The opinion
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BENJAMIN ARTHUR LANGS, JR., )
)
Plaintiff, )
)
v. ) Case No. CIV-22-458-G
)
OKLAHOMA CRIME )
VICTIMS COMPENSATION, )
)
Defendant. )
ORDER
Now before the Court is Defendant Oklahoma Crime Victims Compensation
Board’s Motion to Dismiss (Doc. No. 21), seeking dismissal of Plaintiff’s Complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff Benjamin
Arthur Langs Jr., appearing pro se,1 did not respond to Defendant’s Motion within the time
allowed. See LCvR 7.1(g).2
Plaintiff initiated this action against Defendant on June 3, 2022. See Compl. (Doc.
No. 1). In his Complaint, Plaintiff alleges that he was the victim of a shooting in Oklahoma
City, Oklahoma, and seeks damages from Defendant in the amount of $40,000.00. See id.
at 1. Citing the Eleventh Amendment, Defendant now moves to dismiss Plaintiff’s
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter
1 The Court construes Plaintiff’s filings liberally due to his pro se status.
2 As no response was filed to Defendant’s Motion, the Court deems the factual
representations made therein confessed. See LCvR 7.1(g).
jurisdiction.3 Defendant argues that Plaintiff’s Complaint should be dismissed because, as
an agency of the State of Oklahoma, Defendant is immune from suit. See Def.’s Mot. at 5.
The defense of sovereign immunity deprives the Court of subject-matter jurisdiction
where applicable. Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urb. Dev., 554
F.3d 1290, 1295 (10th Cir. 2009). “Because sovereign immunity affects subject matter
jurisdiction, the defense may properly be asserted by a motion to dismiss under Rule
12(b)(1).” White v. United States, No. CIV-16-1265-D, 2017 WL 4681796, at *2 (W.D.
Okla. Oct. 17, 2017).
“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court
must dismiss the complaint in its entirety.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006). “A Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction takes
one of two forms: a facial attack or a factual attack.” Bollenbach v. United States, No.
CIV-19-233-G, 2020 WL 1550196, at *2 (W.D. Okla. Mar. 31, 2020) (citing Pueblo of
Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015)). Here, Defendant
advances a facial attack, arguing the allegations in Plaintiff’s Complaint are not sufficient
to support subject-matter jurisdiction. See Def.’s Mot. at 5. “In reviewing a facial attack,
a district court confines its analysis to the pleadings and must accept the allegations in the
complaint as true.” Bollenbach, 2020 WL 1550196, at *2. Plaintiff, as the party asserting
federal jurisdiction, bears “the burden of alleging the facts essential to show jurisdiction
3 Defendant also seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted. Because the Court concludes that
dismissal is warranted under Rule 12(b)(1), the Court need not reach Defendant’s
arguments for dismissal under Rule 12(b)(6).
and supporting those facts with competent proof.” U.S. ex rel. Stone v. Rockwell Int’l
Corp., 282 F.3d 787, 797-98 (10th Cir. 2002) (internal quotation marks omitted).
“[I]mplicit in enactment of the Eleventh Amendment is that state sovereign
immunity ordinarily bars federal-court jurisdiction over private suits against a state by
citizens of the state.” Pettigrew v. Okla. ex rel. Okla. Dep’t of Pub. Safety, 722 F.3d 1209,
1212 (10th Cir. 2013). “A [s]tate, however, may choose to waive its immunity in federal
court at its pleasure.” Sossamon v. Texas, 563 U.S. 277, 284 (2011). In addition, “Congress
may abrogate a state’s sovereign immunity.” Levy v. Kan. Dep’t of Soc. & Rehab. Servs.,
789 F.3d 1164, 1169 (10th Cir. 2015) (internal quotation marks omitted).
As an agency of the State of Oklahoma, Defendant is plainly entitled to sovereign
immunity as to Plaintiff’s damages claims. See id. at 1168; Def.’s Mot. at 5. Plaintiff’s
Complaint, even liberally construed, does not address jurisdiction or articulate a basis for
this Court to find a waiver of sovereign immunity or an abrogation of the State’s immunity
by Congress. Further, Plaintiff has not responded to Defendant’s Motion within the time
allowed to assert that such a waiver or abrogation exists. Accordingly, Plaintiff’s claims
are barred by the Eleventh Amendment and must be dismissed.
CONCLUSION
For the reasons stated above, Defendant Oklahoma Crime Victims Compensation
Board’s Motion to Dismiss (Doc. No. 21) is GRANTED. Plaintiff’s Complaint (Doc. No.
1) is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1). A
separate judgment shall be entered.
IT IS SO ORDERED this 29th day of September, 2023.
CHARLES B.GOODWIN
United States District Judge