Horton v. Garland

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

JOHN D. HORTON, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-22-894-F

)

MERRICK GARLAND, UNITED )

STATES ATTORNEY GENERAL, )

)

Defendant. )

ORDER

The court is in receipt of the Complaint for a Declaratory Judgment Regarding

the Plaintiff’s Second Amendment Constitutional Rights, filed by plaintiff John D.

Horton. Plaintiff, appearing pro se,1 seeks a declaratory judgment pursuant to the

Declaratory Judgment Act, 28 U.S.C. § 2201, that his Second Amendment rights

have not been infringed.2 Plaintiff alleges that jurisdiction for his action against

defendant Merrick Garland, United States Attorney General, is based on federal

question jurisdiction, 28 U.S.C. § 1331.

“‘It is elementary that the United States, as sovereign, is immune from suit

save as it consents to be sued, and the terms of its consent to be sued in any court

define that court’s jurisdiction to entertain the suit.’” Merida Delgado v. Gonzales,

1 As a pro se litigant, the court construes plaintiff’s complaint liberally. See, Haines v. Kerner,

404 U.S. 519, 520-21 (1972). However, the court will not act as his advocate. See, Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

2 Plaintiff has been granted leave to proceed in forma pauperis upon order of United States

Magistrate Judge Suzanne Mitchell. See, doc. no. 5.

428 F.3d 916, 919 (10th Cir. 2005) (quoting United States v. Mitchell, 445 U.S. 535,

538 (1980). “In general, federal agencies and federal officials sued in their official

capacities are also shielded by sovereign immunity.” Id. (citation omitted). “‘A

waiver of sovereign immunity cannot be implied but must be unequivocally

expressed.’” Id. (quoting Mitchell, 445 U.S. at 538). Thus, plaintiff who is

bringing a claim against a federal official acting in his official capacity—and

therefore, as a matter of law, against the United States—must identify a specific

waiver of immunity in order to establish the court’s jurisdiction. See, Normandy

Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d 1290, 1295 (10th

Cir. 2009).

Plaintiff relies upon federal question jurisdiction for his action, but 28 U.S.C.

§ 1331, which establishes the court’s jurisdiction over federal questions, does not

provide a waiver of sovereign immunity. See, Merida Delgado, 428 F.3d at 919.

Consequently, this court’s jurisdiction cannot be based on § 1331 unless some other

statute waives sovereign immunity. Id. Plaintiff also seeks relief under the

Declaratory Judgment Act. However, that statute also does not provide a waiver of

sovereign immunity. See, Wyoming v. U.S., 279 F.3d 1214, 1225 (10th Cir. 2002).

Although not cited, the Administrative Procedure Act (APA) “waives the

Federal Government’s immunity from a suit ‘seeking relief other than money

damages and stating a claim that an agency or an officer or employee thereof acted

or failed to act in an official capacity or under color of legal authority.’” Match-E-

Be-Nash-She-Wish Band of Pottawatomie Indians v. Patchak, 567 U.S. 209, 215

(2012) (quoting 5 U.S.C. § 702). This waiver of sovereign immunity is not limited

to suits under the APA. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233

(10th Cir. 2005). While plaintiff seeks relief other than damages against defendant,

plaintiff does not allege that defendant “acted or failed to act” in an official capacity

or under color of legal authority. He does not allege any official misconduct

occurred. There are no facts to show any violation of a constitutional right.

While sovereign immunity does not apply when the sovereign consents to suit,

such waivers are to be read narrowly. See, James v. United States, 970 F.2d 750,

753 (10th Cir. 1992). Even affording the complaint a liberal construction, plaintiff

has failed to allege facts to show a waiver of sovereign immunity based on the

language of the APA.3 Sovereign immunity therefore deprives the court of

jurisdiction to entertain plaintiff’s claim against defendant.4

Additionally, standing is a jurisdictional prerequisite. See, Laufer v. Looper,

22 F.4th 871, 876 (10th Cir. 2022). Plaintiff has the burden of showing standing.

See, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To establish

standing, plaintiff must allege that he “(1) ‘suffered an injury in fact,’ (2) that is

‘fairly traceable to the challenged action of the defendant,’ and (3) that is likely to

be ‘redressed by a favorable ruling.’” Laufer, 22 F.4th at 876 (quoting Lujan, 504

U.S. at 560-61). An “injury in fact” is “‘an invasion of a legally protected interest

which is (a) concrete and particularized and (b) actual or imminent, not conjectural

or hypothetical.’” Id. (quoting Lujan, 504 U.S. at 560).

The court concludes that plaintiff’s allegations in his complaint fail to

demonstrate the prerequisites for standing. Clearly, plaintiff has not alleged any

factual basis to establish an injury in fact. Without the necessary allegations, the

court concludes that plaintiff lacks standing to bring this action. See, FW/PSB, Inc.

v. City of Dallas, 493 U.S. 215, 231 (1990) (if party fails to make necessary

3 Plaintiff also has not alleged facts to show that his action comes within the ultra vires exception

to sovereign immunity. See, Wyoming, 279 F.3d at 1229-1230.

4 The court may raise the sovereign immunity issue sua sponte. See, Clymore v. U.S., 415 F.3d

1113, 1118, n. 6 (10th Cir. 2005).

allegations, he has no standing). As such, the court lacks jurisdiction to entertain

plaintiff's action against defendant.°

Accordingly, the Complaint for a Declaratory Judgment Regarding the

Plaintiff's Second Amendment Constitutional Rights (doc. no. 1), filed by plaintiff

John D. Horton, is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.

DATED this 20" day of October, 2022.

STEPHEN P. FRIOT

UNITED STATES DISTRICT JUDGE

22-0894p002.docx

> To the extent plaintiff alleges a claim under Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), against defendant in his individual capacity, rather than

his official capacity as United States Attorney General, the court finds that such claim would be

subject to dismissal for failure to state a claim upon which relief can be granted. —_ Bivens liability

has not been extended to a claim under Second Amendment. See, Meeks v. Larsen, 611 Fed.

Appx. 277, 286 (2d Cir. 2015); Yorzinski v. Imbert, 39 F. Supp. 3d 218, 223 (D. Conn. 2014). In

addition, a Bivens action does not allow for a plaintiff to seek equitable relief. See, Bivens, 403

U.S. at 410 (Harlan, J. concurring (“For people in Bivens’ shoes, it is damages or nothing.”);

Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (“The only remedy available in a Bivens

action is an award for monetary damages from defendants in their individual capacities.”).