Case 1:11-cv-00110-JB-WDS Document 7 Filed 02/17/11 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
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`CRAIG DAVIDSON,
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`Plaintiff,
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`v.
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`CIV 11-110 JB/WDS
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`BARACK OBAMA, President (in his official capacity);
`ERIC HOLDER, Attorney General (in his official capacity),
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`Defendants.
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`MAGISTRATE JUDGE’S ANALYSIS
`AND RECOMMENDED DISPOSITION1
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`THIS MATTER comes before me on an Order of Reference issued pursuant to 28 U.S.C.
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`§§ 636(b)(1)(B), (b)(3), and Virginia Beach Fed. Sav. & Loan Ass’n v. Wood, 901 F.2d 849 (10th
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`Cir. 1990), and directing me to “perform any legal analysis required to recommend to the Court an
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`ultimate disposition” of any motions filed in this case. See Doc. 6. Before the Court is pro se
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`plaintiff Craig Davidson’s Complaint against the President and Attorney General, in their official
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`capacities, for declaratory and injunctive relief. Part of the relief requested is that the Court order
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`the Defendants “to arrest, indict, and prosecute to the full extent of the law” thirteen former officials,
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`including the former president, vice president, attorney general, and secretary of state, for alleged
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`conspiracy to commit torture and for the torture and death of twelve other individuals who were
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`suspected terrorists. See Doc. 1 at 47.
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`The Court may dismiss a complaint sua sponte under Fed. R. Civ. P. 12(b)(6) for failure to
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` Within fourteen (14) days after a party is served with a copy of this analysis and
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`recommended disposition, that party may, pursuant to 28 U.S.C. § 636(b)(1), file written objections
`to such analysis and recommendation. A party must file any objections within the fourteen-day
`period allowed if that party wants to have appellate review of the analysis and recommendation. If
`no objections are filed, no appellate review will be allowed.
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`Case 1:11-cv-00110-JB-WDS Document 7 Filed 02/17/11 Page 2 of 7
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`state a claim if “it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and
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`allowing him an opportunity to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d
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`1106, 1110 (10th Cir. 1991) (quoting McKinney v. Okla. Dep’t of Human Serv., 925 F.2d 363, 365
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`(10th Cir. 1991)). A plaintiff must allege “enough facts to state a claim to relief that is plausible on
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`its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face
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`“when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
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`the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937,
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`1949 (2009). In reviewing a plaintiff’s pro se complaint, the court applies the same legal standards
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`applicable to pleadings drafted by counsel but liberally construes the allegations. See Northington
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`v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992).
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`Further, the Court must dismiss a case at any time if it determines that it “lacks subject-
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`matter jurisdiction.” FED. R. CIV. P. 12(h)(3); Basso v. Utah Power & Light Co., 495 F.2d 906,
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`909 (10th Cir. 1974) (“A court lacking jurisdiction cannot render judgment but must dismiss the
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`cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking. . .
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`. If the parties do not raise the question of lack of jurisdiction, it is the duty of the federal court to
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`determine the matter sua sponte. Therefore, lack of jurisdiction cannot be waived and jurisdiction
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`cannot be conferred upon a federal court by consent, inaction or stipulation.”) (internal citations
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`omitted). Because Davidson lacks standing to pursue his claims against the President and Attorney
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`General, and because the United States has not waived its sovereign immunity regarding the claims
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`he attempts to allege under any statute cited in the Complaint, I recommend that the Court dismiss
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`the Complaint without prejudice for lack of subject-matter jurisdiction, but also without giving
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`Davidson an opportunity to amend.
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`Davidson’s Complaint is no more than a conglomeration of historical allegations about other
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`individuals and political statements demonstrating Davidson’s general disagreement with the United
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`State’s policies on investigation, arrest, and torture of suspected terrorists after the events of
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`September 11, 2001. See Doc. 1 at 1-5, 6 (“This suit alleges that a widespread criminal conspiracy
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`by the orders and memorandums of the Department of Justice . . . under the orders of George Bush
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`and Dick Cheney, then executed by George Tenet, Donald Rumsfeld, and high-level military
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`commanders.”), and 11-31.
