) when the court lacks subject matter jurisdiction over the claim. See Fed.R.Civ.P. 12(b)(1). Subject matter jurisdiction is a threshold issue that goes to the court's power to hear the case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). A motion to dismiss for lack of subject matter jurisdiction can attack the allegations either facially or factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A moving party factually attacks the allegations by "disput[ing] the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. A moving party facially attacks the allegations by asserting "that allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction." Id.

A federal court may also dismiss a plaintiff's claims if he or she fails to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss under either Federal Rule of Civil Procedure 12(b)(6) or 12(b)(1), the court construes the complaint in the light most favorable to the non-moving party. See Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005); see also Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Generally, the court must accept as true all well-pleaded allegations of material fact and draw all reasonable inferences in favor of the plaintiff. See Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). This is particularly true when a plaintiff appears pro se, because the court must construe pro se plaintiffs' pleadings liberally and afford them the benefit of the doubt. See, e.g., Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The court, however, need not accept as true a legal conclusion presented as a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).

A complaint generally must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Furthermore, "[t]o survive a [12(b)(6)] 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.'" Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Dismissal under Rule 12(b)(6) can be based on the lack of a cognizable legal theory or the absence of sufficient factual allegations under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). If the court finds that dismissal is warranted, the court must grant the pro se plaintiff leave to amend unless it is absolutely clear that amendment could not cure the defects. Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995).

B. Subject Matter Jurisdiction and Mr. Alston's Argument About Alternative Remedies

As a threshold matter the court must address subject matter jurisdiction. Generally, an individual may sue federal officers for constitutional violations in their individual capacity based on the Supreme Court's precedent in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). However, Mr. Alston argues that a Bivens claim is not available to Ms. Akmal and that her claim should be dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Specifically, Mr. Alston argues that Ms. Akmal cannot bring her Bivens claim because she has an alternative administrative remedy and the Supreme Court has held that Bivens claims are not available when alternative remedies exist. (Mot. at 8-9.); see W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1120 (9th Cir. 2009) (If there is "any alternative, existing process for protecting the plaintiffs' interests.... [s]uch an alternative remedy would raise the inference that Congress expected the Judiciary to stay its Bivens hand.") (internal citations omitted). Mr. Alston contends that there is an alternative process for Ms. Akmal to bring her claim because the statute governing the Office of Justice Programs says that persons who claim they were discriminated against by entities funded by that office, like OCR, must exhaust administrative remedies before filing suit. ( See Mot. at 9 (citing 42 U.S.C. § 3789d).) However, that statute only discusses the need to exhaust administrative remedies when "a State government or unit of local government, or any officer or employee thereof acting in an official capacity, has engaged in [discrimination]...." 42 U.S.C. § 3789d(c)(4)(A). Mr. Alston and OCR are not a unit of state or local government ( see Mot. at 2-3), nor is Mr. Alston being sued in his official capacity ( see generally Not. of Rem. Ex. A). Therefore, the alternative remedy Mr. Alston describes does not apply to Ms. Akmal's claims, and a Bivens claim is still potentially available. Additionally, based on the court's research and the parties' pleadings, there appear to be no cases where other courts have held that Bivens actions are unavailable with respect to claims against OCR officials sued in their personal capacities. ( See Mot. at 9; Resp. at 12-13.) Thus, the court does not lack subject matter jurisdiction over Ms. Akmal's claims, and it declines to grant Mr. Alston's motion to dismiss on this ground.

C. Ms. Akmal Fails to State any Claims for Relief Against Mr. Alston

Ms. Akmal's complaint should nonetheless be dismissed with respect to Mr. Alston because she does not allege facts showing that he violated her constitutional rights. ( See generally 2d Am. Compl.) To state a claim under Bivens, a plaintiff must allege (1) that a right secured by the Constitution was violated and (2) that the alleged violation was committed by a federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Here, the sole reference to Mr. Alston in Ms. Akmal's complaint is his alleged statement, "no one is ever going to help you." (2d Am. Compl ¶ 29.) This statement does not allege any facts showing that Mr. Alston violated Ms. Akmal's constitutional rights or that he took any improper action against her. Even taking the alleged statement as true, it does not show that Mr. Alston violated Ms. Akmal's First, Fifth, or Fourteenth Amendment rights. See U.S. Const. Amends. I, V, XIV.

