Nie v. Lynch

FILED
AU6132015
Clerk, U.S. District and
Bankruptcy Courts
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Harry Nie,
Plaintiff: Case: 1:15—cv-01312
Assigned To : Unassigned
Assign. Date : 8/13/2015
Description: Pro Se Gen. Civil
Honorable Loretta Lynch et al.,
vvvvvvvvvv
Defendants.
MEMORANDUM OPINION
Plaintiff, proceeding pro se, is a Virginia state prisoner incarcerated in Mitchells,
Virginia. He has submitted a complaint that essentially challenges his conviction. The Court
will grant the accompanying application to proceed in forma pauperis and will dismiss the case
for lack of jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring dismissal of an action “at any
time” the Court determines that it lacks subject matter jurisdiction).
Federal court review of a sentence imposed by a state court is available under 28 U.S.C.
§ 2254 after the exhaustion of state remedies. See 28 U.S.C. §2254(b)(1). Thereafter, “an
application for a writ of habeas corpus [] made by a person in custody under the judgment and
sentence of a State court . . . may be filed in the district court for the district wherein such person
is in custody or in the district court for the district [where the sentencing court sits] and each of
such district courts shall have concurrent jurisdiction to entertain the application.” 28 U.S.C.
§ 2241(d). Plaintiff’s recourse in habeas lies, if at all, in an appropriate court in Virginia. See
Williams v. Hill, 74 F.3d 1339, 1340 (DC. Cir. 1996) (finding it “well-settled that a prisoner
03
seeking relief from his conviction or sentence may not bring [ ] an action” for injunctive and
declaratory relief) (citations omitted).
This Court also lacks jurisdiction to the extent that plaintiff is seeking review of the
decisions of the US. Supreme Court and the state and federal courts in Virginia ( Compl. at 2, 4-
17). See In re Marin, 956 F.2d 339, 340 (DC. Cir. 1992); accord Panko v. Rodak, 606 F.2d 168,
171 n.6 (7th Cir. 1979), cert. denied, 444 US. 1081 (1980) (“It seems axiomatic that a lower
court may not order the judges or officers of a higher court to take an action”). See also United
States v. Choi, 818 F. Supp. 2d 79, 85 (D.D.C. 2011) (district courts “generally lack[] appellate
jurisdiction over other judicial bodies, and cannot exercise appellate mandamus over other
courts”) (citing Lewis v. Green, 629 F. Supp. 546, 553 (D.D.C.1986)); Fleming v. United States,
847 F. Supp. 170, 172 (D.D.C. 1994), cert. denied 513 US. 1150 (1995) (applying District of
Columbia Court oprpeals v. Feldman, 460 US. 462, 482 (1983); Rocker v. Fidelity Trust Co,
263 US. 413, 415, 416 (1923)).
Finally, plaintiff sues both Virginia’s Governor and Attorney General in their official
capacities, see Compl. Caption, which “in all respects other than name, [is] to be treated as a suit
against the entity [state of Virginia].” Kentucky v. Graham, 473 US. 159, 166 (1985). The
Eleventh Amendment to the US. Constitution immunizes a state from suit in federal court,
unless immunity is waived.1 Plaintiff has not cited any authority waiving Virginia’s immunity.
1 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." US. Const. amend. XI. It is long established that
this amendment applies equally to suits brought by citizens against their own states. See
Edelman v. Jordan, 415 US. 651, 662-63 (1974); Hans v. Louisiana, 134 US. 1, 13-15 (1890).
Similarly, plaintiff sues Attorney General Loretta Lynch in her official capacity but has cited no
federal authority waiving sovereign immunity. See Lane v. Pena, 518 US. 187, 192 (1996) (the
United States may be sued only upon consent “unequivocally expressed in statutory text”).
For the foregoing reasons, this case will be dismissed. A separate Order accompanies
this Memorandum Opinion.
DATE: August, 2015 United States District Judgg