United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT ALSTON'S MOTION TO DISMISS
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).
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." (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. ...