McMillan v. Dept. of Interior, CV-S-95-143-PMP (RLH).

• Decision Date: 07 November 1995
• Docket Number: No. CV-S-95-143-PMP (RLH).,CV-S-95-143-PMP (RLH).
• Citation: 907 F. Supp. 322
• Parties: Patrick McMILLAN, Plaintiff, v. DEPARTMENT OF the INTERIOR, Bruce Babbitt, Individually, Bruce Babbitt, in his capacity as Director of the Department of the Interior, Bureau of Land Management, Metropolitan Police Department, and Does 1 through 100, Defendants.
• Court: U.S. District Court — District of Nevada

907 F. Supp. 322

Patrick McMILLAN, Plaintiff, v. DEPARTMENT OF the INTERIOR, Bruce Babbitt, Individually, Bruce Babbitt, in his capacity as Director of the Department of the Interior, Bureau of Land Management, Metropolitan Police Department, and Does 1 through 100, Defendants.

No. CV-S-95-143-PMP (RLH).

United States District Court, D. Nevada.

November 7, 1995.

COPYRIGHT MATERIAL OMITTED

Patrick McMillan, Las Vegas, NV, pro se.

Walter R. Cannon, Larry Ketzenberger, Rawlings, Olson & Cannon, Las Vegas, NV, for LVMPD.

Kathryn Landreth, U.S. Attorney, James S. Savett, Asst. U.S. Atty., Las Vegas, NV, for defendants.

ORDER

PRO, District Judge.

Plaintiff Patrick McMillan ("McMillan") filed his Complaint for Damages and Injunctive Relief (# 1) on February 10, 1995. In that Complaint, he alleged eleven causes of action: (1) Harassment; (2) Color of Law; (3) Double Jeopardy; (4) Fraud; (5) Bad Faith; (6) Malicious prosecution; (7) Injunctive Relief; (8) Punitive damages; (9) Breach of Fiduciary Duty; (10) Negligence; and (11) Covenant of Good Faith and Fair Dealing. McMillan seeks compensatory damages of $2.8 million as well as punitive damages and injunctive relief.

Before the Court is the Defendants' Motion for Dismissal or in the Alternative an Order Granting Summary Judgment (#28), filed July 21, 1995, on behalf of the Department of the Interior, Bruce Babbitt, Secretary of the Interior, in his official capacity, Bruce Babbitt in his individual capacity, and the Bureau of Land Management (collectively, "Federal Defendants"). Plaintiff Patrick McMillan ("McMillan") filed his Opposition to Defendant Department of the Interior's Motion to Dismiss and Request for Summary Judgement sic (# 32) on September 5, 1995. The Federal Defendants then filed a Reply (# 37) on September 20, 1995.

Defendant Las Vegas Metropolitan Police Department ("Metro") filed a Motion to Join Federal Defendants' Motion for Dismissal or in the Alternative for Summary Judgment (# 30) on August 23, 1995. McMillan filed his Opposition to Defendant Metropolitan Police Dept. Joining of Defendant Dept. of the Interior's Motion to Dismiss and Request for Summary Judgement sic (# 31) on September 5, 1995. Metro filed its Reply to Plaintiff's Opposition to Defendant Metro's Joining of Co-Defendants' Motion to Dismiss or Alternatively, for Summary Judgment (# 36) on September 15, 1995. McMillan also filed a Motion to Strike Defendant Metro's Opposition to Plaintiff's Opposition to Defendant Metro's Joining of Co-Defendants' Motion to Dismiss or Alternatively, for Summary Judgement sic (# 38) on September 21, 1995. Metro filed its Opposition to Plaintiff's Motion to Strike Defendant Metro's Opposition to Plaintiff's Opposition to Defendant Metro's Joining the Co-Defendants' Motion to Dismiss or Alternatively, for Summary Judgment (# 43) on September 28, 1995. McMillan filed a Response to Defendant Metro's Opposition to Plaintiff's Motion to Strike Defendant Metro's Opposition to Plaintiff's Motion to Amend Complaint and Stay Proceedings (# 48) on October 7, 1995.

McMillan filed several Motions for Judgment on the Pleadings (## 31 and 32) with his various Oppositions. The Federal Defendants filed a Response to Motion for Judgment on the Pleadings (# 37) on September 20, 1995.

McMillan also filed a Motion to Amend Complaint for Actual Damages, Civil Rights Damages, Punitive Damages, and Injunctive Relief (# 34) on September 8, 1995. Defendant Metro filed an Opposition to Plaintiff's Motion to Amend Complaint and to Stay Proceedings (# 35) on September 15, 1995. McMillan filed a Motion to Strike Defendant Metro's Opposition to Plaintiff's Motion to Amend Complaint and Stay Proceedings (# 39) on September 21, 1995, which the Court construes as a reply and as a motion to strike. Metro filed its Opposition to Plaintiff's Motion to Strike Defendant Metro's Opposition to Plaintiff's Motion to Amend Complaint and Stay Proceedings (# 42) on September 28, 1995. McMillan filed a Response to Defendant Metro's Opposition to Plaintiff's Motion to Strike Defendant Metro's Opposition to Plaintiff's Motion to Amend Complaint and Stay Proceedings (# 48) on October 7, 1995.

