United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER
MELINDA HARMON, UNITED STATES DISTRICT JUDGE.
before the Court in the above referenced cause, seeking
relief from alleged harms inflicted by the Federal Bureau of
Investigation (“FBI”), is Defendant FBI's
Motion to Substitute the United States of America as the
proper defendant and the United States of America's
Motion to Dismiss Plaintiff Biola R. Kasali's
(“Kasali”) Original Complaint, Doc. 3
(collectively, “Motions”), under Federal Rule of
Civil Procedure 12(b)(1) because Kasali did not exhaust her
administrative remedies and under Rule 12(b)(6) because
Kasali does not state a claim upon which relief may be
granted. Kasali did not to respond to the motion. Having
considered the filings, record, and law, the Court is of the
opinion that the Motions should be granted.
filed suit, as a pauper, against the “Shadow Gov't
(FBI)” in the 127th Harris County District Court under
the heading “Defamation of Character, ” under
cause no. 2017-6564. Docs. 1-2 at 1, 1-6. Kasali alleged that
she has been “under investigation since 2007, ”
and that she and her family have suffered a laundry list of
harm at the FBI's hands, such as “online”
“stalking, ” “carbon monoxide poison,
” “heart” damage to her son,
“liver” damage to one daughter, and
“cancer” to another daughter. Id. at
1-2. Because Kasali is pro se, we construe her claims to be
personal injury claims under the Federal Torts Claim Act
(“FTCA”). 28 U.S.C. § 2674.
removed this case from the Harris County District Court to
this Court on November 7, 2017 under 28 U.S.C. § 1442.
Doc. 1. On November 14, 2017, the FBI filed this Motion to
substitute and the United States filed to dismiss the case.
district court is to construe liberally the briefs of pro se
litigants and to apply less stringent standards to them than
to parties represented by counsel. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (reciting the
long-established rule that documents filed pro se are to be
liberally construed and “however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers”); Andrade v.
Gonzales, 459 F.3d 538, 543 (5th Cir. 2006); Grant
v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). But
"pro se litigants are still expected to brief the issues
and reasonably comply with the requirements of the Federal
Rules of Civil Procedure." Bivins v. Miss. Reg'/
Hous. Auth. VIII, No. 15-60484, 2016 WL 612069, at *1
(5th Cir. Feb. 15, 2016) (per curiam) (unpublished) (citing
Grant, 59 F.3d at 524); E.E.O.C. v. Simbaki,
Ltd, 767 F.3d 475, 484 (5th Cir. 2014), as
revised (Sept. 18, 2014).
a Rule 12(b)(1) motion is filed in conjunction with other
Rule 12 motions, the court should consider the Rule 12(b)(1)
jurisdictional attack before addressing any attack on the
merits.” Randall D. Wolcott, MD, PA v.
Sebelius, 635 F.3d 757, 762 (5th Cir. 2011)(citing
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001)); Fed.R.Civ.P. 12(h)(3).
12(b)(1) allows a party to move for dismissal of an action
for lack of subject matter jurisdiction. The party asserting
that subject matter exists, here Kasali, must bear the burden
of proof for a 12(b)(1) motion. Ramming, 281 F.3d at
161. In reviewing a motion under 12(b)(1) the court may
consider (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts. Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981).
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) is characterized as either a
“facial” attack, i.e., the allegations in the
complaint are insufficient to invoke federal jurisdiction, or
as a “factual” attack, i.e., the facts in the
complaint supporting subject matter jurisdiction are
questioned. Blue Water Endeavors, LLC v. AC & Sons,
Inc. (In re Blue Water Endeavors, LLC), Ch. 11
Case No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D.
Tex. Jan. 6, 2011) (citing Rodriguez v. Texas Comm'n
of Arts, 992 F.Supp. 876, 878- 79 (N.D. Tex. 1998),
aff'd, 199 F.3d 199 (5th Cir. 2000)). A facial
attack happens when a defendant files a Rule 12(b)(1) motion
without accompanying evidence. Paterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a
facial attack, allegations in the complaint are taken as
true. Blue Water, 2011 WL 52525 at *3 (citing
Saraw Partnership v. United States, 67 F.3d 567, 569
(5th Cir. 1995)).
for a factual attack, the Court may consider any evidence
(affidavits, testimony, documents, etc.) submitted by the
parties that is relevant to the issue of jurisdiction.
Id. (citing Irwin v. Veterans Admin., 874
F.2d 1092, 1096 (5th Cir. 1989)). A defendant making a
factual attack on a complaint may provide supporting
affidavits, testimony or other admissible evidence.
Paterson, 644 F.3d at 523. The plaintiff, to satisfy
her burden of proof, may also submit evidence to show by a
preponderance of the evidence that subject matter
jurisdiction exists. Id. The court's
consideration of such matters outside the pleadings does not
convert the motion to one for summary judgment under Rule
56(c). Robinson v. Paulson, No. H-06-4083, 2008 WL
4692392, *10 (S.D. Tex. Oct. 22, 2008) (citing Garcia v.
Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261
(11th Cir. 1997)). In resolving a factual attack on subject
matter jurisdiction under Rule 12(b)(1), the district court,
which does not address the merits of the suit,  has significant
authority “to weigh the evidence and satisfy itself as
to the existence of its power to hear the case.”
Robinson, 2008 WL 4692392 at *10 (quoting
Garcia, 104 F.3d at 1261 and citing Clark v.
Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986)).
Federal Tort Claims Act
FTCA is the exclusive means for recovery of money damages
against the United States in tort, allowing a limited waiver
of sovereign immunity, and imposes liability on the United
States for personal injuries, death, or injuries to or loss
of property caused by the negligent or wrongful act or
omission of any government employee while acting within the
scope of her office or employment. Ross v. Runyon,
858 F.Supp. 630, 634-35 (S.D. Tex. 1994); 28 U.S.C. §
2674. And the exclusive defendant under the FTCA is the
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