IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
July 27, 2010
RICHARD JOHNSON, PLAINTIFF,
THE U.S. ATTORNEY'S, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is Defendants'*fn1 Motion to Dismiss Plaintiff Richard Johnson's ("Johnson") Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and failure to state a claim. For the reasons set forth below, this Motion will be granted.*fn2
This is the fifth pro se action Johnson has brought in this Court since 1998 against various defendants based on a business lease dispute. Each action was dismissed by this Court for reasons including failure to state a claim, lack of subject matter jurisdiction, expiration of the applicable statute of limitations, and claim preclusion.*fn3 In this fifth action, Johnson's Complaint appears to allege the following allegations focusing on the Federal Defendants' alleged failure to open a criminal investigation into his business lease dispute: (1) violations of his constitutional rights, including the First, Fifth, and Fourteenth Amendments; (2) violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq.; and (3) violation of the federal civil rights statutes, 42 U.S.C. §§ 1983, 1985, and 1986.
On September 16, 2005, while Johnson's third action was pending, Johnson wrote to the United States Attorney's Office in the Eastern District of Pennsylvania ("USAO") regarding his business lease dispute. By letter dated September 20, 2005, the USAO advised Johnson that after reviewing his package of information, it determined that the conduct described no federal violation. (Resp. Mot. Dismiss, Ex. A.) On September 8, 2009, Johnson wrote to the Department of Transportation, Office of Inspector General (the "DOT"), seeking information on how to initiate a criminal investigation regarding his business lease dispute. (Id., Ex. B.) On November 5, 2009, the DOT wrote to Johnson, explaining that it did not have primary oversight over his concerns, and that "appropriate venues may lay with Amtrak and the local courts." (Id., Ex. C.)
Johnson now brings this action against the Federal Defendants apparently because the government would not open a criminal investigation into his business lease dispute. (Compl. at 5.) The Federal Defendants now move to dismiss Johnson's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
II. STANDARDS OF REVIEW
1. Subject Matter Jurisdiction
Pursuant to Federal Rule of Civil Procedure 12(b)(1), when "considering a motion to dismiss for lack of subject matter jurisdiction, the person asserting jurisdiction bears the burden of showing that the case is properly before the court at all stages of the litigation." Fed. Realty Inv. Trust v. Juniper Props. Group, No. 99-3389, 2000 WL 45996, at *3 (E.D. Pa. 2000) (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993)). The district court, when reviewing a motion to dismiss for lack of subject matter jurisdiction, "must accept as true the allegations contained in the plaintiff's complaint, except to the extent federal jurisdiction is dependent on certain facts." Id. (citing Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 496 (3d Cir. 1987)). The district court is not confined to the face of the pleadings when deciding whether subject matter jurisdiction exists. Id. (citing Armstrong World Indus. v. Adams, 961 F.2d 405, 410, n.10 (3d Cir. 1992)). "In assessing a Rule 12(b)(1) motion, the parties may submit and the court may consider affidavits and other relevant evidence outside of the pleadings." Id. (citing Berardi v. Swanson Mem'l Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990)). In the case where the defendant attacks jurisdiction with supporting affidavits, "the plaintiff has the burden of responding to the facts so stated." Id. "A conclusory response or a restatement of the allegations of the complaint is not sufficient." Id. (citing Int'l Ass'n of Machinists & Aerospace Workers v. N.W. Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1982)).
2. Failure to State a Claim
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Rule 12(b)(6), the defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, the Supreme Court stated that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. 544, 555 (2007). Following Twombly, the Third Circuit has explained that the factual allegations in the complaint may not be "so undeveloped that [they do] not provide a defendant the type of notice which is contemplated by Rule 8." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Moreover, "it is no longer sufficient to allege mere elements of a cause of action; instead 'a complaint must allege facts suggestive of [the proscribed] conduct.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 563 n.8). Furthermore, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 234 (quoting Twombly, 550 U.S. at 555). "This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Id. (quoting Twombly, 550 U.S. at 556).
