Clark v. Lynch
| Decision Date | 29 September 2016 |
| Docket Number | Case No. 16-4037-SAC-KGS |
| Citation | 213 F.Supp.3d 1347 |
| Parties | Eric S. CLARK, Plaintiff, v. Loretta E. LYNCH, United States Attorney General, Defendant. |
| Court | U.S. District Court — District of Kansas |
Eric S. Clark, Williamsburg, KS, pro se.
Gary D. Feldon, Karen S. Bloom, U.S. Department of Justice, Washington, DC, for Defendant.
This is a pro se civil rights action alleging the denial of plaintiff's Second Amendment rights and the violation of other constitutional rights. This case is now before the court upon defendant's motion to dismiss plaintiff's second amended complaint. Defendant seeks dismissal for lack of jurisdiction, pursuant to FED.R.CIV.P. 12(b)(1), and failure to state a claim, pursuant to FED.R.CIV.P. 12(b)(6).
A court liberally construes a pro se complaint and applies "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). But, the court "will not supply additional factual allegations to round out a [pro se ] plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico , 113 F.3d 1170, 1173–74 (10th Cir. 1997).
When deciding whether plaintiff's complaint "fails to state a claim upon which relief may be granted," the court must determine whether the complaint contains "sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Under FED.R.CIV.P. 12(b)(1) of the Federal Rules of Civil Procedure, a court must dismiss a claim if convinced there is a lack of subject matter jurisdiction. "A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Holt v. U.S. , 46 F.3d 1000, 1003 (10th Cir. 1995).
Plaintiff alleges jurisdiction under 28 U.S.C. § 1331 and Article III, section 2 of the Constitution of the United States. Plaintiff also alleges that the amount in controversy exceeds the $75,000 threshold in the diversity jurisdiction statute, 28 U.S.C. § 1332.
Plaintiff alleges that in 2003 he was convicted of a felony—"involuntary manslaughter-DUI"—in Kansas and briefly imprisoned. Plaintiff was released on May 4, 2003. More than ten years later, on two occasions relevant to this lawsuit, plaintiff was turned down when he tried to acquire a firearm from a federal firearms licensee.1 The first time was October 23, 2014. The second time was February 8, 2016.
Plaintiff contends that his right to keep and bear arms was restored on May 5, 2013 and that he has not had another disqualifying offense. Plaintiff claims that his right to bear arms was unconstitutionally infringed when he was denied his right to acquire a firearm on October 23, 2014 and February 8, 2016. Plaintiff further contends that the background check system implemented in 18 U.S.C. § 922(t) and authorized under 18 U.S.C. § 922(g)(1) acts as an unconstitutional prior restraint upon his Second Amendment right to bear arms and also violates his rights to Due Process and against Double Jeopardy.
The Attorney General is the sole defendant in this case.
Plaintiff does not allege that defendant Lynch personally participated in actions which denied plaintiff his constitutional rights. Therefore, the court assumes that plaintiff is suing defendant Lynch in her official capacity as Attorney General of the United States. This is effectively the same as suing the United States. Kentucky v. Graham , 473 U.S. 159, 165–66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ; Merida Delgado v. Gonzales , 428 F.3d 916, 919 (10th Cir. 2005).
The United States may not be sued except in the manner in which it consents to be sued. U.S. v. Murdock Mach. and Engineering Co. of Utah , 81 F.3d 922, 929 (10th Cir. 1996). This applies to suits for damages. U.S. v. Testan , 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Consent happens "only when Congress unequivocally expresse[s] its intention to waive the government's sovereign immunity in the statutory text." Murdock Mach. and Engineering , 81 F.3d at 930 (interior quotation omitted). Waivers of sovereign immunity are traditionally strictly construed in favor of the sovereign. U.S. v. Nordic Village, Inc. , 503 U.S. 30, 33–34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992).
Plaintiff, as explained below, has not cited authority which supports finding consent by the United States to be sued under the circumstances alleged in the complaint. Rather, plaintiff argues that the United States is required to cite statutory or Constitutional authority for claiming sovereign immunity. This argument, however, is contrary to the case authority cited in the previous paragraph.
