The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LUTFEE ABDUL-WAALEE,
2:21-CV-00638-CCW
Plaintiff,
vs.
UNITED STATES OF AMERICA,
MERRICK GARLAND, STEPHEN R.
KAUFMAN,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See ECF No. 19. For the reasons that
follow, Defendants’ Motion will be GRANTED.
I. Background
Plaintiff Lutfee Abdul-Waalee, who is proceeding pro se, filed a “Complaint for a Civil
Case Alleging Breach of Contract,” against the United States, Attorney General Merrick Garland,
and Acting United States Attorney Stephen Kaufman. ECF No. 1 at 1-3. Plaintiff alleges that
Defendants violated the Fourteenth Amendment to the United States Constitution by “not
afford[ing] [him] the privilege of first class citizenship simply because of the color of [his] skin.”
See ECF No. 1 at 4. Plaintiff contends that “being born as a black human being in America through
the process of systemic racism,” he was “deprived of life, liberty, and the pursuit of happiness as
stated in the Declaration of Independence,” and seeks “25 million dollars punitive damages [sic]
to be determined later.” Id.
Defendants move to dismiss the action in its entirety pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). See ECF No. 20.
II. Legal Standards
When a Rule 12(b)(1) motion is brought with a Rule 12(b)(6) motion, the Rule 12(b)(1)
motion must be considered first, to determine whether the court has jurisdiction before ruling on
the merits. Anand v. Indep. Blue Cross, No. 20-6246, 2021 U.S. Dist. LEXIS 138414 at *13-14
(E.D. Pa. July 23, 2021); see also, Naughton v. Harmelech, Civil Action No. 09-5450 (PGS), 2010
U.S. Dist. LEXIS 99597 at *6-7 (D.N.J. Sep. 22, 2010) (“Prior to addressing the sufficiency of
Plaintiff’s allegations pursuant to Rule 12(b)(6), the Court must first consider Defendants’
jurisdictional argument.”); Silverberg v. City of Phila., No. 19-2691, 2020 U.S. Dist. LEXIS 4736
at *22 (E.D. Pa. Jan. 8, 2020).
“A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or a
factual attack.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial challenge
contests subject matter jurisdiction without contesting the facts alleged in the complaint, whereas
a factual challenge “attacks the factual allegations underlying the complaint’s assertion of
jurisdiction, either through the filing of an answer or ‘otherwise present[ing] competing facts.’”
Id. (quoting Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014)). In reviewing
a Rule 12(b)(1) facial challenge, such as the present Motion, a district court must use the “same
standard of review it would use in considering a motion to dismiss under Rule 12(b)(6).”
Constitution Party of Pa. v. Aichele, 757 F.3d at 358. Therefore, “the court must only consider
the allegations of the complaint and documents referenced therein and attached thereto, in the light
most favorable to the plaintiff.” Id. Although a pro se Plaintiff’s submissions must be construed
liberally, Plaintiff “still bears the burden of demonstrating subject matter jurisdiction.” Walthour
v. City of Phila., 852 F. App’x 637, 638 (3d Cir. 2021) (citing Davis v. Wells Fargo, 824 F.3d 333,
349 (3d Cir. 2016)).
In reviewing a motion to dismiss under Rule 12(b)(6), the court accepts as true a
complaint’s factual allegations and views them in the light most favorable to the plaintiff. See
Phillips v. Cty. Of Allegheny, 515 F.3d 224, 228 (3d. Cir. 2008). A pro se plaintiff’s complaint
must be held to less stringent standards than formal pleadings drafted by lawyer. While a court
must liberally construe a pro se plaintiff’s pleadings, they “must still contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Baker v. Younkin,
529 Fed.Appx. 114, 115 (3d Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009)).
III. Discussion
Plaintiff styles his Complaint as a claim for “Breach of Contract,” asserting that the
“contract” in question is the Fourteenth Amendment to the United States Constitution. ECF No.
1 at 4; see also ECF No. 22 at 2, 6 (reciting the elements of a contract). Plaintiff argues that “[t]his
is not your typical Bivens [t]ype [c]laim,” because one “must first be considered a full human being
in the eyesight of the law to be civilly violated.” ECF No. 22 at 4. However, the United States
Constitution cannot be construed as a private contract. Because the thrust of Plaintiff’s Complaint
is an alleged violation of the federal Constitution by Defendants, and because Plaintiff seeks
money damages, the Court has liberally construed Plaintiff’s Complaint as asserting a Bivens
action.
