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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 the United States, alleging various tort, 

constitutional, and statutory claims. Doc. 16. Defendant moves to dismiss Plaintiff’s 

first amended complaint pursuant to Rule 12(b)(1) and (6). Doc. 18. The motion is fully 

briefed, and no party requests oral argument. Docs. 26, 29. For the following reasons, 

the Court will dismiss Plaintiff’s first amended complaint without prejudice.1

I. Background. 

Plaintiff alleges that he 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 Transportation and Security Administration (“TSA”). Doc. 16 

 

1

 Plaintiff filed a Second Amended Complaint on June 25, 2018. Doc. 17. That 

pleading is not properly before the Court. A plaintiff may amend his pleading only once without leave of Court; later pleadings may be filed only with the opposing party’s written consent or leave of Court. Fed. R. Civ. P. 15(a). 
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at 2. Debra Wheeler was also involved in the EEOC case, as a TSA human resources 

specialist. Id. Plaintiff alleges that Wheeler retaliated against him and interfered with the 

EEOC case by falsely alleging that he stalked and harassed her and shot at her window 

with a gun (id. at 3-5), releasing his private and personally identifiable information to 

third parties (id. at 3), sending federal agents to his home to interrogate him about the 

false allegations (id.), and negligently and intentionally defaming and slandering him (id.

at 5-6). Plaintiff’s first amended complaint refers to the Federal Tort Claims Act 

(“FTCA”), the First and Fourth Amendments, 5 U.S.C. § 552, 18 U.S.C. § 1001(a), 42 

U.S.C. § 1983, and sections of the TSA employee code of conduct. Id. at 7-8. Defendant 

argues that the Court lacks subject matter jurisdiction over Plaintiff’s claims and that 

Plaintiff fails to state a claim for relief. Doc. 18. 

II. Legal Standard. 

“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). 

III. Analysis. 

Defendant’s motion makes a facial attack on Plaintiff’s complaint. The motion 

does not substantially challenge the truth of the facts alleged. See Doc. 18. Thus, under 

12(b)(1), the Court will accept the alleged facts as true. 

 
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A. Federal Tort Claims Act. 

 The FTCA provides a limited waiver of the government’s sovereign immunity for 

certain tort claims. 28 U.S.C. § 1346(b); United States v. S.A. Empresea de Viacao Aerea 

Rio Grandense (Varig Airlines), 467 U.S. 797, 807-08 (1984). But the government 

remains immune from suits for “[a]ny claim arising out of . . . malicious prosecution, 

abuse of process, libel, slander, misrepresentation, deceit, or interference with contract 

rights.” 28 U.S.C. § 2680(h). 

In Sheehan v. United States, 896 F.2d 1168 (9th Cir. 1990), the Ninth Circuit 

explained that “§ 2680(h) bars suit for claims based on conduct which constitutes one of 

the excepted torts, and bars suit for no other claims.” Id. at 1171. The government’s 

alleged conduct, then, is the touchstone for determining whether § 2680(h) bars 

Plaintiff’s claims. If Defendant’s alleged conduct constitutes one of the torts listed in 

§ 2680(h), dismissal is required. 

Defendant argues that Plaintiff’s allegations about Wheeler are based on libel, 

slander, and misrepresentation, and are thus barred under § 2680(h). Doc. 18 at 5-6. 

Plaintiff reiterates the factual bases for his claims and cites various federal and state 

statutes and cases, but he does not meaningfully respond. See Doc. 26. Among his 

allegations, Plaintiff states that Wheeler: 

intentionally, negligently and in bad faith, attempted[ed] to “frame-up” 

Plaintiff; [made] malicious, intentional, false and negligent publications, 

which did defame and slander Plaintiff, causing him extreme anxiety, 

humiliation, worry fear and emotional duress; [and] falsely alleg[ed] 

Plaintiff was seen performing sex act . . . [and that Plaintiff] caused 

damage to a window of [Wheeler’s] home. 

Doc. 16 at 3-4. Plaintiff also alleges that “Wheeler’s contrived and negligent allegations, 

. . . [caused Plaintiff to] suffer extreme embarrassment, anxiety, humiliation, worry, fear 

and emotional duress” (id. at 3), and that Wheeler’s actions “were negligent and done 

intentionally with malice to cause harm, humiliate, defame, slander, harass, annoy and 

alarm [Plaintiff]” (id. at 4). 
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These allegations amount to slander, libel, misrepresentation, and deceit, all of 

which are torts barred by § 2680(h). Doc. 16. And the same alleged conduct gives rise to 

Plaintiff’s express claims for defamation, negligence, harassment, and intentional and 

negligent infliction of emotional distress. Plaintiff’s claims are barred by § 2680(h). See

United States v. Neustadt, 366 U.S. 696, 706-07 (1961) (negligence claim barred as 

actually stating negligent misrepresentation claim); Thomas-Lazear, 851 F.2d at 1207 

(negligent infliction of emotional distress claim restated a slander claim); Leaf v. United 

States, 661 F.2d 740, 742 (9th Cir. 1981) (negligence claims restated misrepresentation 

claim); Bowles, 2011 WL 6182330, at *3 (Plaintiff’s defamation-related claims restated 

libel- and slander-type actions); Rodriquez v. United States, No. CV 04–2312–PHX–

RGS, 2007 WL 2022010, at *5 (D. Ariz. July 10, 2007) (“Section 2680(h) precludes 

claims against the United States based on defamation through its exceptions of claims 

‘arising out of’ libel and slander.”). 

