United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION
before the court is Plaintiff's Second Motion for
Extension of Time (Doc. 12) In the motion, Plaintiff explains
that she is seeking legal representation from her Congressman
and has had difficulty meeting deadlines due to her health.
She seeks an extension until February 28, 2019, to locate an
address for the defendants and to serve process on them. For
the reasons explained below, it is
RECOMMENDED that this action be
12, 2018, Plaintiff filed this pro se action against the U.S.
Department of Justice, former President Barack Obama, former
U.S. Attorney General Loretta Lynch, Vanita Gupta, former
Deputy Assistant Attorney General and head of the Civil
Rights Division of the Department of Justice, and James G.
Touhey, Director of the Tort Branch, Department of Justice,
their official and individual capacities for their combined
failures to prosecute criminal matters involving racial
complains at length that Defendants were cognizant of rampant
racial profiling in this country and failed to take action to
address it. She particularly complains that there was no
federal prosecution filed after the death of Trayvon Martin.
Plaintiff also complains that Defendants failed to prosecute
a Texas state district judge for the “kidnapping”
and forced medical treatment of an unnamed minor child after
the child was removed from his home by Child Protective
Services. Plaintiff appears to allege that these failures to
prosecute have resulted in her suffering from major
depression, anxiety and post traumatic stress
disorder. Plaintiff seeks monetary relief from all
October 9, 2018, Plaintiff sought and received an extension
of time within which to serve the defendants. She was given
until December 7, 2018, to complete service of process. On
November 19, 2018, she filed the present motion for a second
extension of time, claiming that her health did not allow her
to meet the existing deadline.
to the federal rules, dismissal of an action is appropriate
whenever the court lacks subject matter jurisdiction.
Fed.R.Civ.P. 12(b)(1); 12(h)(3). Federal courts may exercise
jurisdiction over cases only as authorized by the United
States Constitution and the jurisdictional statutes.
Kokkonen v. Guardian Life Ins. Co. Of Am., 511 U.S.
375, 377 (1994); see also Howery v. Allstate Ins.
Co, 243 F.3d 912, 916 (5th Cir. 2001). The
party asserting jurisdiction bears the burden of overcoming
the presumption that the cause falls outside the court's
limited jurisdiction. Kokkonen, 511 U.S. at 377;
Howery, 243 F.3d at 916, 919. In considering such a
motion, the court must take as true all uncontroverted
factual allegations in the complaint. John Corp. v. City
of Houston, 214 F.3d 573, 576 (5th Cir.
court may decide a motion to dismiss for lack of jurisdiction
on any of three bases: “(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.” Ramming, 281 F.3d at 161. The court,
in determining whether it is properly vested with subject
matter jurisdiction, is “free to weigh the evidence and
resolve factual disputes in order to satisfy itself that it
has the power to hear the case.” Krim v.
pcOrder.com, Inc., 402 F.3d 489, 494 (5th
Cir. 2005) (quoting Montez v. Dep't of Navy, 392
F.3d 147, 149 (5th Cir. 2004)).
court should decide the Federal Rule of Civil Procedure
(“Rule”) 12(b)(1) motion before addressing any
attack on the merits. Ramming, 281 F.3d at 161. A
district court has original jurisdiction of “all civil
actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. However, its
jurisdiction over such actions is limited to actual cases or
controversies. Lujan v. Defenders of Wildlife, 504
U.S. 555, 559 (1992). “[S]tanding is an essential and
unchanging part of the case-or-controversy requirement . . .
.” Id. at 560.
the court lacks subject matter jurisdiction because there has
been no waiver of sovereign immunity by the United States and
the individual defendants have absolute immunity with respect
to the allegations made by Plaintiff.
United States, as sovereign, is immune from suit save it
consents to be sued.” United States v.
Sherwood, 312 U.S. 584, 586 (1941). “A waiver of
the Federal Government's sovereign immunity must be
unequivocally expressed in the statutory text and will not be
implied.” Lane v. Pena, 518 U.S. 187, 192
(1996). Absent a waiver of sovereign immunity, a federal
court does not have jurisdiction to adjudicate claims against
sovereign defendants. See FDIC v. Meyer, 510 U.S.
471, 471 (1994)(“Absent a waiver, sovereign immunity
shields the Federal Government and its agencies from
suit.”). Therefore, a suit against the United States
Department of Justice is a suit against the United States.
Meyer, 510 U.S. at 475. Plaintiff bears the burden
of showing an unequivocal waiver of sovereign immunity in a
suit against a federal agency or its officials. See St.
Tammany Parish ex rel. Davis v. FEMA, 556 F.3d 307, 315
(5th Cir. 2009). Here, Plaintiff has not alleged a
statutory basis for a waiver of sovereign immunity, and the
court is aware of none.
example, although Plaintiff has denominated her complaint as
one for the violation of her civil rights, the Fifth Circuit
has “long recognized that suits against the United
States brought under the civil rights statutes are barred by
sovereign immunity.” Affiliated Prof'l Home
Health Care Agency v. Shalala, 164 F.3d 282, 286
(5th Cir. 1999); see also Unimex, Inc. v. U.S.
Dep't of Housing & Urban Dev., 594, F.2d 1060,
1060 (5th Cir. 1979)(sovereign immunity bars
claims against federal government under 42 U.S.C.
§§ 1981, 1982 and 1986).
United States has waived its sovereign immunity for tort
claims brought against the federal government under the
Federal Tort Claims Act (“FTCA”). 28 U.S.C.
§ 2674; see also Tsolmon v. United States, 841
F.3d 378, 382 (5th Cir. 2016). The FTCA allows a
plaintiff to bring a state law tort action against the United
States. See Tsolmon v. United States, 841 F.3d 378,
382 (5th Cir. 2016). However, the limited waiver
of sovereign immunity under the FTCA allows for the recovery
of monetary damages “for injury or loss of property, or
personal injury or death arising or resulting from the
negligent or wrongful act or omission” of federal
employees acting within the scope of employment. 28 U.S.C.
§ 2679(b)(1). The FTCA expressly excludes from the
waiver of sovereign immunity any action ...