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Bettwieser v. Gans

United States District Court, D. Idaho

February 1, 2017

MARTIN BETTWIESER, Plaintiff,
v.
BILLY GANS, aka WILLIAM GANS and BILLY GANTZ, KELLY KALBFLEISCH, HERSCHEL HOWARD, UNITED STATES POSTAL SERVICE, Defendants.

          REPORT AND RECOMMENDATION RE: U.S. POSTAL SERVICE'S MOTION TO DISMISS (DOCKET NO. 22) MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S MOTION FOR ADDITIONAL FINDINGS/RULINGS (DOCKET NO. 36)

          Honorable Ronald E. Bush Chief U.S. Magistrate Judge.

         Now pending before the Court are (1) Defendant U.S. Postal Service's Motion to Dismiss (Docket No. 22), and (2) Plaintiff's Motion for Additional Findings/Rulings (Docket No. 36). Having carefully considered the record and otherwise being fully advised, the undersigned enters the following Report and Recommendation as to Defendant U.S. Postal Service's Motion to Dismiss, and Memorandum Decision and Order as to Plaintiff's Motion for Additional Findings/Rulings:

         I. BACKGROUND

         Plaintiff Martin Bettwieser, a rural letter carrier in the Boise, Idaho Post Office, initiated this action on October 20, 2015. Plaintiff represents himself pro se. He is in disagreement with the response from Defendant U.S. Postal Service (“USPS”) to his Freedom of Information Act (“FOIA”) request. Specifically, he contends:

That Billy Gans (aka Billy Gantz)[1] was hand delivered a Freedom of Information Act Request and Privacy Act Request that was hand stamped for delivery and delivered on July 27, 2015. A 30 day request time was asked for to view and copy the requested information. No written or oral response was issued or given to the Plaintiff in that time frame.
The Plaintiff mailed a certified letter to Billy Gantz, clearly stating FOIA Officer on the face of the envelope on September 03, 2015, with a letter asking if there were any problems processing the FOIA request and allowing an additional 10 working days to respond to the request. (Exhibit 1).
The certified letter was delivered to an agent on September 05, 2015. On September 10, 2015, the letter was placed unopened in my work area, endorsed “Refused.” On that date I asked Billy Gantz if it was he that endorsed the letter and he said he did. I asked him if he would date it but he refused. I asked him why he refused it and would not date or acknowledge the question and walked off.
Bettwieser has made every effort, to the agency, through the individuals to respond to his FOIA request. It is not clear whether the individual defendant's are acting on there own volition by refusing to respond to the FOIA request, and even going farther as to deny the grievance process, or if they are acting on behalf of the agency (Postal Service). Therefore this court can take jurisdiction under the Freedom of Information Act, specifically U.S.C. Section 552a(g)(1) and 39 CFR 265.7 because all administrative procedures have been exhausted as being futile. Further more grievance procedures are even futile with the individuals .....

         Compl., ¶¶ V-VII, Claim for Relief, p. 3 (Docket No. 1) (emphasis in original). Accordingly, as to Defendant USPS itself, Plaintiff requests that “the court compel the agency by order to answer his FOIA Request and to produce as requested” and “order sanctions and/or an investigation of the . . . agency and/or those responsible for intentional non-compliance to the FOIA request.” Id. at Claim for Relief, pp. 3-4.

         Defendant USPS seeks dismissal of Plaintiff's Complaint under FRCP 12(b)(1), arguing that, like Plaintiff's other FOIA-related action before this Court, Plaintiff's claims against it should be dismissed here because this Court does not have subject matter jurisdiction over Plaintiff's FOIA and Privacy Act claims, given (1) USPS never received a request for records, and, alternatively, (2) Plaintiff failed to exhaust his administrative remedies in any event. See generally USPS Mem. in Supp. of MTD, pp. 4-11 (Docket No. 22, Att. 1). Moreover, USPS moves to dismiss Plaintiff's Complaint against its employees under FRCP 12(b)(6), arguing that individual postal service employees cannot be held civilly liable as a matter of law for any alleged violations of FOIA or the Privacy Act. See id. at pp. 11-15.

         II. REPORT/DISCUSSION

         A. USPS's Motion to Dismiss (Docket No. 22)

         At the outset, it is difficult to determine whether Plaintiff's Complaint is a union-related grievance or one premised upon a mishandled records request under FOIA and/or the Privacy Act (or some combination of the two).[2] USPS's Motion to Dismiss speaks to the second of these two claims and this Report/Memorandum correspondingly follows.

         1. Legal Standards

         a. FRCP 12(b)(1)

         Rule 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. “It is a fundamental precept that federal courts are courts of limited jurisdiction . . . [and] limits upon federal jurisdiction . . . must be neither disregarded nor evaded.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden of establishing that subject matter jurisdiction is proper. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). “When considering a motion to dismiss for lack of subject matter jurisdiction, the court presumes the factual allegations of the complaint are true and draws reasonable inferences in favor of the non-moving party.” Whisnaut v. U.S., 400 F.3d 1177, 1179 (9th Cir. 2005). This tenet that allegations must be taken as true, however, does not extend to legal conclusions contained in the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         b. FRCP 12(b)(6)

         Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Hence, although a complaint attacked by a Rule 12(b)(6) motion to dismiss “does not need detailed factual allegations, ” it must nonetheless set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.

         When reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). “Factual allegations must be enough to raise a right of relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell, 550 U.S. 544, 555. In other words, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. 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. See id. at 556. The plausibility standard is not akin to a “probability requirement, ” but it asks for mor than a sheer possibility that a defendant has acted unlawfully. See id. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 662.

         A dismissal without leave to amend is improper unless it is beyond doubt that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009). In our Circuit, when considering “dismissal for failure to state a claim, 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 and Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not ...


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