Johnson v. United States, Department of Justice , 694 F. App'x 748 ( 2017 )

Case: 16-13291 Date Filed: 07/27/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13291
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-00600-KD-M
REGINALD JOHNSON,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
DEPARTMENT OF JUSTICE,
THE FEDERAL BUREAU OF INVESTIGATION,
UNITED STATES POSTAL SERVICE,
POSTMASTER MEGAN BRENNAN, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Alabama
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(July 27, 2017)
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Before ED CARNES, Chief Judge, MARCUS, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Reginald Johnson, proceeding pro se, alleges that the federal government
failed to act after a third party illegally moved his mailbox. He brought suit
against several United States agencies and officials, asserting a variety of claims.
The district court granted the defendants’ motion to dismiss his complaint for lack
of subject matter jurisdiction and failure to state a claim. This is Johnson’s appeal.
“In reviewing the district court’s decision to grant the motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1), lack of subject matter
jurisdiction, this Court reviews the legal conclusions of the district court de novo.”
McElmurray v. Consol. Gov’t, 501 F.3d 1244, 1250 (11th Cir. 2007). “We review
de novo the district court’s grant of a motion to dismiss under [Federal Rule of
Civil Procedure] 12(b)(6) for failure to state a claim, accepting the allegations in
the complaint as true and construing them in the light most favorable to the
plaintiff.” Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir.
2012). “The plaintiff’s [f]actual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. (quotation marks omitted).
We address each of Johnson’s claims in turn. First, he asserts claims under
18 U.S.C. §§ 241, 242, and 245. Those sections are “criminal in nature and
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provide no civil remedies.” Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir.
1960);1 see Love v. Delta Air Lines, 310 F.3d 1347, 1352–53 (11th Cir. 2002). As
such, those claims were properly dismissed.
Second, he asserts claims under 42 U.S.C. § 1981. But that statute’s text
limits it to protection “against impairment by nongovernmental discrimination and
impairment under color of State law.” 42 U.S.C. § 1981(c). Discrimination by
federal agencies and officials is not “nongovernmental” discrimination and is not
discrimination “under color of State law,” so a plaintiff cannot maintain a § 1981
claim against a federal agency or official. Lee v. Hughes, 145 F.3d 1272, 1277
(11th Cir. 1998). Because all of the defendants in this case are federal agencies or
officials, Johnson’s § 1981 claims were due to be dismissed.
Third, Johnson asserts a claim for “[m]ental [a]nguish.” His claim is, in
essence, that the government’s failure to enforce its laws caused him mental pain.
The problem is that his mental anguish claim is governed by the Federal Tort
Claims Act, see O’Ferrell v. United States, 253 F.3d 1257, 1265–66 (11th Cir.
2001), and the Act shields the government from liability arising from its decisions
with respect to which laws to enforce or not enforce, see Smith v. United States,
375 F.2d 243, 248 (5th Cir. 1967) (citing 28 U.S.C. § 2680(a)) (holding that the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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Act “exempts the government from liability for exercising the discretion inherent
in the prosecutorial function of the Attorney General”); Gray v. Bell, 712 F.2d 490,
513 (D.C. Cir. 1983) (“Prosecutorial decisions as to whether, when and against
whom to initiate prosecution are quintessential examples of governmental
discretion in enforcing the criminal law, and, accordingly, courts have uniformly
found them to be immune under the discretionary function exception.”). Because
the government is immune from liability as to Johnson’s mental anguish claim, that
claim was properly dismissed as well.2
AFFIRMED.
2
Johnson’s complaint also asserted a claim under Title VII of the Civil Rights Act of
1964. But in his brief to this Court, he makes only a “passing reference” to that claim. As a
result, he has abandoned it. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681–82
(11th Cir. 2014); Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs
filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed
abandoned.”) (citations omitted).
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