United States District Court, W.D. Washington, Tacoma
HONORABLE RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant Stackley's Motion
to Dismiss [Dkt. #19], and on Plaintiff West's Motions
for a Conference [Dkt. #22], and to Recuse U.S. Attorney
Annette Hayes [Dkt. #23]. This is one of nine cases West has
filed this year related to her employment at the Puget Sound
Naval Shipyard in Bremerton, which ended in August 2016.
generally complains about race, color and disability
discrimination, and retaliation for complaining about
discrimination. The complaint in this case is particularly
difficult to understand. It appears to be based both on
allegations about what others in the Navy did to her, and on
allegations that the Navy's nuclear fleet is out of
compliance with various regulations. West claims that
“Code 740 Loft Rigger Mechanic Robert M.
Herman's” nuclear qualification expired, with
Any/all and every AOE equipment of the carriers,
submarines any/all vessels or ships Coda 740 Loft Rigger
Mechanic Robert M. Herman has signed, performed maintenances,
inspections, repairs, testing (a), certifications or
re-certifications are uncertified from the date his nuclear
qualification (s) expired to present date of this equal
employment opportunity informal complaint. Per Department of
Defense-Department of the Navy-Puget Sound Naval Shipyard
& IMP-452 3A the Nuclear Program (s) are immediately in
the "REDZONE". Infinite accidents have
occurred and a full complete verbatim investigation must be
implemented. Any/all and every Code 2300 Documents,
TGI'S, Technical Work Documents and Special Purpose (SPS)
equipment Documents/TGI'S/Technical Work Documents are to
be put in a steadfast status and are not to be altered or are
not to be changed/are not to be destroyed or are not to be
[Dkt. # 1 at 9] The relationship between the conclusory
allegations personal to her and the broader allegations about
naval readiness is not clear.
moves for dismissal for lack of subject matter jurisdiction
on most of West's claims, and for failure to state a
plausible claim as to all of them. He argues persuasively
that West's constitutional claims against the United
States (and the Navy, and its Secretary, sued in his official
capacity) are barred by sovereign immunity, and it is
well-established that the United States has not waived this
immunity. See FDIC v. Meyer, 510 U.S. 471, 477
(1994) (the United States has not waived its sovereign
immunity for constitutional claims). And West's claims
against the Secretary fail because she has not alleged that
he personally participated in any alleged violation. Indeed,
West makes only one allegation about Stackley:
SEAN J. STACKLEY is the Acting Secretary of the United States
Navy. As an employer of the Federal Government, the defendant
is empowered to prescribe regulations for the operation of
the Department of the Navy and the conduct of its employees,
and is subject to the anti-discrimination provisions of Title
VII of the Civil Rights Act of 1964, as amended.
[Dkt. #1 at paragraph 3.2] This seems to be an argument that
the Navy or its Secretary is vicariously liable for the
constitutional and other violations West claims.
also points out that West's ADA claim cannot be asserted
against her federal employer. Maish v. Napolitano,
Case No. 12-581-RAJ, 2013 U.S. Dist. LEXIS 153174 (W.D. Wash.
Oct. 24, 2013) (citing 42 U.S.C. §
12111(5)(B)(i) (the federal government is not an
“employer” for purposes of the ADA)).
argues that West's other allegations fail to articulate
any facts that would support her repeated, conclusory
allegations that various individuals
“discriminated” or “retaliated”
against her, or how, or why.
under Rule 12(b)(6) 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). A plaintiffs complaint must allege facts to state a
claim for relief that is plausible on its face. See
Aschcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 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. Although the
Court must accept as true the Complaint's well-pled
facts, conclusory allegations of law and unwarranted
inferences will not defeat a Rule 12(c) motion. Vazquez
v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007);
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001). “[A] plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 129 S.Ct. at 1949 (citing Twombly).
A pro se Plaintiff's complaint is to be
construed liberally, but like any other complaint it must
nevertheless contain factual assertions sufficient to support
a facially plausible claim for relief. Id.
12(b)(6) motion, “a district court should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Cook,
Perkiss & Liehe v. N. Cal. Collection Serv., 911
F.2d 242, 247 (9th Cir. 1990). However, where the facts are
not in dispute, and the sole issue is whether there is
liability as a matter of substantive law, the court may deny
leave to amend. Albrecht v. Lund, 845 F.2d 193,
195-96 (9th Cir. 1988).
response to the motion articulates three slightly different
claims: she appears to claim retaliation for filing three EEO
complaints, related to sexual harassment, asbestos exposure,
and the use of uncertified gear to work on ships. The bulk of
her response is dedicated to the latter issue, but the
relationship between those alleged violations and her
discrimination or retaliation claims remains unclear.
also complains (again) that the attorney representing the
moving party submitted a “prefabricated”
PROPOSED order granting the relief
she sought (dismissal), and in doing so ordered Judge Bryan
(?) to “follow her ...