The Court will dismiss Plaintiff’s claims for slander, libel, misrepresentation, and 

deceit, and all claims arising from the same conduct, for lack of subject matter 

jurisdiction under Rule 12(b)(1). 

B. Plaintiff’s Other Bases for Jurisdiction. 

Plaintiff’s complaint cites numerous other statutes. Doc. 16. Defendant argues 

that even if § 2680(h) does not bar Plaintiff’s claims, none of his cited statutes provides a 

basis for jurisdiction. Doc. 18 at 6. The Court agrees. 

 Plaintiff cites 18 U.S.C. § 1001. Doc. 16 at 7. But § 1001 is a criminal statute and 

provides no private right of action. Valencia v. Reyna, No. CV 07-1294-PHX-DGC 

(MEA), 2007 WL 2320077, at *3 (D. Ariz. Aug. 10, 2007) (citing Williams v. 

McCausland, 791 F. Supp. 992, 1001 (S.D.N.Y. 1992)). 

 Plaintiff also cites the Privacy Act, 5 U.S.C. § 552a. Doc. 16 at 7. The Supreme 

Court has held, however, that the Privacy Act does not authorize a cause of action for 

recovery of nonpecuniary mental or emotional harm. FAA v. Cooper, 566 U.S. 284, 299 

(2012). Plaintiff alleges only emotional and mental harm, not pecuniary or economic 
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harm. See Doc. 16 at 3-5. Plaintiff responds that he suffered monetary damages in 

retaining counsel because he believed he would face criminal charges, and that he sought 

emergency medical treatment for the anxiety he suffered. Doc. 26 at 13. But neither 

Plaintiff’s original complaint nor his first amended complaint pled monetary damages 

from retaining counsel or seeking medical treatment. “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). 

 Plaintiff cites § 1983 and the First and Fourth Amendments, and seeks punitive 

damages. Doc. 16 at 7-10. But the United States is immune from constitutional torts and 

punitive damages claims. 28 U.S.C. § 2674 (the United States “shall not be liable . . . for 

punitive damages”); F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994) (“the United States 

simply has not rendered itself liable under § 1346(b) for constitutional tort claims”); 

United States v. Testan, 424 U.S. 392, 400-02 (1976) (the United States has not waived 

its sovereign immunity in actions seeking damages for constitutional violations). And 

§ 1983 “does not provide a cause of action against federal officials acting under color of 

federal law.” Slaughter v. Dep’t of Homeland Sec., No. CV-09-433-PHX-SRB, 2010 WL 

11519167, at *2 (D. Ariz. March 20, 2010) (citing Billings v. United States, 57 F.3d 797, 

801 (9th Cir. 1995)). Even if Plaintiff had properly pled a Bivens claim, no such exists 

where the underlying tortious conduct is barred by § 2680(h). Thomas-Lazear, 851 F.2d 

at 1206-07. 

Plaintiff argues that the Court has supplemental jurisdiction pursuant to 18 U.S.C. 

§ 1367. Doc. 26 at 3. But § 1367 allows the Court to exercise subject matter jurisdiction 

only over claims “that are so related to claims in the action within [the Court’s] original 

jurisdiction that they form part of the same case or controversy under Article III of the 

United States Constitution.” 28 U.S.C. § 1367. Plaintiff has identified no claims within 

the Court’s original jurisdiction. 

 The Court will dismiss Plaintiff’s first amended complaint under Rule 12(b)(1). 
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IV. Leave to Amend. 

 The Court “should freely give leave [to amend] when justice so requires.” Fed. R. 

Civ. P. 15(a)(2). The policy in favor of leave to amend is not only to be heeded, see 

Foman v. Davis, 371 U.S. 178, 182 (1962), it must be applied with extreme liberality, see 

Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 880 (9th Cir. 2001). 

Nevertheless, a motion for leave to amend may be denied “if permitting an amendment 

would prejudice the opposing party, produce an undue delay in the litigation, or result in 

futility for lack of merit.” Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990). 

The party seeking amendment bears the burden of showing that the amendment would 

not result in prejudice, delay or be futile. Id.

Following Defendant’s motion to dismiss (Doc. 18), Plaintiff filed a motion for 

leave to amend his first amended complaint, which did not comply with local rules (see

Doc. 20).2

 Plaintiff also previously attempted to file a second amended complaint. 

Doc. 17. Based on that filing, and the anticipation that a properly filed second amended 

complaint would be futile, Defendant argues the Court should deny leave to amend 

because (1) Plaintiff will likely attempt to improperly reinsert Wheeler as a Defendant 

and the United States is the only proper defendant for actions under the FTCA; and (2) 

Plaintiff’s claims against Wheeler would be barred by the statute of limitations for tort 

actions under Arizona law. Doc. 18 at 4-5 n.4. 

The Court cannot conclude that amendment would be futile. Plaintiff has only 

amended his original complaint once as a matter of course. Doc. 16. And in light of the 

Court’s order, Plaintiff may be able to amend his complaint to assert a proper basis for 

the Court’s subject matter jurisdiction. The Court will dismiss Plaintiff’s complaint 

without prejudice and grant him leave to amend his complaint. 

 

2

 At a scheduling conference with the parties on September 6, 2018, the Court advised Plaintiff to consult the Federal and Local Rules of Civil Procedure. 
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 IT IS ORDERED that Defendant’s motion to dismiss (Doc. 18) is granted. 

Plaintiff’s complaint is dismissed without prejudice, and Plaintiff is granted leave to 

amend. Plaintiff shall file an amended complaint by December 14, 2018. 

Dated this 26th day of November, 2018.