Opinion
Civil Action No. 5:03-CV-0088-C
October 6, 2003
ORDER
On this date the Court considered Defendants' Motion to Dismiss and Brief in Support filed on June 30, 2003, by John Ashcroft, George W. Bush, and Larry Combest ("Defendants"), and Plaintiff's Response to Defendants' Motion to Dismiss, filed on July 21, 2003, by Michael Lee Hastey ( pro se "Plaintiff"). The Court also considered Plaintiff's Motion for Summary Judgment, filed on August 28, 2003. After considering all the relevant arguments and evidence, and for the reasons stated below, this Court GRANTS Defendants' Motion to Dismiss and DENIES Plaintiff's Motion for Summary Judgment as moot. All other pending motions are likewise DENIED as moot.
I. FACTUAL BACKGROUND
Plaintiff resides in Lorenzo, Texas, where he alleges that he owns a small poultry farm on which he raises poultry to be shown at fairs and stock shows and to be "tested in the pit," i.e., to be used in game fighting competitions. Plaintiff claims that Defendants have conspired with "Animal Rightsists" (sic, throughout) to make and enforce "laws which bolster the position and creed of the Animal Rightsists which in any manner violate the Constitution is (sic) and unlawful participation in the ongoing Conspiracy to have all live by the beliefs of the Animal Rightsists, and their creed." In particular, Plaintiff claims that Defendants, by enacting and enforcing section 10302 of the Farm Bill of 2002, have created a statutory entitlement of rights for animals that effectively establishes as law the creed of animal rights activists, in violation of the Establishment Clause and Free Exercise Clause of the First Amendment. Plaintiff further claims that this legislation violates the Fourth, Fifth, Ninth, Tenth, and Fourteenth Amendments, and the Privileges and Immunities Clause of the Constitution.
This Court notes that Plaintiff's Complaint is based upon, and quotes from, the 2002 Amendments, P.L. 107-171, § 10302. This Court will, for the purposes of this decision, construe Plaintiff's Complaint to be regarding the final, codified version of that legislation, now codified under 7 U.S.C. § 2156, as the "Animal fighting venture prohibition" ("the Act"), which provides in part:
(a) Sponsoring or exhibiting an animal in an animal fighting venture
(1) In general
Except as provided in paragraph (2), it shall be unlawful for any person to knowingly sponsor or exhibit an animal in any animal fighting venture, if any animal in the venture was moved in interstate or foreign commerce.
(2) Special rule for certain states
With respect to fighting ventures involving live birds in a State where it would not be in violation of the law, it shall be unlawful under this subsection for a person to sponsor or exhibit a bird in the fighting venture only if the person knew that any bird in the fighting venture was knowingly bought, sold, delivered, transported, or received in interstate or foreign commerce for the purpose of participation in the fighting venture.
(b) Buying, selling, delivering, or transporting animals for participation in animal fighting venture
It shall be unlawful for any person to knowingly sell, buy, transport, deliver or receive for purposes of transportation, in interstate or foreign commerce, any dog or other animal for purposes of having the dog or other animal participate in an animal fighting venture.
* * *
(d) Violation of State law
Notwithstanding the provisions of subsection (c) of this section, the activities prohibited by such subsection shall be unlawful with respect to fighting ventures involving live birds only if the fight is to take place in a State where it would be in violation of the laws thereof.7 U.S.C.A. § 2156 (Supp. 2003).
Plaintiff seeks a declaratory judgment from this Court on his claims that the Act is unconstitutional and injunctive relief against the passage of any "present and future laws regarding animals." Plaintiff further seeks compensation for losses he "suffers as a result of actions and inactions of Defendants." In addition, Plaintiff asserts that his claims are such that they trigger the application of the RICO statutes and federal Hate Crimes legislation.
II. PROCEDURAL BACKGROUND
Plaintiff's Complaint was filed on April 30, 2003. On September 25, 2003, this Court granted Plaintiff leave to file his first Amended Complaint. Defendants' Motion to Dismiss and Brief in Support was filed on June 30, 2003, and Plaintiff's Response to Defendants' Motion to Dismiss was filed on July 21, 2003. On August 28, 2003, Plaintiff filed his Motion for Summary Judgment.
