Opinion
No. 3-04-CV-2468-P.
January 21, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge for initial screening pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se civil action brought by Plaintiff Bobby J. Hise against various federal agencies and high-ranking government officials alleging that their failure to prevent illegal and undocumented aliens from entering the United States has caused him economic harm. On November 16, 2004, plaintiff tendered an eight-page complaint to the district clerk and filed an application to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories then were sent to plaintiff in order to obtain additional information about the factual basis of this suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff answered the interrogatories on January 4, 2005. The court now determines that this case should be summarily dismissed for lack of subject matter jurisdiction.
II.
Plaintiff alleges that defendants have violated his civil rights through a policy of lax and selective enforcement of the immigration laws. More particularly, plaintiff claims that the presence of illegal and undocumented aliens has had a detrimental impact on his business and personal income and jeopardizes his safety. By this suit, plaintiff seeks more than $2.2 million in damages and a court order directing the government "to eliminate the Policy and/or Policies of Selective and/or Lax Enforcement of the Laws and Regulations of the United States of America." ( See Plf. Am. Compl. at 2).
Plaintiff filed an amended complaint clarifying his claims on January 4, 2005. Because defendants have not yet served a responsive pleading, leave to file this amended complaint is not required. See FED.R.CIV.P. 15(a) ("A party may amend the party's pleading once as a matter of course any time before a responsive pleading is served[.]").
A.
A district court may summarily dismiss a complaint filed in forma pauperis if it concludes that the action:(1) is frivolous or malicious;
(2) fails to state a claim upon which relief can be granted; or
(3) seeks money relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to state a claim "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
B.
The federal government cannot be sued for monetary damages unless Congress has waived immunity or the government has consented to suit. Price v. United States, 69 F.3d 46, 49 (5th Cir. 1995), cert. denied, 117 S.Ct. 295 (1996); Dean v. Gladney, 621 F.2d 1331, 1335 (5th Cir. 1980), cert. denied, 101 S.Ct. 1521 (1981). Federal agencies and government employees acting in their official capacity also are protected by sovereign immunity. Brown v. General Services Administration, 425 U.S. 820, 826-27, 96 S.Ct. 1961, 1965, 48 L.Ed.2d 402 (1976). The mere fact that federal legislation protects a right does not imply that the United States has waived immunity. Unimex, Inc. v. U.S. Dep't of Housing and Urban Development, 594 F.2d 1060, 1061 (5th Cir. 1979). Rather, a waiver of sovereign immunity must be unequivocally expressed in the text of the statute creating the right. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 2096-97, 135 L.Ed.2d 486 (1996) (waiver may not be implied from legislative history or statutory construction). See also Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir. 1994). The court lacks subject matter jurisdiction to consider any claim against a federal agency or employee unless sovereign immunity has been waived. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701, 102 S.Ct. 2099, 2103, 72 L.Ed.2d 492 (1982); City National Bank v. United States, 907 F.2d 536, 546 n. 9 (5th Cir. 1990).
Plaintiffs claims against the United States of America, including its federal agencies and government employees acting in their official capacity, are barred by sovereign immunity. None of the federal statutes or constitutional amendments cited by plaintiff expressly waive sovereign immunity. See Seibert v. Baptist, 594 F.2d 423, 431 (5th Cir. 1979), cert. denied, 100 S.Ct. 1851 (1980). Nor do these statutes confer a private right of action to enforce the immigration laws. Accordingly, this case should be dismissed for lack of subject matter jurisdiction.
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1915(e)(2).