Notwithstanding Twombly, the basic tenets of the Rule 12(b)(6) have not changed. The Knit With v. Knitting Fever, Inc., No. 08-4221, 2009 U.S. Dist. LEXIS 30230, at *6 (E.D. Pa. Apr. 8, 2009). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief, not detailed factual allegations. Phillips, 515 F.3d at 231. Moreover, when evaluating a motion to dismiss, the court must accept as true all well-pleaded allegations of fact in the plaintiff's complaint, and must view any reasonable inferences that may be drawn therefrom in the light most favorable to the plaintiff. Id.; Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).
1. Sovereign Immunity
An action brought against federal agencies, or federal employees in their official capacities, is effectively an action against the United States. Ky v. Graham, 473 U.S. 159, 165-66 (1985). It is well settled that the United States has sovereign immunity except where it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). Sovereign immunity extends to government agencies and employees sued in their official capacities. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). In addition, a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." Mitchell, 445 U.S. at 538.
First, regarding Johnson's constitutional claims against the Federal Defendants, Congress has never waived sovereign immunity for constitutional tort claims against the United States, its agencies, or employees sued in their official capacity. FDIC v. Meyer, 510 U.S. 471, 478 (1994); Graham, 473 U.S. at 166-68. In addition, Congress has not waived sovereign immunity for RICO claims, Jennette v. Holsey, No. 06-874, 2006 WL 1984734, at *1 (M.D. Pa. May 31, 2006); Delker v. United States, No. 86-2712, 1986 WL 11701, at *1 (E.D. Pa. Oct. 16, 1986), or for claims for conspiracy to interfere with civil rights under 42 U.S.C. § 1985, and negligent failure to prevent conspiracy to interfere with civil rights under 42 U.S.C. § 1986. Davis v. U.S. DOJ, 204 F.3d 723, 726 (7th Cir. 2000); Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999); Biase v. Kaplan, 852 F. Supp. 268 (D.N.J. 1994); Wilson v. Rackmill, No. 87-456, 1990 WL 63504 at *4 (E.D. Pa. May 11, 1990).
"Sovereign immunity is jurisdictional in nature. Indeed, the 'terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.'" FDIC, 510 U.S. at 475. Thus, because the United States has not waived its sovereign immunity for constitutional tort, RICO, or §§ 1985 and 1986 claims against its agencies or its federal employees in their official capacities, these claims against the Federal Defendants must be dismissed for lack of subject matter jurisdiction pursuant Federal Rule of Civil Procedure 12(b)(1).
2. State Action
Johnson's § 1983*fn4 claim against the Federal Defendants must also be dismissed. As stated in the statute itself, § 1983 applies only in cases of persons acting under color of state law. It is well settled that liability under § 1983 will not attach for actions taken under color of federal law. Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001); see also Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971).
All of the Federal Defendants here acted under the authority of federal law and performed no acts under color of state law. Accordingly, Johnson fails to state a claim against the Federal Defendants under § 1983, and this claim is dismissed under Federal Rule of Civil Procedure 12(b)(6).
3. Right to Require the Government to Initiate Criminal Proceedings
In addition to not providing any facts to support his claims, Johnson also does not allege in the Complaint that the Federal Defendants had any involvement with his business lease dispute which occurred thirteen years ago. We agree with the Federal Defendants that the only reason that can be discerned from the Complaint for suing them is because they did not initiate a criminal investigation regarding his business lease dispute. (Comp. at 5). Johnson, however, has no federal right to require the government to initiate criminal proceedings. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973); see also Capogrosso v. The Supreme Court of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (holding that under § 1983, individual citizens do not have a constitutional right to the prosecution of alleged criminals). Thus, Johnson does not have a cause of action against the Federal Defendants for failure to initiate criminal proceedings, and the Complaint will be dismissed in its entirety.
An appropriate Order follows.