III. STANDARD
Subject Matter Jurisdiction
Lack of subject matter jurisdiction may be raised at anytime by any party, or by the court sua sponte. FED. R. Civ. P. 12(h)(3). Bank One Texas v. United States, 157 F.3d 397, 403 (5th Cir. 1998). Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. FED. R. Civ.P. 12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).
The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995). Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court's dismissal of a Plaintiff's case because the court lacks subject matter jurisdiction is not a determination on the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Id.
In examining a Rule 12(b)(1) motion, the district court is empowered to consider matters of fact which may be in dispute. Williamson v. Tucker, 645 F.2d 404, 413 (1981). Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
IV. DISCUSSION
Plaintiff asserts that his rights protected under the Privileges and Immunities Clause, Article IV, section 2, paragraph 1 of the United States Constitution, and the First, Fourth, Fifth, Ninth, Tenth, and Fourteenth Amendments to the Constitution have been violated by Defendants' enactment and enforcement of laws entitling animals to certain protections not granted to animals by either the Bible or the Constitution. Plaintiff seeks a declaration from this Court that the Act complained of is unconstitutional and that the Defendants be enjoined from passing any "present and future laws regarding animals." Plaintiff further seeks compensation for losses he "suffers as a result of actions and inactions of Defendants." In addition, Plaintiff asserts that his claims are such that they trigger the application of the RICO statutes and federal Hate Crimes legislation.Privileges and Immunities Clause and the Fourth. Fifth. Ninth. Tenth, and Fourteenth Amendments
Plaintiff contends that the enactment and enforcement of the "Animal Welfare Act" provision of the "Farm Bill of 2002. i.e. SEC. 10302" which "prohibit[s] interstate movement of animals for animal fighting," is unconstitutional. Defendants contend that Plaintiff has asserted (1) no unreasonable intrusion or seizure of property in violation of the Fourth Amendment and (2) no deprivation of property without due process of law in violation of the Fifth Amendment. Defendants argue, therefore, that Plaintiff has failed to establish an actual case or controversy between Plaintiff and Defendants and, thus, Plaintiff's claims must be dismissed for lack of jurisdiction. This Court agrees. It has been well established by the Supreme Court that
before a federal court can consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue. Article III, of course, gives the federal courts jurisdiction over only "cases and controversies," and the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process.Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990).
"To establish an Art. Ill case or controversy, a litigant first must clearly demonstrate that he has suffered an `injury in fact.'" Id. at 155. The injury "must be actual or imminent, not `conjectural' or `hypothetical.'" Id. The injury "must be concrete in both a qualitative and temporal sense." Id. See also Monsanto Co. v. FERC, 963 F.2d 827, 829 (5th Cir. 1992) (finding that to "invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an injury traceable to the defendant and likely to be redressed by a favorable judicial decision") (internal citations omitted).
"A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations." Whitmore, 495 U.S. at 155-56. See also Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 368 n. 3 (5th Cir. 1995) (concluding that "[b]ecause federal courts may only hear cases or controversies under Article III, it is unconstitutional for the Court to issue mere advisory opinions"). Moreover, the Court must refrain from adjudicating "abstract questions of [purported] wide public significance which amount to generalized grievances, pervasively shared and most appropriately addressed in the representative branches." Valley Forge Christian Coll. v. Ams. United for Separatism, 454 U.S. 464, 474-75 (1982) (internal quotations omitted).
Plaintiff has not indicated whether his challenge to the constitutionality of the Act under the Privileges and Immunities Clause, Article IV, section 2, paragraph 1 of the United States Constitution and the Fourth, Fifth, Ninth, Tenth, and Fourteenth Amendments, is a facial or an as-applied challenge. Where it is unclear, as here, whether a challenge to a statute's constitutionality is a facial or an as-applied one, the presumption that a statute is constitutional will guide this Court to consider Plaintiff's challenge as an as-applied challenge to the statute's constitutionality on all bases except for the First Amendment. See Stupak-Thrall v. United States, 89 F.3d 1269, 1288 (6th Cir. 1996) ("unless a plaintiff expressly disavows an `as-applied' challenge, the complaint that a regulation is invalid should be construed, if possible, as an as-applied challenge"); LeBrun v. Thornburg, 111 F. Supp. 1204, 1209 (D. NJ. 1991) (Sarokin, J.) (choosing to construe a challenge as an as-applied one).
