Jackson v. Donovan

844 F. Supp. 2d 74, 2012 WL 574075, 2012 U.S. Dist. LEXIS 22358
CourtCourt of Appeals for the D.C. Circuit
DecidedFebruary 23, 2012
DocketCivil Action No. 11-1213 (CKK)
StatusPublished
Cited by10 cases

This text of 844 F. Supp. 2d 74 (Jackson v. Donovan) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. Donovan, 844 F. Supp. 2d 74, 2012 WL 574075, 2012 U.S. Dist. LEXIS 22358 (D.C. Cir. 2012).

Opinion

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiff, a District of Columbia resident, is suing Shaun Donovan, Secretary of the United States Department of Housing and Urban Development (“HUD”), and four non-federal individuals connected to the James Apartments managed by the District of Columbia Housing Authority (“DCHA”).1 See Mem. Op. and Order (Oct. 17, 2011) [Doc. # 30] (denying motion for a temporary restraining order and pre[76]*76liminary injunction). The amended complaint [Doc. # 8] is difficult to follow but plaintiff, proceeding pro se, claims that defendants have “denied [him] civil rights and privileges afforded an up-to-par resident council.” Am. Compl. at 5. Plaintiff purports to assert claims under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and 42 U.S.C. §§ 1983, 1985 and 1986. Id. at 2. In addition, plaintiff claims that defendants have deprived him of the “freedom of assembly, ... to vote ... of association ... to participate ... of movement ... of privacy ... to enjoyU [and] of choice.” Id. at 5.

Pending before the Court are Defendants Adrianne Todman and Brenda Red-ding’s Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure [Doc. # 10] and Secretary Donovan’s Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) [Doc. # 19], For the following reasons, the Court will grant both motions, thereby dismissing the claims against these defendants.2

BACKGROUND

Plaintiffs amended complaint, read liberally in conjunction with his opposition to Secretary Donovan’s motion to dismiss, is based on his apparent election in 2011 to the position of Treasurer of the James Apartment Resident Council (“JARC”) and the alleged failure of JARC’s President, Leonard Dixon, “to handover the JARC bookkeeping works to the newly elected Treasurer....”. Pl.’s Opp’n to Fed. Defs.’ Mot. to Dismiss (“PL’s Opp’n”) [Doc. # 25] ¶ 2 & Attachments. Plaintiff seeks equitable relief and at least $1,000,000 in monetary damages. See Am. Compl. at 20-23.

DISCUSSION

1. Todman and Redding’s Motion is Deemed Conceded

By Order of August 17, 2011, plaintiff was directed to respond to Todman and Redding’s motion to dismiss by September 16, 2011, and was advised that his failure to respond could result in the granting of the motion as unopposed and dismissal of the complaint against those defendants. Plaintiff did not file an opposition to this motion; therefore, it will be granted as conceded. See Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir.1997) (affirming district court’s reliance on the absence of a response as a basis for treating a motion as conceded and granting the motion); accord Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294-95 (D.C.Cir.2004).

2. Sovereign Immunity Bars the Official-Capacity Claim Against Secretary Donovan

Under the doctrine of sovereign immunity, “the United States may not be sued without its consent and ... the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Such consent may not be implied, but must be “unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). This immunity applies equally to a federal official sued in his official capacity. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).

Plaintiff has cited no authority that waives the government’s immunity to this action, and the Court has discerned no [77]*77such authority from the complaint’s vague allegations. See FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“[T]he United States simply has not rendered itself liable under [28 U.S.C.] § 1346(b) for constitutional tort claims.”); 42 U.S.C. § 1983 (applicable to state actors only); Zhu v. Gonzales, No. 04-1408(RMC), 2006 WL 1274767 (D.D.C. May 8, 2006), quoting Hohri v. United States, 782 F.2d 227, 245 n. 43 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987) (§§ 1985 and 1986 “by their terms, do not apply to actions against the United States.”); 5 U.S.C. § 704 (conferring jurisdiction under the APA to review “[a]gency action made renewable by statute and final agency action for which there is no other adequate remedy in a court....”). Therefore, the Court will grant Secretary Donovan’s motion to dismiss the claim against him in his official capacity under Rule 12(b)(1).

3. Plaintiff Has Failed to State a Personal-Capacity Claim Against Secretary Donovan

Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R.Civ.P. (8)(a), “in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests,’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Rule 12(b)(6) provides a vehicle for parties to challenge the sufficiency of a complaint on the ground that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When presented with a motion to dismiss for failure to state a claim, the district court must accept as true the well-pleaded factual allegations contained in the complaint. Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C.Cir.2009), cert. denied, — U.S.-, 130 S.Ct.

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Bluebook (online)
844 F. Supp. 2d 74, 2012 WL 574075, 2012 U.S. Dist. LEXIS 22358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-donovan-cadc-2012.