United States District Court, N.D. Texas, Dallas Division
HIIREEN A. JONES, Plaintiff,
FACEBOOK, INC, Defendant.
MEMORANDUM OPINION AND ORDER
Lindsay, United States District Judge
the court is Defendant Facebook, Inc.'s Motion to Dismiss
Plaintiff's Complaint (Doc. 5) (“Motion”),
filed August 9, 2019. Upon careful consideration of the
Motion, pleadings, record, and applicable law, the court
grants Facebook's Motion to Dismiss
(Doc. 5) and dismisses with prejudice this
18, 2019, Plaintiff Hiireen A. Jones
(“Plaintiff”) filed this action against Facebook
in Dallas County Court of Law No. 1, alleging that a
“Remote Neural Monitoring device” was implanted
in Plaintiff's body. Pl.'s Original Pet. ¶ 4.
Plaintiff further alleges that “[t]here is a 3rd party
connection with the company Facebook.” Id.
Additionally, Plaintiff asserts that the implantation of this
device is a “form of slavery and terrorism, ”
which is a violation of Plaintiff's constitutional
rights. Plaintiff seeks $1, 000, 000, 000 in damages. On
August 5, 2019, Facebook removed this action to federal court
based on diversity of citizenship[*] and federal question jurisdiction.
On August 9, 2019, Facebook filed its Motion to Dismiss,
asserting that Plaintiff has failed to state a claim upon
which relief can be granted.
Standard for Rule 12(b)(6) - Failure to State a
defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Reliable
Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir.
2008); Guidry v. American Pub. Life Ins. Co., 512
F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility
test “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations omitted). While a complaint need not
contain detailed factual allegations, it must set forth
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (citation
omitted). The “[f]actual allegations of [a complaint]
must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Id. (quotation marks, citations, and
footnote omitted). When the allegations of the pleading do
not allow the court to infer more than the mere possibility
of wrongdoing, they fall short of showing that the pleader is
entitled to relief. Iqbal, 556 U.S. at 679.
reviewing a Rule 12(b)(6) motion, the court must accept all
well-pleaded facts in the complaint as true and view them in
the light most favorable to the plaintiff. Sonnier v.
State Farm Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th
Cir. 2007); Martin K. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
In ruling on such a motion, the court cannot look beyond the
pleadings. Id.; Spivey v. Robertson, 197
F.3d 772, 774 (5th Cir. 1999). The pleadings include the
complaint and any documents attached to it. Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th
Cir. 2000). Likewise, “‘[d]ocuments that a
defendant attaches to a motion to dismiss are considered part
of the pleadings if they are referred to in the
plaintiff's complaint and are central to [the
plaintiff's] claims.'” Id. (quoting
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987
F.2d 429, 431 (7th Cir. 1993)). In this regard, a document
that is part of the record but not referred to in a
plaintiff's complaint and not attached to a
motion to dismiss may not be considered by the court in
ruling on a 12(b)(6) motion. Gines v. D.R. Horton,
Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)
(citation omitted). Further, it is well-established and
‘“clearly proper in deciding a 12(b)(6) motion
[that a court may] take judicial notice of matters of public
record.”' Funk v. Stryker Corp., 631 F.3d
777, 783 (5th Cir. 2011) (quoting Norris v. Hearst
Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing
Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir.
ultimate question in a Rule 12(b)(6) motion is whether the
complaint states a valid claim when it is viewed in the light
most favorable to the plaintiff. Great Plains Trust Co.
v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th
Cir. 2002). While well-pleaded facts of a complaint are to be
accepted as true, legal conclusions are not “entitled
to the assumption of truth.” Iqbal, 556 U.S.
at 679 (citation omitted). Further, a court is not to strain
to find inferences favorable to the plaintiff and is not to
accept conclusory allegations, unwarranted deductions, or
legal conclusions. R2 Invs. LDC v. Phillips, 401
F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court
does not evaluate the plaintiff's likelihood of success;
instead, it only determines whether the plaintiff has pleaded
a legally cognizable claim. United States ex rel. Riley
v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376
(5th Cir. 2004). Stated another way, when a court deals with
a Rule 12(b)(6) motion, its task is to test the sufficiency
of the allegations contained in the pleadings to determine
whether they are adequate enough to state a claim upon which
relief can be granted. Mann v. Adams Realty Co., 556
F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro Indep.
Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996),
rev'd on other grounds, 113 F.3d 1412 (5th Cir.
1997) (en banc). Accordingly, denial of a 12(b)(6) motion has
no bearing on whether a plaintiff ultimately establishes the
necessary proof to prevail on a claim that withstands a
12(b)(6) challenge. Adams, 556 F.2d at 293.
contends that Plaintiff's claims should be dismissed as
Plaintiff does not identify any state of federal law that
applies or assert any particular cause of action.
Additionally, Plaintiff does not identify any wrongful act by
Facebook and only makes conclusory statements regarding any
alleged constitutional violations without any supporting
allegations. Facebook also asserts that any constitutional
claims against it should be dismissed with prejudice, as it
is not a state actor. The court agrees.
has not asserted any allegations that Facebook, as a private
company, has committed any wrongdoing under the color of law,
or that it conspired with a state actor to commit any
deprivation of constitutional rights. See Lincoln v.
Brown & Williams, 180 F.3d 261, at *1 (5th Cir.
1999) (citing Adickes v. S.H. Kress & Co., 398
U.S. 144, 150-52 (1970)). The court, therefore, concludes
that Plaintiff not only failed to sufficiently plead
allegations supporting a plausible claim, but Plaintiff also
failed to raise any plausible claim for recovery
Plaintiff did not file a response to Facebook's Motion to
Dismiss. As Plaintiff presented no argument in defense of the
claims asserted in the Original Petition, the court concludes
that Plaintiff has abandoned the claims for violations of
Plaintiff's Constitutional Rights and Freedom of
Individuality. See Black v. Panola Sch. Dist., 461
F.3d 584, 588 n.1 (5th Cir. 2006) (concluding Plaintiff
abandoned or waived her retaliatory abandonment claim when
she failed to defend her claim in response to a motion to
dismiss). For these reasons, the court will grant
Facebook's Motion to Dismiss as it relates to all claims
asserted by Plaintiff.
court also determines that giving Plaintiff an opportunity to
amend would be futile. The provision of Rule 15(a)(2) of the
Federal Rules of Civil Procedure that states “[t]he
court should freely give leave when justice so
requires” is not without limitation. The decision to
allow amendment of a party's pleadings is within the
sound discretion of the district court. Foman v.
Davis, 371 U.S. 178, 182 (1962); Norman v. Apache
Corp., 19 F.3d 1017, 1021 (5th Cir. 1994) (citation
omitted). In determining whether to allow an amendment of the
pleadings, a court considers the following: “undue
delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of
amendment.” Foman, 371 U.S. at 182;
Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563,
566 (5th Cir. 2003) (citation omitted). As Plaintiff cannot
plead sufficient allegations to support his assertion that a
“Remote Neural Monitoring device” has been
implanted in Plaintiff's body, the court concludes that
allowing leave to amend would be futile and would
unnecessarily delay the resolution of this action.
Accordingly, the court will not allow Plaintiff an
opportunity to file amended pleadings.