The First Amendment challenge will be considered separately for the reasons stated below.
As to Plaintiff's standing to make an as-applied challenge to the Act, this Court agrees that Plaintiff has neither asserted an unreasonable intrusion or seizure of property in violation of the Fourth Amendment nor shown a deprivation of property without due process of law in violation of the Fifth Amendment. This Court finds that Plaintiff's litany of grievances has failed to establish a concrete injury in fact or an imminent injury which is not hypothetical or conjectural. Consequently, this Court finds that Plaintiff has failed to show that an actual case or controversy exists between the parties and that Plaintiff therefore lacks standing to sue for declaratory and injunctive relief based on the Act's putative violation of the Privileges and Immunities Clause, Article IV, section 2, paragraph 1 of the United States Constitution and the Fourth, Fifth, Ninth, Tenth, and Fourteenth Amendments. Therefore, Plaintiff's claims for declaratory and injunctive relief based on the Act's putative violation of the Privileges and Immunities Clause, Article IV, section 2, paragraph 1 of the United States Constitution and the Fourth, Fifth, Ninth, Tenth, and Fourteenth Amendments must be dismissed for lack of jurisdiction. First Amendment
The Court notes that not only has Plaintiff not alleged any facts that could be construed as either a concrete or even hypothetical injury that violates the Fourth or Fifth Amendments, but neither has he alleged any action by a state, rather than a federal, official such as would be required for a violation of the Privileges and Immunities Clause, Article IV, Section 2, paragraph 1 of the Constitution, or of the Fourteenth Amendment. Frazier v. Heebe, 788 F.2d 1049, 1052 (5th Cir. 1986) (holding that Privileges and Immunities clause "does not apply to the federal government and its officers"), rev'd on other grounds, 482 U.S. 641 (1987); Newsome v. E.E.O.C., 301 F.3d 227, 232 (5th Cir. 2002) (holding that "the Fourteenth Amendment applies only to state actors."), cert. denied, 537 U.S. 1039 (2002). Nor can the Court discern from Plaintiff's Amended Complaint any facts that would amount to even a hypothetical injury that violates any rights granted by the Constitution pursuant to the Ninth or Tenth Amendments.
Even were the Court to grant Plaintiff standing to make an as-applied challenge, the Court notes that Plaintiff has pleaded no facts that would justify suit against Defendants in their individual capacities; furthermore, the Court notes that Defendants would likewise be protected in their official capacities by Absolute and Sovereign Immunity, as Defendants have clearly argued in their Brief in Support of their Motion to Dismiss.
Plaintiff also claims that Defendants have conspired against him by enacting and enforcing laws which create an entitlement of rights for animals in violation of Plaintiff's First Amendment rights. Plaintiff claims that "laws giving animals entitlement to rights, and judging or condemning individuals by the manner of treatment of animals contradicts the Bible, disparaging the Plaintiff's Christian belief, while bolstering the Animal Rightsist creed." Plaintiff argues that Defendants are a part of an "[o]n-going conspiracy to have all live by the beliefs of the Animal Rightsists, and their creed." Defendants assert that Plaintiff's claims fail to state a claim under either the Free Exercise Clause or the Establishment Clause of the First Amendment, and thus, Plaintiff's claims should be dismissed.
Prior to any consideration of Defendants' motion to dismiss Plaintiff's First Amendment claims for failure to state a claim, this Court must first satisfy itself that it has subject matter jurisdiction with regard to Plaintiff's First Amendment claims. In doing so, this Court must again determine the threshold issue of whether Plaintiff has standing for such a challenge. The Supreme Court has noted that "[t]he gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Flast v. Cohen, 392 U.S. 83, 99 (1968) (internal quotation marks omitted).
The nature of the "personal stake in the outcome" of a particular party challenging a statute implicates the question of whether the challenge is a facial or an as-applied one. See Bowen v. Kendrick, 487 U.S. 589, 602 (1988) ("There is, then, precedent in this area of constitutional law for distinguishing between the validity of the statute on its face and its validity in particular applications"). Because the fundamental interests embedded in the First Amendment require this Court to "keep in mind the myriad, subtle ways" in which its values can be eroded, Lynch v. Donnelly, 465 U.S. 668, 694 (1984), this Court will not apply the presumption that Plaintiff's Complaint is in the nature of an as-applied challenge but will, in an abundance of caution, grant Plaintiff the broader surface on which to establish standing that is provided by a facial challenge to the Act's constitutionality under the First Amendment.
