Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-02388-DMS-POR

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KAREN P. HEWITT United States Attorney STEVE B. CHU Assistant U.S. Attorney California Bar No. 221177 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 557-5682 Attorneys for all Federal Defendants

UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA ) ) ) Defendant. ) ) ) ) ) ______________________________________ ) MICHAEL FOX, Civil Case No. 07CV2388-DMS (POR) FEDERAL DEFENDANTS' REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF'S ACTION Date: Time: Crtrm: Judge: May 16, 2008 1:30 p.m. 10 Hon. Dana Sabraw

[No Oral Argument per local rule Unless Requested by the Court]

Case 3:07-cv-02388-DMS-POR

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I. INTRODUCTION In opposition to the Federal Defendants' motion to dismiss, Plaintiff continues to allege that he is the victim of a vast conspiracy. However, Plaintiff brings forward no new evidence, and instead continues the exercise of making unsubstantiated conclusory allegations that are insufficient to sustain his case. In fact, Plaintiff does not cite a single legal authority in any of the papers he filed in opposition to Defendant's motion to dismiss. It is axiomatic that allegations unsupported by facts or law are generally regarded with suspicion and not considered persuasive. See e.g. Young v. Piller, 2008 WL 1757564 (9th Cir. 2008); Ortega-Miguel v. Keisler, 254 Fed.Appx. 609 (9th Cir. 2007)1/

II. DISCUSSION As Plaintiff raises very little in the way of new evidence or argument, the majority of Plaintiff's contentions will not be addressed here, having already been addressed in Defendant's opening brief. As noted in the opening brief, although a pro se plaintiff is entitled to some degree of latitude in composing a complaint, they still must meet Rule 8's basic standards. See Hilska v. Jones, 217 F.R.D. 16, 21 (D.D.C. 2003). While pro se litigants are afforded additional latitude in composing complaints and pleadings, courts should not act as an advocate for pro se litigants. Daouda v. Dept. of Homeland Security, 2008 WL 1923138 (D. Colo). Courts have dismissed even pro se complaints where they were found to be "a labyrinthine prolixity of unrelated and vituperative charges that defied comprehension" Prezzi v. Schelter, 469 F.2d 691 (2d Cir. 1972); where the complaint is "confusing, ambiguous, redundant, vague, and, in some respects, unintelligible" Wallach v. City of Pagedale, 359 F.2d 57 (8th Cir. 1966)); and where the complaint is "so verbose, confused, and redundant that its true substance, if any, is well disguised" Corcoran v. Yorty, 347 F.2d 222 (9th Cir. 1965)) (all quoted in U.S. Ex. Rel. Dattola v. Nat. Treasury Emp. Union, 86 F.R.D. 496 (W.D. Pa. 1980)). In Brown v. Califano, 75 F.R.D. 497 (D.D.C. 1977), the court dismissed such a complaint as an "untidy assortment of claims that

Unpublished opinions issued after January 1, 2007 may be cited as legal authority pursuant 9th Cir. Rule 36-3. 2

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are neither plainly nor concisely stated, nor meaningfully distinguished from bold conclusions, sharp harangues and personal comments." 75 F.R.D. at 499. Given the confusing, convoluted and vague nature of the text of Plaintiff's Complaint/Petition, Defendant respectfully asserts that it should be dismissed. Further, Plaintiff admits that he has not filed an administrative claim with the FBI prior to filing this lawsuit. (Plaintiff's Answer to Declaration of Ayana K. Washinton at ¶ 1-2.) Specifically, Plaintiff states that he was unaware of the requirement for exhausting his administrative remedies prior to filing a lawsuit in federal court against a federal entity, and instead elected to proceed with a petition and complaint in federal court. Id. It is well settled law that a Plaintiff must first file an administrative claim with the relevant federal agencies prior to filing suit in federal court. 28 U.S.C. § 2675; Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir. 1983); Johnson v. United States, 704 F.2d 1431, 1442 (9th Cir. 1983). Given this admission, Plaintiff's action must also be dismissed on the separate basis of failing to exhaust his administrative remedies. Id.

III. CONCLUSION Plaintiff's complaint is comprised of a series of unsupported conclusory allegations. Plaintiff further admits that he failed to exhaust his administrative remedies prior to filing this lawsuit. Defendant therefore respectfully requests that the Court grant Defendant's motion to dismiss Plaintiff's action. DATED: May 8, 2008 KAREN P. HEWITT United States Attorney /s Steve B. Chu

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STEVE B. CHU Assistant U.S. Attorney Attorneys for all Federal Defendants