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`For his first “cause of action,” Davidson states: “No U.S. Officer or Agent may authorize
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`torture.” Doc. 1 at 31. For his second “cause of action”, Davidson states: “No U.S. Officer or
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`Agent may condone torture.” Id. at 33. His “third cause of action” states: “No state secrets
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`protection applies to torture.” Id. at 35. The “fourth cause of action” states: “No U.S. officer can
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`participate in a criminal conspiracy in an official capacity.” Id. The “fifth cause of action” states:
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`“No reliance can be made on an opinion issued as part of a criminal conspiracy.” Id. at 36. The
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`“sixth cause of action” states: “No faith can be placed in the defendants [sic] representations to the
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`court.” Id. at 37. The “seventh cause of action” states: “No faith can be placed in the defendants
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`[sic] custody of evidence.” Id. at 41. The “eighth cause of action” states: “No faith can be placed
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`in the defendants [sic] prosecution of violations.” Id. at 42. The “ninth cause of action” states:
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`“Defendants have violated petitioners [sic] equal protection rights under 42 U.S.C. § 1981.” Id. at
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`44. And the “tenth cause of action” states: “Defendants have violated petitioners [sic] rights under
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`42 U.S.C. § 1983.” Id. But Davidson does not make a single factual allegation regarding himself
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`to show that he has been tortured or injured in some way.
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`“A federal court must in every case, and at every stage of the proceeding, satisfy itself as to
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`its own jurisdiction, and the court is not bound by the acts or pleadings of the parties.” Citizens
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`Concerned for Separation of Church & State v. City & County of Denver, 628 F.2d 1289, 1301 (10th
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`3
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`Cir. 1980). “The party invoking federal jurisdiction bears the burden of establishing such jurisdiction
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`as a threshold matter.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). For
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`a court to have jurisdiction over an action, “the party bringing the suit must establish standing.” Elk
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`Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11(2004). To establish constitutional, or Article-
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`III, standing, “[t]he plaintiff must show that the conduct of which he complains has caused him to
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`suffer an ‘injury in fact’ that a favorable judgment will redress.” Id. at 12. In addition, the
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`prudential-standing doctrine prohibits a litigant from attempting to raise another person’s legal
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`rights. “[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his
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`claim to relief on the legal rights or interests of third parties.” Warth v. Sedlin, 422 U.S. 490, 499
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`(1975). “Essentially, the standing question in such cases is whether the constitutional or statutory
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`provision on which the claim rests properly can be understood as granting persons in the plaintiff’s
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`position a right to judicial relief.” Id at 500.
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`Because Davidson’s Complaint is bereft of any factual allegations to show that he has been
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`tortured or injured as a result of the Defendants’ allegedly unlawful actions or policies, and because
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`he seeks only to obtain a declaration that the rights of others were violated and an order mandating
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`the Defendants to arrest and prosecute former officials for the allegedly unlawful injury of other
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`people, he has failed to establish constitutional or prudential standing and his Complaint must be
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`dismissed for lack of subject-matter jurisdiction. See Warth, 422 U.S. at 499-501; Cohen v. Obama,
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`No. 09-6187, 359 Fed. App’x 40, 42, 2009 WL 5159765, *2 (10 Cir. Dec. 31, 2009) (affirming
`th
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`dismissal of suit because plaintiff “failed to show a particularized injury, but rather has stated only
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`general disagreement with various government actions” and therefore “lacks standing,” and noting
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`that the “lack of standing is fatal to his case and this court’s jurisdiction to hear his case” because
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`“[c]onstitutional standing is necessary to the court’s jurisdiction . . . .”) (internal quotation marks
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`4
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`and citation omitted).
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`Further, Davidson has failed to allege facts to show that the sovereign immunity of the
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`United States has been waived. Davidson states that this Court’s jurisdiction exists “under 28
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`U.S.C. § 1331 (federal question); 28 U.S.C. § 1361 (Action to compel an officer of the United States
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`to perform his duty); and directly under the Constitution.” Doc. 1 at 7. Davidson sues the
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`Defendants only in their official capacities, and acknowledges that the question therefore arises
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`whether the sovereign that employs them is immune from suit. See Doc. 1 at 8; and see Fostvedt
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`v. United States, 978 F.2d 1201, 1202-03 (10th Cir. 1992) (noting that the United States is
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`sovereignly immune from suit; that “[t]he burden is on the [plaintiff] to find and prove an explicit
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`waiver of sovereign immunity;” and that “sovereign immunity must be strictly construed in favor
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`of the sovereign and may not be extended beyond the explicit language of the statute. . . . . [T]he
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`terms of its consent to be sued in any court define that court’s jurisdiction to entertain suit.”)
