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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Mark D. Davenport, 

Plaintiff, 

v. 

United States Department of Homeland 

Security, 

Defendant. 

No. CV18-00625-PHX-DGC 

ORDER 

 Pro se plaintiff Mark D. Davenport sued Defendants Debra Wheeler, James 

Lundquist, and Kirstjen Neilson, Secretary of the Department of Homeland Security 

(“DHS”). Doc. 34. Defendants move to dismiss Plaintiff’s second amended complaint 

pursuant to Rule 12(b)(1) and (6). Doc. 43. The motion is fully briefed. Docs. 46, 47. 

For the following reasons, the Court will dismiss Plaintiff’s second amended complaint 

with prejudice. 

I. Background. 

Plaintiff began participating in an Equal Employment Opportunity Commission 

(“EEOC”) case in April 2015 as a non-attorney representative for his fiancé, a former 

employee of the Department of Transportation (“TSA”). Doc. 34 at 5. Debra Wheeler was 

involved in the EEOC case as a TSA human resources specialist. Id. at 6. According to 

Plaintiff, his fiancé experienced discriminatory and retaliatory conduct by TSA, which 

Plaintiff opposed through several EEOC complaints and in proceedings before an 

Administrative Law Judge. 
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 Plaintiff alleges that Wheeler accessed his fiancé’s personal contact information in 

TSA’s record system without her consent or department authorization and disclosed that 

information to a third party, including his telephone number and home address. Id. at 6, 7. 

According to Plaintiff, Wheeler falsely alleged to federal law enforcement that Plaintiff 

had posed as a federal agent, stalked her at her home, performed a sex act in front of her 

home, and shot at her window with a gun. Id. at 6-9. Plaintiff asserts that Lundquist 

released his Social Security number, date of birth, driver’s license information, and banking 

account information to Wheeler. Id. at 9. 

II. Legal Standards. 

 “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for 

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack, the challenger 

disputes the truth of the allegations that, by themselves, would otherwise invoke federal 

jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. “In a facial attack, the challenger 

asserts that the allegations contained in the complaint are insufficient on their face to 

invoke federal jurisdiction.” Id. “The district court resolves a facial attack as it would a 

motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s allegations as true and 

drawing all reasonable inferences in the plaintiff’s favor, the court determines whether the 

allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. 

Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). Defendants’ 12(b)(1) motion is a facial 

attack because Defendants, for purposes of the motion, do not substantially challenge the 

truth of the facts alleged in Plaintiff’s complaint. Doc. 43. 

A successful motion to dismiss under Rule 12(b)(6) must show either that the 

complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its 

theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint 

that sets forth a cognizable legal theory will survive a motion to dismiss as long as it 

contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)). A claim has facial plausibility when “the plaintiff pleads factual content 
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that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id., 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). When 

analyzing a complaint for failure to state a claim to relief under Rule 12(b)(6), the wellpled factual allegations are taken as true and construed in the light most favorable to the 

nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal 

conclusions couched as factual allegations are not entitled to the assumption of truth, Iqbal, 

556 U.S. at 680, and therefore are insufficient to defeat a motion to dismiss for failure to 

state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). 

III. Analysis. 

Plaintiff’s second amended complaint alleges two Privacy Act violations, two Title 

VII violations, and a Fourth Amendment violation. Doc. 34 at 9-13. 

A. The Privacy Act. 

 Section 552a(e)(5) of the Privacy Act provides that “[e]ach agency that maintains a 

system of records shall maintain all records which are used by the agency in making any 

determination about any individual with such accuracy, relevance, timeliness, and 

completeness as is reasonably necessary to assure fairness to the individual in the 

determination.” 5 U.S.C. § 552a(e)(5). A plaintiff may sue for failure to meet this 

obligation, but, as Defendants note, the Privacy Act “only permits suits against an ‘agency,’ 

see 5 U.S.C. § 552a(g)(1), and does not apply to individual defendants.” Doc. 43 at 4; see 

Rouse v. U.S. Dept. of State, 567 F.3d 408, 413 n.3 (9th Cir. 2009); see Hewitt v. Grabicki, 

794 F.2d 1373, 1377 (9th Cir. 1986); Hurry v. Fin. Indus. Regulatory Auth. Inc., No. CV14-02490-PHX-ROS, 2015 WL 11118114, at *7 (D. Ariz. Aug. 5, 2015). Plaintiff asserts 

violations only against Wheeler and Lundquist. See Doc. 34 at 9-10. 

