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Swartos v. United States Attorneys Office

United States District Court, D. Montana, Missoula Division

September 11, 2018

KENNETH LYNN SWARTOS, Plaintiff,
v.
U.S. ATTORNEY'S OFFICE, Defendant.

          FINDINGS AND RECOMMENDATION

          Jeremiah C. Lynch, United States Magistrate Judge

         This matter is before the Court on motion of the Defendant United States Attorney's Office for the District of Montana seeking dismissal of Plaintiff Kenneth Swartos' complaint under Fed.R.Civ.P. 12(b)(1) and (b)(6). For the reasons discussed the Court recommends the motion be granted.

         I. Background

         Swartos, appearing pro se, alleges that beginning in the late 1980s, and continuing to the present, federal law enforcement officers have been investigating him. He does not, however, identify either the nature of the investigation, or the specific investigative conduct that has occurred. Over the years Swartos has complained about the investigation to numerous public officials, but to no avail. So, he brought this action against the United States Attorney's Office because “it has allowed the so called investigation to continue.” (Doc. 1 at 4.)

         Swartos asserts that the conduct of the United States Attorney's Office's in allowing the investigation to continue violated his due process rights under the Fifth Amendment to the United States Constitution, his right against cruel and unusual punishment protected by the Eighth Amendment, and his First Amendment right to petition the government for redress. He alleges the ongoing investigation and constitutional violations have caused damages to him.

         II. Applicable Law

         A. Motion to Dismiss for Lack of Jurisdiction

          The United States filed its motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) which is the proper procedural rule for challenging the existence of a court's jurisdiction. A defendant may pursue a Rule 12(b)(1) motion either as a facial challenge to the jurisdictional allegations of a pleading, or as a substantive challenge to the facts underlying those allegations. Savage v. Glendale Union High School, Dist. No. 205, Maricopa County, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). A facial challenge is one which contends the allegations “are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

         The success of a facial challenge to jurisdiction depends on the allegations in the complaint, and does not involve the resolution of a factual dispute. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Therefore, in addressing a facial challenge the court must assume the allegations in the complaint are true, and it “must draw all reasonable inferences in [plaintiff's] favor.” Id. See also Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005).

         B. Motion to Dismiss for Failure to State a Claim for Relief

          The United States also moves to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(6) due to Swartos' failure to state a claim upon which relief could be granted. A claim may be dismissed under Rule 12(b)(6) either because it asserts a legal theory that is not cognizable as a matter of law, or because it fails to allege sufficient facts to support an otherwise cognizable legal claim. SmileCare Dental Group v. Delta Dental Plan of California, Inc., 88 F.3d 780, 783 (9th Cir. 1996). In addressing a Rule 12(b)(6) challenge the Court accepts all factual allegations in the complaint as true (Hospital Bldg. Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740 (1976)), and construes the pleading in the light most favorable to the nonmoving party. Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989).

         C. Pro Se Pleadings

         Because Swartos is proceeding pro se the Court must construe his pleading liberally, and “however inartfully pleaded, [it] must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). See also Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). In view of the required liberal construction,

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 ...

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