Tay v. Obama

FILED UNITED s'rArEs Drsrklcr CoURr JUN 3 0 2014 FOR THE DISTRICT OF COLUMBIA Cler|<. U.S. Distrlct & Bankruptcy Courts for the Dlstrlct of columbia Dontavious "Tay" Smith, ) ) Plaintiff, ) ) n ¢ . v. ) C1v1l Actlon No. __ l j ) President Barack Obama et al., ) ) Defendants. ) MEMORANDUM OPINION This matter is before the Court on its initial review of plaintiffs pro se complaint and application to proceed in forma pauperis. The Court will grant plaintiffs application and dismiss the complaint for lack of subject matterjurisdiction. See Fed. R. Civ. P. l2(h)(3) (requiring the court to dismiss an action "at any time" it determines that subject matter jurisdiction is wanting). P1aintiff is a resident of Cocoa, Florida. He sues President Barack Obama in his official capacity, Attomey General Eric Holder in his official capacity, various United States agencies, and Florida’s Govemor Rick Scott in his official capacity for violations of the Racketeer lnfluenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1961 et seq. Under the doctrine of sovereign immunity, the federal govemment is subject to suit only upon consent, which must be clear and unequivocal. United States v. Mitchell, 445 U.S. 53 5, 538 (1980) (citation omitted). "Congress [has] not waive[d] the United States' sovereign immunity for suits for treble damages under the RICO Act," Abou-Hussez'n v. Mabus, 953 F. Supp. 2d 251, 263 (D.D.C. 201 3) (citing Norris v, Dep't ofDefense, No. 96-5326, 1997 WL 362495 , at *1 (D.C. Cir. May 5, 1997)), and “sovereign immunity isjurisdictional in nature." FDIC v. Meyer, 510 U.S. 471, 475 (1994). Similarly, the Eleventh Amendment to the U.S. Constitution immunizes a state from suit in federal court, unless immunity is Waived.l Plaintiff’s RICO claim against Govemor Scott in his official capacity is, too, foreclosed. See Vierria v. Calzfornz'a Highway Patrol, 664 F. Supp. 2d 1219, 1232 (E.D. Cal. 2009) (citing Alden v. Maz'ne, 527 U.S. 706, 727 (1999); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984);Ken1‘uclc_v v. Graham, 473 U.S. 159, 166 (1985)). Finally, to the extent that plaintiff is asserting tort claims against the federal defendants separate from the RICO statute, he has not indicated that he has exhausted his administrative remedies under the Federal Tort Claims Act ("FTCA") by "first present[ing] the claim to the appropriate Federal agency. . . .," 28 U.S.C. § 2675 , and this exhaustion requirement is jurisdictional See GAF Corp. v. United States, 818 F.2d 901, 917-20 (D.C. Cir. 1987); Jackson v. United States, 730 F.2d 808, 809 (D.C. Cir. 1984); Stokes v. U’.S. Postal Service, 937 F. Supp, 1 ], 14 (D.D.C. 1996); see also Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per curiam) ("[T]he district court properly dismissed case [based on unexhausted FTCA claim] for lack of subject matterjurisdiction."). Furthermore, the Eleventh Amendment shields any such claims against Govemor Scott in his official capacity and the complaint’s allegations simply do not support a personal-capacity claim against him or, for that matter, against President ' The amendment provides in pertinent part: "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." U.S. Const. amend. XI. lt is long established that this amendment applies equally to suits brought by citizens against their own states. See Edelman v. Jordan, 415 U.S. 651 , 662~63 (1974); h’ans v. Louz`siana, 134 U.S. 1, 13-15 (1890). [2] Obama and Attomey General Holder. Hence, this case will be dismissed A separate Order accompanies this Memorandum Opinion. /'r~ nited S te_s District Judge June l/rl ,2014 H»'//?JX""D