Massey et al v. Department of the Interior et al
ORDER AND MEMORANDUM DECISION granting Federal Defendants' 21 Motion to Dismiss for Lack of Jurisdiction; denying 25 Motion to Amend Complaint. Signed by Judge Tena Campbell on 7/5/16 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
ROBERT J. MASSEY and JACQULYN
UNITED STATES DEPARTMENT OF THE
INTERIOR, et al.,
Case No. 2:16-cv-43-TC
Pro se plaintiffs Robert Massey and Jacqulyn Massey have filed a complaint against
Defendant United States Department of the Interior (“United States”) and various Department of
Interior employees (collectively “Federal Defendants”), alleging violation of their constitutional
rights, including due process under the Fifth and Fourteenth Amendments. The Masseys bring
their action under 42 U.S.C. § 1983. They have also filed a motion for leave to file a second
amended complaint (“Motion to Amend”) in which they propose to add a cause of action under
42 U.S.C. § 1985 and allege additional facts to support their claims against the Federal
The Federal Defendants have filed a motion to dismiss for lack of subject matter
Although the court must construe a pro se litigant’s pleadings and papers liberally, the
court must not act as his advocate. Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
jurisdiction because the United States has not waived its sovereign immunity under that statute.2
They also oppose the Motion to Amend for the same reason. Because the case law clearly
establishes that the United States has not waived its sovereign immunity under either 42 U.S.C.
§ 1983 or 42 U.S.C. § 1985, the court GRANTS the Federal Defendants’ Motion to Dismiss and
DENIES the Plaintiffs’ Motion to Amend.
Under sovereign immunity, the United States government cannot be sued without its
consent. E.g., Bowman v. United States, 65 F.3d 856, 857 (10th Cir. 1995). Consent constitutes
a waiver of sovereign immunity. But the United States has not waived sovereign immunity for
suits against federal agencies or officers under § 1983. Beals v. U.S. Dep’t of Justice, 460 Fed.
App’x 773, 775 (10th Cir. 2012); Dry v. United States, 235 F.3d 1249, 1255 (10th Cir. 2000);
Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997). Accordingly, this court does not
have jurisdiction over the Masseys’ § 1983 claim, Beals, 460 Fed. App’x at 775, and this court
must dismiss that claim against the Federal Defendants.
The United States opposes the Motion to Amend for the same reason. The proposed
second amended complaint provides more factual detail about the Masseys’ claims against the
Federal Defendants, but that alone does not establish subject matter jurisdiction. And their
citation to 42 U.S.C. § 1985 does not either.
Although the Masseys correctly note that the United States’ opposition to their Motion to
Amend did not address their proposed claim under § 1985, the United States’ argument extends
to the § 1985 claim. The addition of such a claim would not change the result, because the
The State of Utah is a co-defendant, but is not a party to this motion.
United States has not waived its sovereign immunity under that section either. Beals, 460 Fed.
App’x at 775; Jones v. Nat’l Commc’n & Surveillance Networks, 409 F. Supp. 2d 456, 466
As for the other section the Masseys rely on—28 U.S.C. § 1343—that section does not
create a private cause of action against the United States. It is a jurisdictional statute that creates
original jurisdiction for “any civil action authorized by law” to recover damages under § 1985, id.
§ 1343(a), but it does not waive sovereign immunity under § 1983 or § 1985. Salazar v. Heckler,
787 F.2d 527, 528-29 (10th Cir. 1986). “When federal court jurisdiction is invoked pursuant to
[28 U.S.C. § 1343], we must look to the specific ‘Act of Congress providing for the protection of
civil rights’ invoked to determine whether that Act by its terms expresses Congress’ consent to
suits against the United States by [civil rights plaintiffs].” Id. at 529. In this case, the “specific
‘Act of Congress’” is 42 U.S.C. § 1983 and § 1985. As noted above, sovereign immunity has not
been waived under those provisions.
Although Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint
should be given freely when justice so requires, the court may deny a motion to amend where
amendment would be futile. Jefferson Cty. Sch. Dist. v. Moody’s Inv’r Servs., 175 F.3d 848,
859 (10th Cir. 1999). “A proposed amendment is futile if the complaint, as amended, would be
subject to dismissal for any reason, including that the amendment would not survive a motion for
summary judgment” or a motion to dismiss. Watson ex rel. Watson v. Beckel, 242 F.3d 1237,
1239-40 (10th Cir. 2001). The Masseys’ proposed second amended complaint suffers from the
same jurisdictional flaw as the current complaint and so granting their request for leave to amend
would be futile.
For the foregoing reasons, the Federal Defendants’ Motion to Dismiss (Docket No. 21) is
GRANTED for lack of subject matter jurisdiction, and the Masseys’ Second Motion for Leave to
Amend Complaint (Docket No. 25) is DENIED as futile.
DATED this 5th day of July, 2016.
BY THE COURT:
U.S. District Court Judge
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