United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
filed a motion to dismiss plaintiff's complaint pursuant
to Fed.R.Civ.P. 12 or, in the alternative, for summary
judgment pursuant to Fed.R.Civ.P. 56. (Docket 39). The motion
was accompanied by a declaration by Douglas Noseep, Acting
Deputy Associate Director of Field Operations, Office of
Justice Services, Bureau of Indian Affairs, United States
Department of the Interior (Docket 41); Defendant
Landry's statement of material facts (Docket 42); an
affidavit by Defendant Landry, together with a No. of
receipts, (Dockets 42-1 & 42-2); and a legal memorandum
(Docket 40). Mr. Stanko filed a response to the
defendants' motion. (Docket 45).
court recognizes plaintiff's pro se status. However,
“[e]ven pro se litigants must comply with court rules
and directives.” Soliman v. Johanns, 412 F.3d
920, 922 (8th Cir. 2005). This district's local rules
require a party opposing a substantive motion to file, within
21 days of service, a responsive brief containing specific
points of law with authorities. D.S.D. Civ. LR
7.1(B).Specifically, a party opposing a summary
judgment motion is required to file a statement of material
facts responding “to each numbered paragraph in the
moving party's statement of material facts with a
separately numbered response and appropriate citation to the
record.” D.S.D. Civ. LR 56.1(B). The opposing party
must “identify any material facts as to which it is
contended that there exists a genuine issue to be
tried.” Id. “All material facts set
forth in the movant's statement of material facts will be
deemed to be admitted unless controverted by the opposing
party's statement of material facts.” Id.
at 56.1(D). Filing a statement of disputed material facts in
opposition to a motion for summary judgment is mandatory, not
court had no duty to advise plaintiff of his obligation to
respond to Defendants' motions and the procedure for
doing so. See Bennett v. Dr. Pepper/ Seven Up, Inc.,
295 F.3d 805, 808 (8th Cir. 2002) (finding the court did not
have an affirmative duty to advise a pro se litigant of the
date by which he was to respond to a motion); Beck v.
Skon, 253 F.3d 330, 333 (8th Cir. 2001) (finding the
district court was not required to instruct a pro se litigant
on how to properly respond to a motion). However,
plaintiff's failure to fully respond to defendants'
motions “does not automatically compel resolution of
[the motions] in favor of [defendants].” United
States v. One Parcel of Real Prop., 27 F.3d 327, 329 n.1
(8th Cir. 1994); see also Canada v. Union Elec. Co.,
135 F.3d 1211, 1213 (8th Cir. 1997) (“When a motion
would be dispositive of the merits of the cause if granted,
courts should normally not treat a failure to respond to the
motion as conclusive.”); Soliman, 412 F.3d at
922 (determining whether summary judgment was appropriate on
the merits despite a plaintiff's failure to respond to a
defendant's summary judgment motion). Rather than dismiss
plaintiff's complaint for failing to comply with the
local rules, the court will address defendants' motion.
first seek dismissal of plaintiff's complaint pursuant to
Fed.R.Civ.P. 12(b)(1). Rule 12 provides in part that “a
party may assert the following defenses by motion: . . . lack
of subject-matter jurisdiction . . . .” Fed.R.Civ.P.
12(b)(1). “In order to properly dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), the
complaint must be successfully challenged on its face or on
the factual truthfulness of its averments.” Titus
v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (internal
citation omitted). “In a facial challenge to
jurisdiction, all of the factual allegations concerning
jurisdiction are presumed to be true and the motion [to
dismiss] is successful if the plaintiff fails to allege an
element necessary for subject matter jurisdiction.”
Id. (internal citation omitted). While considering a
Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction the court must “accept all factual
allegations in the pleadings as true and view them in the
light most favorable to the nonmoving party.” Great
Rivers Habitat Alliance v. Federal Emergency Management
Agency, 615 F.3d 985, 988 (8th Cir. 2010). “[T]he
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
burden of proving federal jurisdiction, however, is on the
party seeking to establish it, and this burden may not be
shifted to the other party.” Great Rivers Habitat
Alliance, 615 F.3d at 988 (internal quotation marks and
brackets omitted). “The burden of establishing that a
cause of action lies within the limited jurisdiction of the
federal courts is on the party asserting jurisdiction . . .
