Hemingway v. State and Federal Government ( 2013 )

FILED
UNITED sTArEs DISTRICT CoURT Ngv 2 2 2913
Clefk U.S. DlSUlCf & BBI'Il(FUDtCY
Courts for the Distn'ct of Co|umbia
Gabriel B. Hemingway, )
Plaintiff, j
v. § Civil Action No. /g"
State and Federal Government, j
Defendants. g
MEMORANDUM OPINION
This matter is before the Court on review of plaintiffs pro se complaint and application
to proceed in forma pauperis. The Court will grant plaintiff s application and dismiss the
complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(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 Sardis, Mississippi. He sues an unidentified "State" and the
Federal Government, Compl. Caption, for $12 million. See Compl. at 3. The Eleventh
Amendment to the U.S. Constitution immunizes a state from suit in federal court, unless
immunity is waived.] See College Sav, Bank v. Florz'da Prepaid Postsecondary Ea’uc. Expense
Ba'., 527 U.S. 666, 675-76 (1999); Keenan v. Washz``ngton Metropolitan Area Transil Authorz``ty,
643 F. Supp. 324, 327-28 (D.D.C. 1986) (citing cases). A waiver is found "only where stated
‘by the most express language or by such overwhelming implications from the test as [will] leave
l 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
Ea'elman v. Jordan, 415 U.S. 651, 662-63 (1974); Hans v. Louz``sz``ana, 134 U.S. 1, 13-15 (189()).
1
no room for any other reasonable construction.’ " Morris v. Washington Metropolz``tan Area
Transz'tAuthority, 781 F.Zd 218, 221 (D.C. Cir. l986) (internal citations omitted). The
complaint does not name a proper State defendant and does not establish a waiver of sovereign
immunity.
Similarly, the federal govermnent is subject to suit only upon consent. The United States
has consented to be sued for monetary damages under certain circumstances set out in the
Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80. The instant complaint alleging "criminal
activity" reveals no facts to support an FTCA claim. In addition, nothing in the complaint
suggests that plaintiff has exhausted such a claim pursuant to 28 U.S.C. § 2675. See
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
matter jurisdiction."). A separate Order of dismissal accompanies this Memorandum Opinion.
United States District Juclge
November 3 ,2013