Durbin v. Tucson, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Mark Roland Durbin,
Plaintiff,
v.
City of Tucson, et al.,
Defendants.
No. CV-25-00507-TUC-RM
ORDER
Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint.
(Doc. 9.) Plaintiff has filed a response, and Defendants have filed a reply. (Docs. 13, 14.)
For the following reasons, the Court will grant Defendants’ Motion to Dismiss and close
this case.
I. Background
Plaintiff brings suit, pro se, against three Defendants—the City of Tucson; Teri
Traaen (Director of the City’s Human Resources Department); and Jennifer Bonham
(Director of the City’s Office of Equal Opportunity Programs). (Doc. 1 at 2.)
The Court infers from emails attached to Plaintiff’s Complaint that Plaintiff may be
a former employee of the City of Tucson. (See Doc. 1-1.) It appears that he requested
certain records from the City after the conclusion of his employment, including his
personnel file and records of any disciplinary actions against him. (Doc. 1-1.) Defendant
Traaen and Defendant Bonham each responded to Plaintiff’s request, indicating that no
investigation would be made and that the matter was closed. (Doc. 1 at 4.) No documents
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were produced to Plaintiff. (Id.) After failing to receive the requested records, Plaintiff
initiated the above-captioned matter. (Id.) Plaintiff asserts claims under the federal
Freedom of Information Act (“FOIA”), and Arizona state law governing the inspection of
public records. (Id. at 3.)
Defendants move to dismiss Plaintiff’s FOIA claims under Fed. R. Civ. P. 12(b)(1)
and/or 12(b)(6) on the basis that FOIA is applicable only to federal agencies. (Doc. 9)
Defendants further argue that the Court should decline to exercise supplemental
jurisdiction over Plaintiff’s remaining state law claims. (Id.) In Plaintiff’s response, he
indicates that he has received assistance from an attorney who advised him that he filed
this action in the wrong court, and he also indicates that he received a follow-up email from
the City after the initiation of this action informing him that the City is not in possession
of the records he requested. (Doc. 13.)
II. Discussion
a. FOIA Claim(s)1
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal of a complaint, or any claim
within it, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) may
be based on either a “‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts
alleged under a cognizable legal theory.’” Johnson v. Riverside Healthcare Sys., LP, 534
F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
699 (9th Cir. 1990)). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
1 In their Motion to Dismiss, Defendants describe the existence of some confusion among
district courts as to the question of whether dismissal must be for lack of subject matter
jurisdiction or for failure to state a claim when an entity or individual that is not a federal
“agency” statutorily subject to FOIA is sued under that law. Given that the Ninth Circuit
has affirmed a district court’s holding that such a dismissal is appropriate under a failure
to state a claim standard, the Court will evaluate Defendants’ Motion under Rule 12(b)(6).
See Drake v. Obama, 664 F.3d 774, 785-86 (9th Cir. 2011) (“FOIA does not apply to any
of the Defendants . . . [t]hus, the District Court correctly dismissed Plaintiffs’ FOIA causes
of action for failure to state a claim.”).
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544, 570 (2007).
FOIA applies only to federal agencies; it is not applicable to state or local
governments, or individuals. St. Michael’s Convalescent Hosp. v. State of Cal., 643 F.2d
1369, 1373 (9th Cir. 1981); Drake v. Obama, 664 F.3d 774, 785-86 (9th Cir. 2011). Here,
Plaintiff has brought suit only against the City of Tucson, a local government entity, and
two individuals employed by the City. (Doc. 1.) As such, Plaintiff has not named any
Defendant that is subject to FOIA, and Plaintiff’s claims under FOIA will therefore be
dismissed.
b. State Law Claim(s)
District courts have supplemental jurisdiction over state law claims that are so
related to the claims within the courts’ original jurisdiction that they form part of the same
case or controversy under Article III of the Constitution. 28 U.S.C. § 1367(a). A district
court may decline to exercise supplemental jurisdiction over remaining state law claims if
all claims over which the court has original jurisdiction have been dismissed. 28 U.S.C. §
1367(c)(3). Here, the Court is dismissing Plaintiff’s FOIA claim—the only claim over
which it has original jurisdiction—and the state courts of Arizona have a much greater
interest in resolving Plaintiff’s claim under Arizona state law governing inspection of the
state’s public records. As such, the Court declines to exercise supplemental jurisdiction
over the state law claim.
III. Leave to Amend
In the Ninth Circuit, “[a] pro se litigant must be given leave to amend his or her
complaint unless it is absolutely clear that the deficiencies of the complaint could not be
cured by amendment.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir.
1988). Here, since the Defendants that Plaintiff has named are not subject to FOIA, and
because Plaintiff’s state law claims should be adjudicated in state court, it is clear that the
deficiencies of Plaintiff’s Complaint could not be cured through amendment. The Court
will therefore deny leave to amend and close this case.
Accordingly,
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IT IS ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Complaint (Doc.
9) is granted. Plaintiff’s Complaint is dismissed without prejudice to filing in state court.
The Clerk of Court is directed to enter judgment in Defendants’ favor and close this case.
Dated this 10th day of April, 2026.
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