United States District Court, D. Idaho
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.
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
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) 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.
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 .....
¶¶ 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.
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.
USPS's Motion to Dismiss (Docket No. 22)
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). USPS's Motion to
Dismiss speaks to the second of these two claims and this
Report/Memorandum correspondingly follows.
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,
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.
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.
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 ...