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`Davidson then offers 42 U.S.C. § 1983 as the “specific example” of the statute permitting suit
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`against the United States’s officers/employees for alleged constitutional violations. Doc. 1 at 8.
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`But § 1983 does not apply to the federal government, its agencies, or its employees or
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`officers acting in their official capacities. See Punchard v. United States Bureau of Land Mgmt.,
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`180 Fed. App’x 817, 819, 2006 WL 1389107, **2 (10th Cir. May 18, 2006) (holding that “[t]he
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`federal government is not subject to suit under § 1983;” and that “[c]onstitutional torts [against the
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`government] are not cognizable under the [Federal Tort Claims Act]”); see also FDIC v. Meyer, 510
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`U.S. 471, 475 (1994) (noting that sovereign immunity generally precludes claims against the United
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`States government).
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` And neither § 1331 nor § 1361 provide a basis for the Court’s jurisdiction in this case.
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`“While 28 U.S.C. § 1331 grants [federal] court jurisdiction over all ‘civil actions arising under the
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`Constitution, laws or treaties of the United States,’ it does not independently waive the
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`Government’s sovereign immunity; § 1331 will only confer subject matter jurisdiction where some
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`other statute provides such a waiver.” High Country Citizens Alliance v. Clarke, 454 F.3d 1177,
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`1181 (10th Cir. 2006).
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`Section 1361 provides federal district courts with “original jurisdiction of any action in the
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`nature of mandamus to compel an officer or employee of the United States or any agency thereof
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`to perform a duty owed to the plaintiff.” Sovereign immunity “does not bar a district court from
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`exercising subject-matter jurisdiction granted under § 1361.” Trackwell v. United States Gov’t, 472
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`F.3d 1242, 1444-45 (10 Cir. 2007). But “[t]he common-law writ of mandamus, as codified in 28
`th
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`U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if . . . the defendant owes him a
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`clear nondiscretionary duty.” Marquez-Ramos v. Reno, 69 F.3d 477, 478-79 (10th Cir. 1995)
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`(quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). “The importance of the term
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`‘nondiscretionary’ cannot be overstated – the judiciary cannot infringe on decision-making left to
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`the Executive branch’s prerogative.” Id. at 479. “Thus, the question whether a particular act
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`[challenged through mandamus] is discretionary . . . rises to the jurisdictional level.” Id. “The
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`Attorney General and United States Attorneys retain broad discretion’ to enforce the Nation’s
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`criminal laws.” United States v. Armstrong, 517 U.S. 456, 464 (1996). Therefore, neither President
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`Obama nor Attorney General Holder owe Davidson a duty to criminally prosecute anyone. His
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`factual allegations, therefore, wholly fail to invoke the Court’s jurisdiction under §1361. See
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`Liverman v. Bush, No. 05-4023, 213 Fed. App’x 675, 677, 2007 WL 96551, *2 (10 Cir. 2007)
`th
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`(affirming dismissal of case because “the district court lacked jurisdiction [under § 1361] to compel
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`the President and Attorney General to investigate and prosecute the criminal conduct alluded to in
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`plaintiff's complaint” and also affirming dismissal because “a private citizen lacks a judicially
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`cognizable interest in the prosecution or nonprosecution of another,” thus the “unbroken line of
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`explicit precedent holding that a citizen lacks standing to contest the policies of the prosecuting
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`authority when he himself is neither prosecuted nor threatened with prosecution . . . clearly applies
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`here and deprives plaintiff of standing to contest the prosecutorial policies of the President and
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`Attorney General”) (internal quotation marks omitted). Davidson has not, and cannot, state any
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`statute that waives the United States’ sovereign immunity against suit based on the allegations set
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`forth in his Complaint. The Court, therefore, additionally does not have subject-matter jurisdiction
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`over the case for this reason.
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`I recommend that the Court sua sponte dismiss Davidson’s Complaint without prejudice for
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`lack of subject-matter jurisdiction and without giving Davidson an opportunity to amend his
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`Complaint because to do so would be futile.
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`___________________________________
`UNITED STATES MAGISTRATE JUDGE
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