Opinion
Case No. 03-4137-JAR
October 31, 2003
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
This comes before the Court on Defendant's Motion to Dismiss (Doc. 5). Defendant moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(h)(3) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) and 12(h)(2) for failure to state a claim. On July 8, 2003, Plaintiff initiated this action by filing a pleading captioned "unconstitutionality," alleging that the State of Kansas has violated his civil rights and has denied him due process of law. In that pleading, Plaintiff refers to 18 U.S.C. § 241, 245, and 42 U.S.C. § 1981, 1982 as the basis of his claims against the United States. Plaintiff states that his "rights have gone unprotected by the U.S. Dept. of Justice." Plaintiff apparently brings this action against the United States on the theory that the United States Department of Justice has a duty to intervene on his behalf.
Because the Plaintiff appears pro se, the Court must review the pleadings with additional considerations. A pro se litigant's pleadings are construed liberally. The court is to determine whether the plaintiff's complaint can be reasonably read to state a valid claim "despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." However, the court is not to assume the role of advocate for the pro se litigant. For that reason, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiffs behalf."
Hall v. Bellmon, 935 F.2d 1 106, 11 10 (10th Cir. 1991).
Id.
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (citation omitted).
Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10* Cir. 1997).
Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction, able to adjudicate only those cases which the Constitution and Congress authorize. Federal judicial power derives from and is absolutely limited by Article III, § 2 of the Constitution. The Supreme Court has stated that:
Ankenbrandt v. Richards, 504 U.S. 689, 695-697 (1992).
Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . ., which is not to be expanded by judicial decree. . . .It is to be presumed that a cause lies outside this limited jurisdiction . . ., and the burden of establishing the contrary rests upon the party asserting jurisdiction.
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (internal citations omitted).
Thus, it is Plaintiffs burden to establish the Court's jurisdiction.
To establish the federal court's jurisdiction over the United States a plaintiff must do more than show that the subject matter of the litigation is within the general competence of federal courts. The plaintiff must also identify a specific statutory waiver of the government's sovereign immunity with respect to the claims made in the complaint. The burden is on the plaintiff to find and prove an explicit waiver of sovereign immunity. None of the statutes referenced in Plaintiff's pleading provides a waiver of sovereign immunity. Even under a liberal pleading standard, the factual allegations set forth in Plaintiff's pleading do not provide any basis for finding subject matter jurisdiction of Plaintiffs claims against the United States. The Department of Justice does not have the authority, or responsibility, to represent Plaintiff in his discrimination action against Market USA, or to intervene in Plaintiffs unemployment compensation dispute with the State of Kansas. The allegations in Plaintiff's pleading do not provide any basis for finding the existence of subject matter jurisdiction or an actionable claim against the United States. Therefore, this action must be dismissed.
Whittle v. United States, 1 F.3d 1259, 1262 (6th Cir. 1993) (quotation omitted).
Cominotto v. United States, 802 F.2d 1127, 1129 (9th Cir. 1986).
Failure to State a Claim
Even if jurisdiction did exist, Plaintiff has failed to allege facts sufficient to support a claim upon which relief may be granted against the United States. The court may not dismiss a cause of action for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure unless it appears beyond doubt that the claimant can prove no set of facts supporting its claim which would entitle it to relief. In considering a Rule 12(b)(6) motion, the court must assume as the all well-pleaded facts, as distinguished from conclusory allegations, and must draw all reasonable inferences in favor of the nonmovant. The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support its claim.
H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989).
Housing Auth. of Kaw Tribe of Indians of Oklahoma v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir. 1991), cert. denied 504 U.S. 912 (1992); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
Reading Plaintiff's complaint in the light most favorable to Plaintiff, and interpreting the complaint liberally, in order to find some reasonable basis for Plaintiffs claims, Plaintiff fails to state a claim under any of the federal statutes he relies on. Sections 241 and 245 of Title 18 are criminal statutes. They do not confer any substantive rights and cannot be used as the basis for a private cause of action.
See, e.g., Willing v. Lake Orion Comm. Schools Bd. of Trustees, 924 F. Supp. 815, 818 (E.D. Mich. 1996); Williams v. Tri-County Comm. Center, 452 F.2d 221, 223 n. 3 (5th Cir. 1971).
Plaintiff also fails to state a claim for relief under 42 U.S.C. § 1981, which proscribes public or private racial discrimination in the formation and enforcement of contracts. To advance a claim under § 1981, a plaintiff must allege intentional discrimination and that he or she is a member of a protected class. Plaintiff does not state his race or national origin. Nor does Plaintiff allege intentional discrimination resulting from racial animus, as § 1981 requires.
Fitzgerald v. Mountain States Tel. Tel. Co., 68 F.3d 1257, 1262 (10th Cir. 1995) (citations omitted). Although § 1981 also contains judicial process and equal benefit clauses, these likewise require a showing of racial animus. See Wesley v. Don Stein Buick, Inc., 996 F. Supp. 1299, 1304-05 (D. Kaa 1998).
See id.
See Lowe v. Letsinger, 772 F.2d 308, 311 (7th Cir. 1985) (mere allegation that plaintiff is black is insufficient to state a claim under section 1981).
Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609 (1987).
Plaintiff similarly fails to state a claim for relief under 42 U.S.C. § 1982, which prohibits racial discrimination in the sale and rental of property. To advance a claim under § 1982, a plaintiff must allege that he or she was discriminated against with respect to property rights. Plaintiff does not allege intentional discrimination resulting from racial animus, as § 1982 requires. IT IS THEREFORE ORDERED that Defendants' motion to dismiss (Doc. 5) is GRANTED and this action is DISMISSED WITH PREJUDICE.
42 U.S.C. § 1982 provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and comey real and personal property."
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 420-21 (1968).
Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 616 (1987).
IT IS SO ORDERED.