Furthermore, the pleading defects in Ms. Akmal's complaint are not cured by the argument in her response memorandum that the statement "was the defendant's final word to her at the culmination of close to two years' worth of effort in an attempt to have [OCR] open an investigation into... the Kent [Police]." (Resp. at 7.) Ms. Akmal does not provide any information about her attempts to have OCR investigate her claims, and Mr. Alston has proffered evidence that OCR did open an investigation based on a complaint by Ms. Akmal and that this investigation was closed in 2007. (Cooper Aff. ¶ 2.) Regardless, even if this was Mr. Alston's "final word, " Ms. Akmal does not explain how the statement was discriminatory or violated any of her constitutional rights. The court need not accept Ms. Akmal's legal conclusion that "discrimination of this nature and by a high-ranking employee of the U.S. Department of Justice is a violation of her [Constitutional] right[] to equal protection." See Iqbal, 556 U.S. at 664. Ms. Akmal has failed to state a claim for relief against Mr. Alston, and thus, the court GRANTS Mr. Alston's motion to dismiss and DISMISSES Ms. Akmal's claims without prejudice. The court also GRANTS Ms. Akmal leave to amend her complaint within 10 days. See Lucas, 66 F.3d at 248. (explaining that granting leave to amend to pro se plaintiffs is mandatory unless it is clear that amendment could not cure the defects).

D. Mr. Alston's Statute of Limitations Argument

Alternatively, Mr. Alston argues that Ms. Akmal's Bivens claims should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because they are barred by the applicable statute of limitations. (Mot. at 11-12.) The court rejects this argument but will address it nonetheless because it relates to the court's decision to grant Ms. Akmal leave to amend. Generally, a court does not need to grant leave to amend if the statute of limitations has run because amendment in these circumstances would not cure the defects. See, e.g., Teaupa v. U.S. Nat. Bank N.A., 836 F.Supp.2d 1083, 1095 (D. Haw. 2011).

It is not apparent from the face of Ms. Akmal's complaint that the statute of limitations has run. A statute of limitations defense can form the basis of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss if the facts and dates alleged on the face of the complaint indicate that the claim is time-barred. Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010). Dismissal is only appropriate, however, if it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim. Id. Here, Ms. Akmal does not indicate in her complaint when Mr. Alston's alleged statement was made ( see 2d Am. Compl. ¶ 24), and in her response she indicates that she has had multiple recent contacts with OCR ( see Resp. at 11). Although Mr. Alston provides evidence showing that Ms. Akmal's claims arose in 2007, which would make them time-barred under the appropriate statute of limitations, [3] it is not evident on the face of the complaint that Ms. Akmal's claims are time-barred. See Von Saher, 592 F.3d at 969. Thus, the court declines to grant Mr. Alston's motion to dismiss on this ground. If Ms. Akmal amends her complaint, she should take particular care to provide facts showing that her claims are not time-barred.

E. Ms. Akmal has not Properly Moved for Default Against Mr. Alston

Last, with respect to Ms. Akmal's request to enter default, the court finds that entry of default against Mr. Alston is not appropriate at this time. As has already been explained to Ms. Akmal in prior orders, motions for entry of default must be filed and pled in accordance with the Federal and Local Rules. ( See Ord. (Dkt. #33).) Entry of default is governed by Federal Rule of Civil Procedure 55(a), which requires the clerk to enter default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend." Fed.R.Civ.P. 55(a). In order to obtain an entry of default, a party must support its motion by affidavit "show[ing] that the defaulting party was served in a manner authorized by Fed.R.Civ.P. 4." Local Rules W.D. Wash. LCR 55(a). Additionally, if a defaulting party has already entered an appearance, the moving party must provide the defaulting party written notice of its intent to move for entry of default at least 14 days prior to filing its motion. Id.

Ms. Akmal has not complied with Local Rule 55(a). She has not filed an affidavit showing that Mr. Alston was properly served pursuant to Federal Rule of Civil Procedure 4 ( see generally Dkt.), nor has she provided 14 days written notice to Mr. Alston prior to requesting default even though he has appeared in this action ( see Not. of App. (Dkt. #45)). Accordingly, her request for entry of default is DENIED.


For the foregoing reasons, the court GRANTS Mr. Alston's motion to dismiss (Dkt. #46), but provides Ms. Akmal leave to amend her complaint within 10 days of the date of this order. The court warns Ms. Akmal that should she fail to timely amend her complaint in a manner that resolves the deficiencies described herein, the court will dismiss her claims against Mr. Alston without prejudice. Ms. Akmal has already filed two amended complaints ( see Dkt.), and additional opportunities to amend will likely be denied. The court notes also that the City currently has a motion to dismiss pending ( see Dkt. #49). If Ms. Akmal wishes to amend her complaint in response to this pleading, the City's motion will be tested against the new complaint. Accordingly, any new allegations Ms. Akmal wishes to make against the City in response to the pending motion must be included in the amended complaint. If Ms. Akmal amends her complaint, the City is granted ten days in which to file supplemental briefing in response to the amended complaint. Finally, the court also DENIES Ms. Akmal's request for an entry of default ( see Resp. at 2 (Dkt. #48)), because she has failed to comply with the applicable Rules.

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