Defendants contend that the Court lacks subject matter jurisdiction over Plaintiff’s
Complaint because the United States has not waived sovereign immunity for Bivens actions against
the United States or against the individual Defendants in their official capacities. See ECF No. 20
at 1, 4-6. Further, the Defendants contend that Plaintiff’s Complaint must be dismissed for failure
to state a claim because Plaintiff has not alleged sufficient personal involvement by the individual
Defendants and because a Bivens action cannot be maintained under the Fourteenth Amendment.
Id. at 6-7. The Court will address each argument in turn.
A. Plaintiff’s Claims Against the United States and Against the Individual
Defendants in their Official Capacities Must Be Dismissed for Lack of
Subject Matter Jurisdiction
1. The United States Has Not Waived Sovereign Immunity for a Bivens
Action Against the United States
“It is well-settled that the United States has sovereign immunity except where it consents
to be sued.” Brobst v. United States, 659 F. App’x 135, 136 (3d Cir. 2016) (citing United States
v. Mitchell, 463 U.S. 206, 212 (1983)). A Bivens action is a judicially created remedy that allows
individuals to seek damages for unconstitutional conduct by a federal agent for the violation of
plaintiff’s rights under color of federal law. See Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971); Carlson v. Green, 446 U.S. 14, 18 (1980); see also,
Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001). However, a Bivens action is not
available against the United States or one of its agencies, and Courts routinely dismiss Bivens-type
actions against federal entities as opposed to individuals, for lack of subject-matter jurisdiction.
Burman v. Loretto F.C.I., Civil Action No. 3:19-cv-123-SLH-KAP, 2020 U.S. Dist. LEXIS 58336
at *8 (W.D. Pa. Apr. 1, 2020) (Pesto, M.J.); Thomas v. Fed. Bureau of Prisons, Civil Action No.
15-209, 2017 U.S. Dist. LEXIS 137925 at *12 (W.D. Pa. Aug. 28, 2017) (Baxter, J.)
Here, the Court lacks subject matter jurisdiction over Plaintiff’s Complaint as against the
United States, and it will dismiss the United States as a Defendant.
2. The Court Does Not Have Subject Matter Jurisdiction over the
Individual Defendants in their Official Capacities
The remaining two Defendants Plaintiff names in this case are United States Attorney
General Merrick Garland and Acting United States Attorney for the Western District of
Pennsylvania Stephen R. Kaufman. ECF No. 1 at 2. Plaintiff does not specify whether he is
naming the individual Defendants in their official or individual capacities, or both. The only
mention of these Defendants is in the case caption of the Complaint and the standard form section
that identifies the Defendants—the body of the Complaint does not allege any unlawful conduct
by either individual Defendant. Given Plaintiff’s pro se status, we will construe the Complaint as
attempting to assert both an official-capacity and an individual-capacity claim.
We first turn to the official capacity claim. When a plaintiff brings an action against federal
officials in their official capacities, such action is “deemed to have been brought against the United
States and [is] barred by sovereign immunity,” unless the United States has waived such immunity.
Tyler v. Allegheny Cnty., Civil Action No. 20-969, 2021 U.S. Dist. LEXIS 60518 at *13 n.3 (W.D.
Pa. Mar. 30, 2021) (Dodge, M.J.); Anson v. United States, Civil Action No. 3:19-cv-00013, 2020
U.S. Dist. LEXIS 63433 at *6 (W.D. Pa. Apr. 6, 2020) (Lenihan, M.J.); see also, Lee v. Janosko,
No. 2:18-cv-01297, 2019 U.S. Dist. LEXIS 94692 at *7 (W.D. Pa. June 6, 2019) (Eddy, C.M.J.).
Here, Plaintiff has not alleged that the United States has waived sovereign immunity for
constitutional claims against federal officials in their official capacities or identified any applicable
waiver, nor is the Court aware of one. Therefore, Plaintiff’s claims against Attorney General
Garland and Acting United States Attorney Kaufman in their official capacities must be dismissed.
B. Plaintiff’s Claims Against the Individual Defendants in their Individual
Capacities Must be Dismissed for Failure to State a Claim Upon Which
Relief Could Be Granted
1. Plaintiff Fails to Allege Sufficient Personal Involvement by the
Individual Defendants
To the extent that Plaintiff’s Complaint asserts a Bivens claim against the individual
Defendants in their personal capacities, his Complaint is still subject to dismissal because he has
not alleged sufficient personal involvement by each individual Defendant in the alleged violation
of his constitutional rights.
