FINDINGS AND RECOMMENDATIONS
This matter came before the court on June 24, 2011, for hearing of defendant's motion to dismiss plaintiff's amended complaint. Plaintiff Daniel Keller, who is proceeding pro se in this action, appeared on his own behalf. Assistant United States Attorney Bobbie Montoya appeared for defendant. At the conclusion of that hearing defendant's motion was taken under submission.
Plaintiff alleges that the United States Federal Government, has ". .
. continually and knowingly allowed the Monroe County Police
Department of Bloomington, Indiana to derelectly [sic] and corruptly
investigate me for murders I didn't commit since I was around eleven."
(Amend. Complaint (hereinafter AC) (Doc No. 7) at 1.) According to
plaintiff's amended complaint, he is being investigated by local law
enforcement officers for the murders of
two young boys, an FBI agent and a Monroe County detective.*fn1
In his amended complaint, plaintiff alleges that he was given
"Presidential and Federal protection in early 2000's due to knowledge
I had of vast importance to national security and to protect me from
the corrupt elements of the Monroe County Police Department and that
region or any whom might use laws against me and the county for any
reason." (AC at 1.) Plaintiff contends that the Monroe County Police
Department continues to harass him to this day, "knowing full well"
that he "did not commit any of those murders or atrocities." (AC at
2.) In this action, plaintiff has brought suit against the "United
States Federal Government" claiming that it has failed to properly
investigate the Monroe County Police Department and stop that local
enforcement agency from falsely accusing him.
Plaintiff filed his original complaint in this action on August 30, 2010. (Doc. No.1.) On April 8, 2011, plaintiff filed his amended complaint, (Doc. No. 7) wherein he alleges that the United States Government has failed to properly investigate the Monroe County Police Department for making false allegations that plaintiff committed several murders. Defendant United States filed a motion to dismiss the amended complaint on May 18, 2011. (Doc. No. 8.) Plaintiff filed opposition to the motion. (Doc. No. 9.) Defendant filed a reply. (Doc. No. 10.)
In moving to dismiss, defendant United States argues that this court lacks jurisdiction over plaintiff's claim pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendant also contends that plaintiff's claim is barred against the United States because there has not been an express waiver of sovereign immunity with respect to plaintiff's apparent claims against the federal government. (Motion to Dismiss (Doc No. 8-1) at 2.)
In his opposition to the pending motion plaintiff only briefly addresses the court's jurisdiction over his action, stating "The Presidential and Federal protection backs that my side of the events are true and acceptible [sic] in court and jurisdiction." (Opp'n (Doc. No. 9) at 3.) Plaintiff counters defendant's claim that there has been no waiver of sovereign immunity by contending in conclusory fashion that ". . . the Federal Government has sovereign immunity and must approve a lawsuits proceedings, the Presidential and Federal Protection is enough authority to allow the lawsuit as well . . ." (Id. at 4.)
In reply, defendant argues that plaintiff has failed to articulate how his "Presidential and Federal protection" constitute an express waiver of the government's sovereign immunity. (Reply at 2-3.) Defendant argues that the burden of establishing the waiver of sovereign immunity falls on plaintiff and that here he has failed to meet that burden. (Id. at 3.) (citing Devries v. I.R.S., 359 F. Supp.2d 988, 992 (E.D. Cal. 2005)).
Defendant United States also advances several additional arguments in support of its motion to dismiss plaintiff's amended complaint, including that: (1)Plaintiff fails to state a claim for which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure; (2) Under decisions such as Weisberg v. U.S. Dept. of Justice, 489 F2.d 1195, 1201 (D.C. Cir. 1978), the district courts lack the authority to interfere with the Executive Branch's decisions concerning whether it is necessary to conduct a criminal, administrative or regulatory investigation; (3) Plaintiff lacks standing to sue the United States under Article III; and (4) Plaintiff has failed to allege exhaustion of his administrative remedies. Defendant also seeks summary judgment in its favor under Rule 56 of the Federal Rules of Civil Procedure on the grounds that there is no genuine dispute as to material fact and it is entitled to judgment as a matter of law.
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
When a party brings a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n. 1 (9th Cir. 2003), Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir. 2001).*fn2 Nonetheless, district courts "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment" when resolving a facial attack. Safe Air for Everyone, 373 F.3d at1039.
When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Thornhill Publ'g Co., 594 F.2d at 733. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 12(b)(1) motion attacks the existence of subject matter ...