Plaintiff responds with an extensive elaboration of his factual allegations and 

citations to federal law discussing the Privacy Act, but does not clearly respond to 

Defendants’ arguments. Doc. 45 at 1-22. Although Plaintiff’s Counts 1 and 2 mention 

only Wheeler and Lundquist, he asserts that he also named the DHS Secretary in his 

complaint and seems to ask the Court to construe Counts 1 and 2 as being alleged against 
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Secretary Nielsen, as well. See id. at 2. But “Plaintiff cannot amend his . . . complaint 

merely by discussing unpled claims in a response to a motion to dismiss.” Piper v. Gooding 

& Co. Inc., No. CV-18-00244-PHX-DLR, 2018 WL 924947 (D. Ariz. Feb. 15, 2018). Nor 

can the Court look to Plaintiff’s proposed amendments on this issue because Counts 1 and 

2 in Plaintiff’s proposed third amended complaint remain unchanged. See Doc. 46 at 10. 

Defendants also argue that Plaintiff has failed again to sufficiently plead pecuniary 

and economic harm. Docs. 34 at 12, 43 at 7-9, 33 at 4-5; FAA v. Cooper, 566 U.S. 284, 

299, 304 (2012). Plaintiff alleges that he has suffered “monetary damages caused as a 

result of the stress and impact on [his] physical health and necessity to retain counsel,” and 

“[p]ecuniary damages for medical expenses and other costs caused as a direct result of 

Defendants’ actions.” Doc. 34 at 2, 12. These general statements are insufficient to plead 

“tangible economic loss” from the alleged Privacy Act violations. Cooper, 566 U.S. at 

303. The Court will dismiss Counts 1 and 2. 

B. Title VII Claims. 

 Section 2000e-16 “describes the parameters within which an individual may sue the 

federal government for a violation of Title VII, stating in pertinent part . . . [that in a civil 

action under § 2000e-5] the head of the department, agency, or unit, as appropriate, shall 

be the defendant.” Mahoney v. U.S. Postal Serv., 884 F.2d 1194, 1198 (9th Cir. 1989) 

(quoting 42 U.S.C. § 2000e-16(c)). Thus, a plaintiff “must name the head of the employing 

agency or department as the party defendant.” Alhuwalia v. U.S. Postal Serv., No. 88-

6179, 1990 WL 140714, at *1 (9th Cir. Sept. 28, 1990); see also Kimmons v. Veterans 

Admin. Hosp., No. 87-2356, 1988 WL 82846, at *1 (9th Cir. July 29, 1988) (citing Koucky 

v. Dep’t of Navy, 820 F.2d 300, 302 (9th Cir. 1987)); Cupp v. Veterans Admin. Hosp., 677 

F. Supp. 1018, 1019 (N.D. Cal. 1987) (citing White v. Gen. Servs. Admin., 652 F.2d 913, 

916 n.4 (9th Cir. 1981)). 

 Counts 3 and 4 allege retaliation by Defendants under 42 U.S.C. § 2000e “for 

participation in protected activity.” Doc. 34 at 10-11. Defendants argue in their motion 
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that Plaintiff cannot assert Title VII claims against Wheeler and Lundquist, and that he 

lacks standing to assert a Title VII claim against Secretary Nielsen. Doc. 43 at 9. 

Plaintiff does not address his Title VII claims or Defendants’ arguments. Doc. 45. 

Wheeler and Lundquist are improperly named defendants because neither is the head of 

the relevant employing agency. And Plaintiff cannot assert Title VII claims against 

Secretary Nielsen because he does not allege that had an employment relationship with 

DHS. “Title VII protections do not apply where there is no employment relationship.” 

DaOro v. Eskaton, No. 2:11-cv-0960-KJM-JFM, 2013 WL 789120, at *3 (E.D. Cal. March 

1, 2013) (citing cases); see also Waisgerber v. City of Los Angeles, 406 Fed. App’x 150, 

151 (9th Cir. 2010) (citing Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th 

Cir. 1980)). 

