United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
before the Court are the following four motions:
Defendant's Motion to Dismiss (ECF No. 8);
Plaintiff's Motion to “Squash” Reply to
Defendant's Motion to Dismiss (ECF No. 17);
Plaintiff's Motion to Amend Complaint (ECF No. 18); and
Defendant's Motion to Strike (ECF No. 19). The Court
finds that the Plaintiff's Complaint is meritless and
that this case should be dismissed with prejudice for failure
to state a claim, as amendment would be futile.
FACTS AND PROCEDURAL HISTORY
2008, the Plaintiff, attended a water aerobics class at the
Lovelock Municipal Swimming Pool. The Defendant's only
unfortunate connection to the Plaintiff is that she was an
attendee at that water aerobics class. There were six women
and one man (the Plaintiff) in attendance, along with two
young female lifeguards who conducted the class. During the
class, several women and both lifeguards observed the
Plaintiff allegedly masturbating in the pool. Ms. Murphy, the
Defendant, as well as another participant from the class,
made a report to the Pershing County Sheriff's Office.
conducting an investigation, the Pershing County
Sheriff's Office concluded that there was probable cause
and issued a trespass notice to the Plaintiff. The Plaintiff
responded by suing James Rowe (then head custodian of the
Lovelock Municipal Swimming Pool), Pershing County, and the
Pershing County Tourism Authority for defamation, among
various other causes of action. In 2013, the case was tried
by a jury, and the jury returned a verdict in favor of the
defendants. Ms. Murphy, the Defendant here, was subpoenaed to
testify at the trial but was not called as a witness.
on these events dating back to 2008, the Plaintiff has now
filed a lawsuit against Ms. Murphy, the Defendant, alleging
multiple causes of action. Pending before the Court is the
Defendant's Motion to Dismiss.
Rule of Civil Procedure 12(b)(6) mandates that a court
dismiss a cause of action that fails to state a claim upon
which relief can be granted. The analysis and purpose of a
Rule 12(b)(6) motion to dismiss for failure to state a claim
is to test the legal sufficiency of a complaint. Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To be
sufficient, a plaintiff must plead facts pertaining to his
own case making a violation plausible, not just possible.
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 556 (2007)) (“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.”). To avoid a Rule 12(b)(6)
dismissal, a complaint does not need detailed factual
allegations; rather, it must plead “enough facts to
state a claim to relief that is plausible on its face.”
Clemens v. Daimler Chrysler Corp., 534 F.3d 1017,
1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at
555); Iqbal, 556 U.S. at 678. The issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.
Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th
Cir. 1997) (quotations omitted).
considering whether a complaint is sufficient to state a
claim, all material allegations are taken as true and
construed in the light most favorable to the plaintiff.
See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898
(9th Cir. 1986). However, a formulaic recitation of a cause
of action with conclusory allegations is insufficient.
Iqbal, 556 U.S. at 677-79 (citing Twombly,
550 U.S. at 556). The factual allegations “must be
enough to raise a right to relief above the speculative level
. . . on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555.
analysis is needed. The Plaintiff's claims are frivolous
and should be dismissed with prejudice for failure to state a
Motion to Dismiss
Plaintiff's first cause of action premised on Title VII
is frivolous and must be dismissed. Title VII prohibits
discrimination based upon an individual's status as a
member of a protected class, only in the employment context.
Tex. Dep't. of Cmty. Affairs v. Burdine, 450
U.S. 248, 259 (1981). The Defendant is not the
Plaintiff's employer nor is the Pershing County School
District, which employs the Defendant. The Defendant's
only connection to the Plaintiff is that she was a fellow
pool participant eleven years ago and reported conduct by the
Plaintiff to law enforcement. Therefore, no liability exists
under Title VII, and the Plaintiff's cause of action
under Title VII must be dismissed with prejudice for failure
to state a claim.
Plaintiff's second cause of action for “abuse of
process” is frivolous and must be dismissed. While the
origins of the Plaintiff's second cause of action are not
entirely clear, the Plaintiff titles this claim as one for
“abuse of process-(power)” and cites to 36 C.F.R.
§ 1275.16. However, this section is entirely irrelevant
and does not provide the Plaintiff a cause of action. The
section cited relates to presidential historical materials
and, specifically, historical materials possessed by former
President Richard Nixon. Clearly, reporting the Plaintiff
masturbating during a water aerobics class at a municipal
swimming pool, could not possibly implicate the regulatory
section cited by the Plaintiff nor can the Plaintiff sue for
abuse of ...