The Federal Defendants also filed a Motion to Strike (# 37) on September 20, 1995. McMillan filed a Reply to Defendant Department of the Interior's Motion to Strike Plaintiff's Opposition to Federal Defendants Motion to Dismiss for Summary Judgement sic and Plaintiff's Motion for Judgment on the Pleadings (# 40) on September 27, 1995. The Federal Defendants filed no reply.

Finally, McMillan filed a video exhibit (# 33) which purports to depict the alleged underlying facts giving rise to his claims in this case.

I. Claims against the United States

As a preliminary matter, this Court notes that the Supreme Court has "instructed the federal courts to liberally construe the `inartful pleading' of pro se litigants." Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 701, 70 L.Ed.2d 551 (1982) (per curiam)). McMillan appears in front of the Court pro se.

The Federal Defendants assert that the United States has not waived its sovereign immunity from this lawsuit. This is a question of the Court's subject matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941) ("The terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit."); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989). In considering whether the Court has subject matter jurisdiction, the Court may review affidavits and other evidence to resolve factual disputes on the issue of jurisdiction without converting the Federal Defendants' Motion to Dismiss into one for summary judgment. McCarthy, 850 F.2d at 560; see Capitol Industries-EMI, Inc. v. Bennett, 681 F.2d 1107, 1118 n. 29 (9th Cir.1982), cert. denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 655 (1982); Thornhill Publishing Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir.1979).

Under the principle of sovereign immunity, the United States may only be sued where it has expressly consented to such suit by statute. Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1820, 75 L.Ed.2d 840 (1983). If the United States has consented to a particular kind of suit, it may define the conditions under which it is willing to be sued. Beller v. Middendorf, 632 F.2d 788, 796 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981). "Limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981) (quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 274, 1 L.Ed.2d 306 (1957)); see also Block, 461 U.S. at 287, 103 S.Ct. at 1819. Finally, a suit against a federal agency which seeks relief against the sovereign is, in effect, a suit against the sovereign. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-88, 69 S.Ct. 1457, 1460-61, 93 L.Ed. 1628 (1949). Accordingly, the principles of sovereign immunity apply to that agency. Id.; see Beller, 632 F.2d at 796-98.

A. Statutory Basis for Sovereign Immunity

The party suing the United States must point to an unequivocal waiver of sovereign immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984). In his Complaint (# 1), McMillan does not identify an unequivocal waiver of immunity. Instead, McMillan identifies several bases for the Court's jurisdiction. The Court will consider each statute in turn as to whether it waives the Government's sovereign immunity.

McMillan first asserts jurisdiction under 28 U.S.C. § 1331, which confers upon the federal district courts original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. This section does not waive the sovereign immunity of the United States or its agencies. Holloman, 708 F.2d at 1401 (citing Kester v. Campbell, 652 F.2d 13, 15 (9th Cir.1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1008, 71 L.Ed.2d 298 (1982)); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985).

However, to the extent that McMillan seeks nonmonetary relief, a provision of the Administrative Procedure Act ("APA"), codified at 5 U.S.C. § 702¹ waives the sovereign immunity of actions alleging violations of due process against the United States and its agencies brought under 28 U.S.C. § 1331. Beller, 632 F.2d at 797; see Gilbert, 756 F.2d at 1459 n. 3. However, McMillan does not allege violations of due process.²

McMillan next asserts jurisdiction under 28 U.S.C. § 1332, which confers upon the federal district courts original jurisdiction where the matter in controversy exceeds $50,000, and where complete diversity of citizenship exists. This statute neither confers upon the Court jurisdiction of a dispute between McMillan and an agency or entity of the United States, see Greenwich v. Mobil Oil Corp., 504 F.Supp. 1275, 1278 (D.N.J. 1981); Jizmerjian v. Department of Air Force, 457 F.Supp. 820, 822 (D.S.C.1978), aff'd without op., 607 F.2d 1001 (4th Cir. 1979), cert. denied, 444 U.S. 1082, 100 S.Ct. 1036, 62 L.Ed.2d 766 (1980), nor does it state an unequivocal waiver of the sovereign immunity of the United States.

McMillan next asserts jurisdiction under 15 U.S.C. §§ 1-2, and 14-16. These statutes generally prohibit violations of the Sherman Anti-Trust Act. They do not permit suit against the United States, see Saratoga Sav. & Loan Asso. v. Federal Home Loan Bank, 724 F.Supp. 683, 687 n. 5 (N.D.Cal.1989) ("The United States, its agencies and officials, remain outside of the reach of the Sherman Act.")...