.” Arkansas Blue Cross & Blue Shield v. Little
Rock Cardiology Clinic, P.A., 551 F.3d 812, 816 (8th
Mr. Stanko is proceeding pro se, his pleading must be
liberally construed and his complaint, “however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citation omitted). “[A] pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers' and
can only be dismissed for failure to state a claim if it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief.” Estelle v. Gamble, 429 U.S. 97, 106
complaint cites 28 U.S.C. § 1331 and 42 U.S.C. §
1983 as the bases for the court's jurisdiction. (Docket 1
at p. 2). The complaint acknowledges Defendants Clay Landry
and A. Graser are employees of the Bureau of Indian Affairs
and were acting as police officers on the date of the alleged
conduct. Id. ¶¶ 10 & 11.
United States and its agencies are generally immune from
suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994)
(“Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit.”);
Brown v. United States, 151 F.3d 800, 803-04 (8th
Cir. 1998). “Sovereign immunity is a jurisdictional
issue . . . .” Rupp v. Omaha Indian Tribe, 45
F.3d 1241, 1244 (8th Cir. 1995). If the government
“possess[es] sovereign immunity, then the district
court [has] no jurisdiction to hear [plaintiff's
claims against Officers Landry and Graser in their official
capacities function as a suit against the United States. See
Olivares v. L.A. Rampart Station, Civ. No. 14-5061,
2014 WL 6453833, at *3 (D.S.D. Nov. 17, 2014). For Mr. Stanko
to sue these defendants, the waiver of sovereign immunity by
the United States must be “unequivocally
expressed.” Hagemeier v. Block, 806 F.2d 197,
202 (8th Cir. 1986) (quoting United States v.
Mitchell, 445 U.S. 535, 538 (1980)) (internal quotation
1331 sets forth the general federal question jurisdiction of
federal district courts, but is not a general waiver of
sovereign immunity allowing suits against the
government.” Wright v. Langdeau, 158 F.Supp.3d
825, 832 (D.S.D. 2016) (quoting Rosebud Sioux Tribe v.
U.S. Bureau of Indian Affairs, 714 F.Supp. 1546, 1552
(D.S.D. 1989) (internal quotation marks omitted).
1983 does not waive the government's sovereign immunity
defense. See Affiliated Professional Home Health Care
Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999);
Morpurgo v. Board of Higher Ed. In City of New York,
423 F.Supp. 704, 714 (S.D.N.Y. 1976) (“[T]he United
States itself [cannot] be sued under [section 1983] . . .
because [the statute does] not waive sovereign
immunity.”); Johnson v. U.S. Social Sec.
Admin., No. C 03-5876, 2005 WL 418543, at *3 (N.D. Cal.
Feb. 17, 2005) (dismissing plaintiff's section 1983 claim
for failing to identify waiver of sovereign immunity).
claims a waiver of immunity exists under the Little Tucker
Act, 28 U.S.C. § 1346(a)(2). (Docket 45 at p. 10)
(referencing United States v. Bormes, 568 U.S. 6
(2012)). “[T]he Little Tucker Act provides that
‘district courts shall have original jurisdiction,
concurrent with the United States Court of Federal Claims,
' of a ‘civil action or claim against the United
States, not exceeding $10, 000 in amount, founded either upon
the Constitution, or any Act of Congress, or any regulation
of an executive department, or upon any express or implied
contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.'
” Bormes, 568 U.S. at 10 (citing 28 U.S.C.
§ 1346(a)(2) (emphasis added).
fails to acknowledge that the Little Tucker Act provides for
a limited waiver of sovereign immunity by the United States,
an entity which is not a defendant in this litigation. The
complaint seeks damages for § 1983 and common law tort
claims. (Docket 1). Both claims sound in tort and are outside
the purview of the Little Tucker Act. Finally, Mr.
Stanko's complaint seeks damages in excess of the $10,
000 limit established by § 1346(a)(2). See Docket 1 at
pp. 8-9. Plaintiff has not identified a waiver of ...