Lenhardt v. Fed. Republic of Ger.
| Decision Date | 20 August 2021 |
| Docket Number | 21-4048-TC-ADM |
| Parties | URSULA LENHARDT, Plaintiff, v. FEDERAL REPUBLIC OF GERMANY, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND REPORT AND RECOMMENDATION
Pro se plaintiff Ursula Lenhardt's complaint names as defendants the Federal Republic of Germany (“Germany”) German Minister of Foreign Affairs Heiko Maas (“Maas”), the Foreign Ministry of Germany (the “Ministry”), and certain German consulate employees located in Chicago, Illinois. (ECF 1.) Ms. Lenhardt asserts a claim under 42 U.S.C. § 1983, alleging that defendants violated her First Amendment rights when they did not issue her a new German passport in retaliation for a lawsuit she filed in Germany. In conjunction with Ms Lenhardt's complaint, she also filed a Motion to Proceed In Forma Pauperis. (ECF 3.) As discussed in further detail below, the court grants Ms. Lenhardt leave to proceed in forma pauperis (“IFP”) but recommends that the presiding district judge dismiss her complaint without leave to amend.
Title 28 U.S.C. § 1915 allows courts to authorize commencing a civil action “without prepayment of fees or security therefor, by a person who submits an affidavit that . . . the person is unable to pay such fees or give security therefor.” Proceeding IFP “in a civil case is a privilege, not a right-fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). The decision to grant or deny IFP status under § 1915 lies within “the sound discretion of the district court.” Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). After carefully reviewing the information Ms. Lenhardt provided in the financial affidavit in support of her motion, the court waives the filing fee required for her to commence this lawsuit. Ms. Lenhardt is granted leave to proceed IFP.
When a plaintiff proceeds IFP, the court may screen the complaint under 28 U.S.C. § 1915(e)(2)(B). The court may dismiss the complaint if it determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The purpose of § 1915(e)(2) is to “discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate.” Buchheit v. Green, 705 F.3d 1157, 1161 (10th Cir. 2012).
In addition, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). “[F]ederal courts are courts of limited subject-matter jurisdiction, ” and they “may only hear cases when empowered to do so by the Constitution and by act of Congress.” Gad v. Kan. State Univ., 787 F.3d 1032, 1035 (10th Cir. 2015) (quotation omitted). The power to hear a case “can never be forfeited or waived, ” and therefore the court always has an independent obligation to determine whether subject-matter jurisdiction exists. Id. (quotation omitted); see also Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) ().
Dismissal under § 1915(e)(2)(B)(ii) is governed by the same standard that applies to motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). To withstand dismissal, “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. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not sufficient to state a claim for relief. Id. Dismissal of a pro se plaintiff's complaint for failure to state a claim is “proper only where it is obvious that the plaintiff cannot prevail on the facts . . . alleged and it would be futile to give [plaintiff] an opportunity to amend.” Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001). The court must “accept the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).
Similarly, to determine whether a plaintiff has adequately alleged subject-matter jurisdiction, the court looks to the face of the complaint. Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991). The court accepts “the well-pleaded factual allegations as true, . . . but ignor[es] conclusory allegations of jurisdiction.” Kucera v. CIA, 347 F.Supp.3d 653, 659 (D.N.M. 2018) (), aff'd, 754 Fed.Appx. 735 (10th Cir. 2018). “The party seeking the exercise of jurisdiction in his favor ‘must allege in his pleading the facts essential to show jurisdiction.'” Penteco, 929 F.2d at 1521 (quoting McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
Because Ms. Lenhardt is proceeding pro se, the court construes her pleadings liberally and holds them “to a less stringent standard than those drafted by attorneys.” Johnson v. Johnson, 466 F.3d 1213, 1214 (10th Cir. 2006). In doing so, the court does not “assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The plaintiff still bears “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Id.
Ms. Lenhardt's complaint alleges that she is a German citizen. (ECF 1, at 4.) She states that, before coming to the United States, she filed a lawsuit in Germany against family members of a former-Nazi judge who allegedly caused her brother's death. (Id. at 2, 5-7.) The complaint is unclear as to when Ms. Lenhardt filed this lawsuit, but she states she objected to this “misconduct[] since 2008, beginning by reporting it to the police and then filing a lawsuit.” (Id. at 7.) Ms. Lenhardt alleges that, after she moved to the United States, she applied for a new German passport in 2017, and again in 2020. (Id. at 2, 5-6, 8.) She contends that defendants wrongfully refused to issue the passport in retaliation for her exercising her First Amendment rights by filing the lawsuit in Germany. (See Id. at 2, 5-13.) Ms. Lenhardt brings a § 1983 First Amendment retaliation claim against defendants. (Id. at 14.[1]) She also alleges, in a mostly conclusory fashion, that defendants' alleged conduct violated “a number of other protected civil rights pursuant to American, European and German law.” (Id. at 2; see also Id. at 8, 13-14, 18.) Ms. Lenhardt states that defendants' refusal to issue her a passport has harmed her in various ways, including interfering with her immigration proceedings in the United States and her ability to obtain employment. (See Id. at 5-6.) She seeks $12 million in damages and an order requiring defendants to issue her a passport immediately.[2] (Id. at 14, 16.)
The Foreign Sovereign Immunities Act (“FSIA”) provides “the sole basis for obtaining jurisdiction over a foreign state in [federal and state] courts.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). Under the FSIA, a foreign sovereign as well as its agencies and instrumentalities-like the Ministry-are presumptively immune from suit in federal court unless a statutory exception applies. See 28 U.S.C. § 1604; Saudi Arabia v. Nelson, 507 U.S. 349, 355-56 (1993) ().
Here Ms. Lenhardt invokes the non-commercial tort exception, which permits a plaintiff to seek money damages from a foreign state for “personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.” 28 U.S.C. § 1605(a)(5). Ms. Lenhardt asserts a claim pursuant to § 1983, a statute that the Supreme Court has “repeatedly noted . . . creates a species of tort liability.” Heck v. Humphrey, 512 U.S. 477, 483 (1994) (quotation omitted). But there are exceptions to the noncommercial tort exception. A foreign state retains immunity if the plaintiff's claim is “based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). A foreign state's decision as to whether to issue a passport is a discretionary function. See Nwoke v. Consulate of Nigeria, No. 17-CV-00140, 2018 WL 1071445, at *4 (N.D. Ill. Feb. 27, 2018), aff'd, 729 Fed.Appx. 478 (7th Cir. 2018). Ms. Lenhardt makes a conclusory allegation asserting otherwise (see ECF 1, at 4), but German law sets forth a number of grounds upon which the responsible authority may refuse to issue a German passport. See Paßgesetz [PaßG] [Passport Act], Apr. 19, 1986, BGBl. I at 537, § 7, last...
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