“Because vicarious liability is inapplicable to Bivens…, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Bistrian v. Levi, 696 F.3d 352, 366
(3d Cir. 2012). Thus, to state a Bivens claim, a plaintiff must demonstrate, with appropriate
particularity, that the government-official defendant had “personal involvement in the alleged
wrongs” either through allegations of personal direction or of actual knowledge and acquiescence.
Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).
Here, Plaintiff has not made any allegations that either Attorney General Garland or Acting
United States Attorney Kaufman were personally involved in any violation of his rights. Indeed,
Plaintiff’s response in opposition to Defendants’ motion acknowledges that “[the named
Defendants] are not responsible for the actions of your father,” which are the actions by which
“Black people the descendants of slaves were and are deprived of full constitutional rights that
were guaranteed by the 14th Amendment.” ECF No. 22 at 3. Further, Plaintiff has not alleged that
the individual Defendants had actual knowledge of, and acquiesced to, a subordinate’s violation
of Plaintiff’s constitutional rights. Accordingly, Plaintiff’s Complaint also must be dismissed with
respect to his claims against the individual Defendants in their individual capacities.
2. Plaintiff Fails to State a Plausible Claim for Relief Under the
Fourteenth Amendment
The Fourteenth Amendment to the United States Constitution provides, among other
protections, that “no State” shall “deprive any person of life, liberty, or property without due
process of law,” or “deny to any person within [the State’s] jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV § 1. However, “[t]he Fourteenth Amendment only applies to
actions of the states and not to the federal government.” Brown v. Philip Morris, Inc., 250 F.3d
789 (3d Cir. 2001); Bolling v. Sharpe, 347 U.S. 497, 499 (1954); Spence v. Balchon, Civil Action
No. 2:16-cv-00357-LPL, 2019 U.S. Dist. LEXIS 63455 at *9-10 (W.D. Pa. Apr. 11, 2019)
(Lenihan, M.J.) (“It is well-settled that the Fourteenth Amendment of the United States does not
apply to federal actors.”).
Although Plaintiff’s briefing questions this well-settled principle, see ECF No. 22 at 3 (“To
say that the [F]ourteenth [A]mendment is a [s]tate [l]aw, and the [F]ifth [A]mendment is a federal
law is simply preposterous especially when you consider the fact that the [F]ourteenth
[A]mendment was enacted especially for black people the former slaves of these United States of
America who were not even considered third-class citizens when the [F]ifth [A]mendment was
enacted.”), Plaintiff fails to cite, nor is the Court aware of, any case law or other authority
indicating that the Fourteenth Amendment allows individual capacity claims against federal
defendants in their individual capacity. See also, Spence, 2019 U.S. Dist. LEXIS 63455 at *9-10
(finding that a Plaintiff has no claims against the individual agent defendants under the Fourteenth
Amendment of the United States Constitution).
As such, the Court will dismiss Plaintiff’s individual capacity claims against Attorney
General Merrick Garland and Acting United States Attorney Stephen Kaufman.
C. The Court Finds that Amendment Would Be Futile
Where pro se plaintiffs raise violations of civil rights, the court should grant them leave to
amend unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 483 F.3d 247, 251 (3d Cir. 2007). Here, leave to amend would be futile. With
respect to the Plaintiff’s claims against the United States and the individual Defendants in their
official capacities, because the Court does not have subject matter jurisdiction over the Defendants
due to sovereign immunity, leave to amend any such claims would be futile. With respect to
Plaintiff’s claims against Attorney General Merrick Garland and Acting United States Attorney
Stephen Kaufman in their individual capacities for violations of the Fourteenth Amendment, the
Court finds that any amendment would be futile because the Fourteenth Amendment does not
apply to actions by federal agents.
IV. Conclusion
For the reasons set forth above, it is hereby ORDERED that Defendant’s Motion to Dismiss
Plaintiff’s Complaint is GRANTED. Because this Court does not have subject matter jurisdiction
over the United States as Defendant and Attorney General Garland and Acting United States
Attorney Kaufman in their official capacities, the Court dismisses those claims without prejudice.
Because the Court finds that any amendment of Plaintiff’s Fourteenth Amendment claims against
Attorney General Garland and Acting United States Attorney Stephen Kaufman in their individual
capacities would be futile, such claims are dismissed with prejudice.
DATED this 7th day of October, 2021.
BY THE COURT:
/s/ Christy Criswell Wiegand
CHRISTY CRISWELL WIEGAND
United States District Judge
cc:
Lutfee Abdul-Waalee
520 Rebecca Ave.
Apartment E
Pittsburgh, PA 15211
All Counsel of Record (via ECF email notification)