United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendants' Motion to
Dismiss for Failure to State a Claim and the corresponding
briefing. Docs. 16, 17, 19. Having reviewed the Motion
and applicable law, I recommend that the Court GRANT
Defendants' Motion to Dismiss.
February 26, 2018, Plaintiff filed her Complaint, which she
supplemented on March 14, 2018. Docs. 1, 11.
Plaintiff contends that the Grant County Sheriff and a Grant
County Sheriff Deputy violated New Mexico criminal statutes
and her “Natural Rights” and “Common Law
Rights” when they cited and arrested Plaintiff and
towed her automobile, allegedly in response to discovering
Plaintiff driving her vehicle without a driver's license,
automobile registration, or car insurance. See doc.
1 at 5; doc. 11 at 3; doc. 17 at 7.
Plaintiff also claims that she is a foreign entity, because
her “property and land are on a foreign domicile,
within New Mexico, but outside New Mexico and the Federal
Zone.” Doc. 1 at 2-3, 5. Particularly,
Plaintiff alleges that she is a diplomat of the foreign state
Bradford Republic, is immune from the enforcement of New
Mexico laws pursuant to the Foreign States Immunities Act
(“FSIA”), and that New Mexico state agents are
prohibited from entering her property. See doc. 1 at
3, 5-7; doc. 11 at 3-4. See also 28 U.S.C.
§§ 1330, 1332, 1391(f), 1441(d), 1604-1611
(codifying the FSIA).
response, Defendants filed a Motion to Dismiss for Failure to
State a Claim on March 26, 2018, arguing that Plaintiff's
case should be dismissed because Plaintiff's Complaint
fails to state a claim upon which relief can be granted, and
because Defendants are immune from suit. Doc. 16.
Plaintiff filed her Response on April 6, 2018, and Defendants
submitted their Reply on April 24, 2018. Docs. 17,
19. Plaintiff then filed an unauthorized surreply on May
2, 2018. Doc. 22. On July 13, 2018, the Court
referred this case to me for recommended findings and final
disposition. Doc. 28.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6), a Court will
dismiss a complaint for failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6).
Specifically, a complaint must “state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
assessing whether a complaint meets this standard, the Court
is to first “identify pleadings that, because they
are no more than conclusions, are not entitled to the
assumption of truth.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). Then, accepting only the well-pleaded
factual allegations as true and viewing them in the light
most favorable to the plaintiff, the court is to consider
whether “they plausibly give rise to an entitlement to
relief.” Barrett v. Orman, 373 Fed.Appx. 823,
825 (10th Cir. 2010) (unpublished) (quoting Iqbal,
556 U.S. at 677-78); Casanova v. Ulibarri, 595 F.3d
1120, 1125 (10th Cir. 2010). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
as here, a party is proceeding pro se, the court is
to liberally construe her pleadings. Casanova, 595
F.3d at 1125. “But the court [is] not [to]
‘assume the role of advocate for the pro se
litigant.'” Baker v. Holt, 498 Fed.Appx.
770, 772 (10th Cir. 2012) (unpublished) (quoting Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In other
words, “[t]he broad reading of the plaintiff's
complaint does not relieve the plaintiff of the burden of
alleging sufficient facts on which a recognized legal claim
could be based.” Hall, 935 F.2d at 1110.
reviewed Plaintiff's Complaint and Supplement, and
construing the pleadings in the manner most favorable to
Plaintiff, the Court nevertheless fails to find any claim
made by Plaintiff upon which relief can be granted. The
undersigned has identified three possible bases for the
claims brought by Plaintiff: (i) enforcement of a
constitutional right pursuant to 42 U.S.C. § 1983; (ii)
the criminal statutes of New Mexico; and (iii) the Foreign
States Immunities Act.
first possibility is easily rejected, because Plaintiff
explicitly states that she is not pursuing any claims under
42 U.S.C. § 1983. Doc. 17 at 7. Indeed, she
argues that she “has no Civil Rights.”
Id. Presumably, she takes this approach because a
contrary position would undermine her argument that she is
not a citizen of the United States. Id. (explaining
that Defendants are wrong in construing Plaintiff's
complaint as seeking relief under § 1983, because
“[a] non U.S. citizen [cannot] sue under Title 42 at
section 1983, as Defense Counsel alleges.”).
Nonetheless, as the master of her Complaint, it is clear that
Plaintiff is not asserting a claim pursuant to Section 1983.
See The Fair v. Kohler Die & Specialty Co., 228
U.S. 22, 25 (1913) (“Of course, the party who brings a
suit is master to decide what law he will rely upon”);
see also Merrell Dow Pharmaceuticals, Inc. v.
Thompson, 478 U.S. 804, 809, n. 6 (1986)
(“Jurisdiction may not be sustained on a theory that
the plaintiff has not advanced.”).
Plaintiff seeks to sue Defendants under various New Mexico
criminal statutes regarding conspiracy, unlawful taking of a
motor vehicle, false imprisonment, and harassment. Doc.
1 at 3-4. However, unless a criminal statute
provides a private right of action, a private individual,
such as Plaintiff, has no authority to enforce it. See
Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007);
Mamer v. Collie Club of America, Inc., 229 F.3d
1164, *2 (10th Cir.2000)(unpublished); Higgins v.
Neal, 52 F.3d 337, *1 (10th Cir. 1995) (“Because
allowing private citizens to initiate prosecutions would
undermine prosecutorial discretion and the authority of
federal prosecutors, we conclude [the party] lacks standing
to maintain this criminal action”). The criminal
statutes cited by Plaintiff do not contain any such private
right of action. Consequently, those statutes cannot serve as
the basis for her lawsuit.
Plaintiff appears to rely on the FSIA as a basis for relief,
and presumably seeks to sue in her capacity as a diplomat of
the Bradford Republic. See, e.g., doc. 1 at 2,
docs. 21, 23. Plaintiff primarily relies on the
notion that she, as an individual, qualifies as a
“foreign state” within the meaning of the FSIA,
which provides that “a foreign state shall be immune
from the jurisdiction of the court of the United States and
of the States” except as provided in the Act's
various exceptions. 28 U.S.C. § 1604; see also doc.
1 at 2-3. This reliance suffers from at least two flaws.
First, the “term ‘foreign state' on its face
indicates a body politic that governs a particular
territory.” Samantar v. Yousuf, 560 U.S. 305,
315 (2010). Plaintiff, as a solitary individual, does not
qualify under this meaning. Plaintiff may argue that the
Bradford Republic exists as an entity separate from her and
that she is acting as its agent or instrumentality as defined
in FSIA. However, the Supreme Court has rejected the
proposition that an individual representing a foreign
government can qualify for immunity under the FSIA.
Id. at 313-25. Second, the FSIA only confers
immunity. It does not provide any basis for a cause of
action. Even if one were to accept Plaintiff's dubious
position that she, as a representative of her proclaimed
Bradford Republic, qualifies for FSIA immunity, it would not
permit her to sue in federal court. At best, it would serve
as a defense in the criminal cases brought against her in
short, none of the possible bases for Plaintiff's claim
are viable. As a result, Plaintiff does not bring any claims
for which relief can plausibly be ...