C. Fourth Amendment Claim. 

 Plaintiff asserts that “Defendant’s conduct as alleged above constitutes an 

unreasonable search or seizure of Plaintiff’s personal information without proper warrant 

or authorization.” Doc. 34 at 12. Defendant argues that Plaintiff fails to state a Fourth 

Amendment claim because he does not allege having an expectation of privacy in his 

fiancé’s emergency contact information, nor does he allege that Wheeler’s disclosure to 

Lundquist was indiscriminate or public. Doc. 43 at 10. 

 Count 5 pleads no unreasonable restriction of movement, nor a physical intrusion 

on Plaintiff’s person, house, papers, and effects, or invasion of a protected privacy interest 

that Plaintiff had in his fiancé’s contact information. See Patel v. City of Los Angeles, 738 

F.3d 1058, 1061 (9th Cir. 2013); Bettin v. Maricopa County, No. CIV 04-02980 PHX 

MEA, 2007 WL 1713319, at *9-*10 (D. Ariz. June 12, 2007); see also In re Crawford, 194 

F.3d 954, 958-59 (9th Cir. 1999). Plaintiff’s response does not mention his Fourth 

Amendment claim, nor does he clearly respond to Defendants’ arguments. While other 

parts of Plaintiff’s complaint allege specific conduct by Defendants, he does not specify 

which defendant Count 5 refers to, nor what conduct constituted an unreasonable search or 

seizure. The Court will not write Plaintiff’s complaint for him. Hearns v. San Bernardino 
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Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008); see also McHenry v. Renne, 84 F.3d 

1172, 1180 (9th Cir. 1996).

IV. Leave to Amend. 

 Plaintiff has filed a motion to amend his second amended complaint. Doc. 46. 

Defendants argue that further amendment would be futile. Docs. 43, 48. Plaintiff seems 

to concede that his Title VII and Fourth Amendment claims should be dismissed, as he 

fails to address those counts and Defendants’ arguments. He asks only that the Court deny 

the motion “to dismiss claims related to the Privacy Act violations.” Doc. 45 at 26. 

As noted, Wheeler and Lundquist are improperly named individual defendants in 

Plaintiff’s Privacy Act claims, and Plaintiff has failed again to plead sufficiently his 

specific pecuniary and economic harm. Doc. 34 at 12; Cooper, 566 U.S. at 299, 304. 

Plaintiff’s proposed third amended complaint adds only that Plaintiff “firmly believed he 

would [be] criminally prosecuted,” he “secured legal counsel resulting [in] more than ten 

thousand dollars in expenses along with over four thousand dollars in co-pays for a medical 

emergency room visit shortly after Federal Agents confronted” him, and he “believed he 

was suffering from a heart attack caused by the stress and worry placed upon him by 

Wheeler’s manufactured false allegations.” Doc. 46-1 at 9. These allegations do not plead 

tangible economic harm caused by disclosure of his personal information under the Privacy 

Act. They instead appear linked to Wheeler’s allegedly false allegations about Plaintiff. 

The proposed third amended complaint does not address this insufficiency or any of the 

remaining deficiencies identified in Defendants’ motion to show that amendment would 

not be futile. 

Plaintiff has had three opportunities to plead viable claims against Defendants and 

has failed to do so. The Court “may deny leave to amend where a plaintiff has 

‘[r]epeated[ly] fail[ed] to cure deficiencies by amendments previously allowed.’” Dutcius 

v. Meritage Homes of Ariz., Inc., 462 Fed, App’x 658, 659-60 (9th Cir. 2011) (citing 

McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809-10 (9th Cir. 1988)). The Court will 

dismiss Plaintiff’s second amended complaint with prejudice. 
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 IT IS ORDERED: that Defendants’ motion to dismiss (Doc. 43) is granted. 

Plaintiff’s complaint is dismissed with prejudice, and Plaintiff’s motion to amend (Doc. 46) 

is denied. Plaintiff’s motion for leave to file surreply (Doc. 49) is found to be moot. The 

Clerk of Court is directed to terminate this action. 

 Dated this 31st day of May, 2019.