Plaintiff cites 28 U.S.C. § 1331. But, this statute, which confers general federal question jurisdiction, does not waive the government's sovereign immunity. Gonzales , 428 F.3d at 919 ; Lonsdale v. United States , 919 F.2d 1440, 1444 (10th Cir. 1990) ; U.S. v. Dillard , 884 F.Supp.2d 1177, 1183 (D. Kan. 2012). Plaintiff also cites 28 U.S.C. § 1332, which concerns lawsuits between citizens of different states, subjects of foreign states or foreign states. The statute does not concern lawsuits by or against the United States and does not expressly waive the sovereign immunity of the United States. See Dawkins v. U.S. Drug Enforcement Administration , 1998 WL 152937 *1 (6th Cir. 3/23/1998) ; General Ry. Signal Co. v. Corcoran , 921 F.2d 700, 703–04 (7th Cir. 1991) ; Reading v. U.S. , 506 F.Supp.2d 13, 20 (D.D.C. 2007). Plaintiff has further cited Article III, section 2 of the Constitution. This section extends the judicial power of the federal court to cases in which the United States is a party and to cases arising under the Constitution and laws of the United States. But, this language is not considered an express waiver of sovereign immunity. See Taylor v. U.S. , 292 Fed.Appx. 383, 385 (5th Cir. 2008) ; Thurman v. Internal Revenue Agency , 2014 WL 7507241 *2 (D. Ariz. 12/16/2014) ; Smith v. Krieger , 643 F.Supp.2d 1274, 1291 (D. Colo. 2009) ; Noll v. Peterson , 2001 WL 721733 *3 (D. Idaho 5/14/2001) ; see also, Fetter v. U.S. , 1992 WL 203890 *1 (9th Cir. 1992) ().
Finally, plaintiff refers to 42 U.S.C. § 1983 which provides a cause of action against a "person" who under color of state law deprives a citizen of his rights under the Constitution and federal law. Again, this is not an unequivocal waiver of the United States' sovereign immunity. Beals v. U.S. Dept. of Justice , 460 Fed.Appx. 773, 775 (10th Cir. 2012) ; Bourdon v. Mabus , 813 F.Supp.2d 200, 209–10 (D.D.C. 2011) ; Johnson v. U.S. Social Security Administration , 2005 WL 418543 *3 (N.D. Cal. 2005) ; The Supreme Court has held that a State is not a "person" for purposes of § 1983. Will v. Michigan Dept. of State Police , 491 U.S. 58, 70–71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Similarly, the United States is not a "person." U.S. v. Vital Health Products, Ltd. , 786 F.Supp. 761, 778 (E.D. Wis. 1992)aff'd , 985 F.2d 563 (7th Cir. 1993). Further, plaintiff has not alleged that the United States acted under color of state law as required for liability under § 1983. See Beals , 460 Fed.Appx. at 775 (). For these reasons, the court does not have jurisdiction to consider plaintiff's damages claims against defendant in her official capacity. To reiterate, plaintiff does not allege facts to support a claim against defendant in her individual capacity. Therefore, plaintiff has not alleged facts to support a viable claim for damages relief.
Standing is a jurisdictional prerequisite. Dias v. City and County of Denver , 567 F.3d 1169, 1176 (10th Cir. 2009) ; Phelps v. Hamilton , 122 F.3d 1309, 1316 (10th Cir. 1997). Plaintiff has the burden of showing standing. Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiff also has the burden of adequately alleging a plausible claim of injury to support standing. COPE v. Kansas State Bd. of Educ. , 821 F.3d 1215, 1221 (10th Cir. 2016). "Federal courts scrupulously guard the boundaries of their jurisdiction; they are duty-bound not to permit a standing determination to rest on speculation or conjecture." New Mexico Off – Highway Vehicle Alliance v. U.S. Forest Service , 645 Fed.Appx. 795, 804 (10th Cir. 2016). This court recently recited the elements of standing from a Tenth Circuit opinion in a case involving this plaintiff:
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