United States District Court, S.D. Ohio, Western Division
MICHAEL R. BARRETT UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Magistrate Judge's
April 1, 2019 Report and Recommendation
(“R&R”). (Doc. 21). The parties were given
proper notice under 28 U.S.C. § 636(b)(1)(C) and Federal
Rule of Civil Procedure 72(b), including notice that the
parties would waive further appeal if they failed to file
objections to the R&R in a timely manner. See United
States v. Walters, 638 F.2d 947 (6th Cir.
1981). Plaintiff filed timely objections (Doc. 24) and
Defendant filed a Response thereto (Doc. 26).
initially filed the Complaint in this matter in the Court of
Common Pleas of Hamilton County, Ohio. (Doc. 2). The
Complaint includes five counts and requests $30 trillion.
(Id.). Defendant timely removed this matter to
federal court pursuant to 28 U.S.C. § 1442. (Doc. 1).
Defendant subsequently filed a Motion to Dismiss (Doc. 3) to
which Plaintiff Responded in opposition (Doc. 5). Plaintiff
also filed two Motions for Summary Judgment (Docs. 7, 9) and
two Motions and Declarations for Change of Judge (Doc. 15,
17). The April 1, 2019 R&R found that dismissal of this
matter was warranted, as the Court lacks subject matter
jurisdiction, and recommended that Defendant's Motion to
Dismiss be granted, Plaintiff's Motion for Summary
Judgment and Motions and Declaration for a Change of Judge be
denied as moot, and that the Court deny Petitioner leave to
appeal this Order in forma pauperis. (Doc. 21 at
addition to the motions discussed in the R&R, Plaintiff
has filed a Motion to Settle (Doc. 28), a Motion to Expedite
(Doc. 43), a document titled “Divested of
Jurisdiction” (Doc. 36), a document titled
“Plaintiffs Opposition to Defendants Opposition to
Plaintiffs Filings” (Doc. 54), a document titled
“Judicial Tort” (Doc. 58), and numerous documents
titled “evidence filing.”
by a magistrate judge under Section 636(b)(1)(A) are subject
to review by the district court. When proper objections to an
R&R are received, the Court “shall make a de novo
determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(3). However, a pro se party's pleadings must be
construed liberally and are held to less stringent standards
than formal pleadings drafted by an attorney. See Haines
v. Kerner, 404 U.S. 519, 520-21 (1972). Upon review, the
district judge “may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
subject matter to be established in a lawsuit against the
United states, or an agency thereof, the government must
consent to suit. See, e.g., United States v.
Mitchell; 463 U.S. 206, 212 (1983); United States v.
Testan, 424 U.S. 392, 399 (1976); United States v.
Sherwood, 312 U.S. 584, 586 (1941); Muniz-Muniz v.
United States Border Patrol, 741 F.3d 668, 671
(6th Cir. 2013) (“Without a waiver of sovereign
immunity, a court is without subject matter jurisdiction over
claims against federal agencies or officials in
their official capacities”) (emphasis added); see
also Passmore v. U.S. Dep't of Homeland Sec., No.
1:18-CV-481, 2019 WL 926023, at *2 (S.D. Ohio Feb. 26, 2019).
Court has previously explained to Plaintiff, “[t]he
government must explicitly waive sovereign immunity in a
clear, express, and unambiguous fashion.” Id.
(citing Taylor v. Geither, 703 F.3d 328, 333 (6th
Cir. 2013)); see also United States v. White Mountain
Apache Tribe, 537 U.S. 465, 472 (2003); United
States v. King, 395 U.S. 1, 4 (waiver of sovereign
immunity “cannot be implied but must be unequivocally
expressed”). This explicit consent to suit is a
prerequisite for jurisdiction. CareToLive v. von
Eschenbach, 525 F.Supp.2d 938, 950 (S.D. Ohio 2007),
aff'd sub nom. CareToLive v. Eschenbachi, 290
Fed.Appx. 887 (6th Cir. 2008) (citing Mitchell, 463
U.S. at 212). Moreover, Plaintiff bears the burden of
identifying a waiver of sovereign immunity and, if Plaintiff
fails to carry the burden, the court will dismiss the suit
for lack of jurisdiction. CareToLive, 525 F.Supp.2d
at 950 (citing Reetz v. United States, 224 F.3d 794,
795 (6th Cir. 2000)).
Magistrate explained the above law (Doc. 21 at PageID 111)
and found that Plaintiff failed to identify an express waiver
of sovereign immunity and, thus, recommended that the
Complaint should be dismissed for lack of subject matter
jurisdiction (id. at PageID 112). The Court agrees
that Plaintiff's Complaint contains only conclusory and
unsupported assertions related to various components of the
U.S. banking system and does not identify an explicit waiver
of sovereign immunity. The Court also agrees that Plaintiff
fails to set forth factual allegations that identify any act
or omission on part of Defendant and fails to provide any
basis for jurisdiction. Similarly, the Court finds that
Plaintiff fails to identify a waiver of sovereign immunity in
his objections. (Doc. 24). “A waiver of sovereign
immunity must be express, clear, and unambiguous, and
Plaintiff has failed to identify such a waiver.”
Passmore, 2019 WL 926023, at *3 (citing F.D.I.C.
v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a
waiver, sovereign immunity shields the Federal Government and
its agencies from suit.”)). In sum, the Court disagrees
with Plaintiff's contention that the R&R lacks
adequate legal analysis and agrees with the Magistrate
Judge's recommendation that the Court lacks subject
matter jurisdiction over this case.
extent that Plaintiff objects to the R&R, as he had
witnesses who he alleges needed to testify in this matter
(Doc. 24), he provides no argument as to how this Court has
subject matter jurisdiction over his matter, such that it
could ever hear testimony, and the Court is not persuaded.
See Thornton v. Sw. Detroit Hosp., 895 F.2d 1131,
1133 (6th Cir. 1990) (“subject matter jurisdiction may
be raised sua sponte at any juncture because a federal court
lacks authority to hear a case without subject matter
on the foregoing, the Court OVERRULES
Plaintiff's objections (Doc. 24) and ADOPTS in
full the Magistrate Judge's April 1, 2019
R&R (Doc. ...