In any event, as noted supra, Plaintiff has given this Court absolutely no basis on which the Court could entertain his challenge as an as-applied one, and the Court will not embellish his allegations in an attempt to fashion one for him
Even with the latitude provided by a facial challenge, "the concept of injury for standing is particularly elusive in [ First Amendment] cases." Murray v. City of Austin, 947 F.2d 147, 151 (5th Cir. 1991) (citation omitted). In deciding whether standing exists, a court should carefully consider "whether the Plaintiff's complaint falls within the zone of interests protected by the . . . constitutional provision at issue . . . [and] whether the complaint raises abstract questions amounting to generalized grievances which are more appropriately resolved by the legislative branches." Id. at 151. To have Article III standing to pursue an alleged violation of the Free Exercise Clause of the First Amendment, a plaintiff must allege that his or her own "particular religious freedoms are infringed." School Dist. of Abington v. Schempp, 374 U.S. 203, 224 n. 9 (1963).
In giving definition to what might be described as the "zone of interests" protected by the Free Exercise Clause, the Supreme Court has held:
The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." The government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma.Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 877 (1990) (emphasis and citations omitted). Plaintiff has presented no facts to show how his religious freedom to practice the particular tenets or rituals prescribed by his Christian faith has suffered a "substantial or significant burden." See Murray, 947 F.2d at 151 n. 4. In other words, none of the things of which he complains falls within the "zone of interests" protected by the Free Exercise Clause. Consequently, Plaintiff has failed to provide this Court with any basis on which to grant him standing under the Free Exercise Clause.
The fact that Plaintiff complains that the Act does not allow him to treat animals in a way that he believes himself entitled according to his particular understanding of the Bible, is not enough to grant him standing. It is not Plaintiff's religious beliefs that are proscribed by the Act, nor is it his religious conduct, but rather his conduct with regard to animals involved in cock-fighting. Plaintiff has made no claim that this activity is a tenet or ritual of his religion. It is well established that "activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers." Wisconsin v. Yoder, 406 U.S. 205, 220 (1972). Additionally, "[w]e have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Smith, 494 U.S. at 878-79. Furthermore, "if prohibiting the exercise of religion . . . is not the object of the [legislation] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended." Id. at 878.
Article III standing to pursue a challenge under the Establishment Clause of the First Amendment is no less "elusive." To have standing as a taxpayer to challenge the constitutionality of a statute, a plaintiff must allege the unconstitutionality "of exercises of congressional power under the taxing and spending clause of Art. I, s 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." Flast, 392 U.S. at 102. A plaintiff must be able to show a tangible effect of the challenged statute on the Plaintiff's tax burden that is "a direct dollars-and-cents injury" and not merely "a religious difference." Valley Forge, 454 U.S. at 478. Plaintiff's claim is clearly in the nature of a "religious difference" and does not allege any impermissible expenditure of funds to or on behalf of any religious organization pursuant to Congress' taxing and spending authority that would suffice to give him standing as a taxpayer.
Under the more general principles of standing, as outlined supra, this Court likewise finds that Plaintiff has failed to allege a specific or concrete enough injury to grant him standing to challenge the Act's constitutionality under the Establishment Clause. Plaintiff's claims amount to nothing more than "abstract questions amounting to generalized grievances," and this Court will not attempt to "create its own jurisdiction by embellishing otherwise deficient allegations." Plaintiff has failed to present anything more than his speculative theories regarding the influence of "Animal Rightsists" on the legislative process and that this legislation is a putative enactment of a sectarian moral code. Even ignoring the fact that Plaintiff has adduced no facts showing that so-called "Animal Rightsist" actually form a coherent religious body whose tenets are being "established" by the Act, this Court is nonetheless not required to conclude that legislation "serves an impermissible religious purpose simply because some of the goals of the statute coincide with the beliefs of certain religious organizations." Bowen v. Kendrick, 487 U.S. 589, 604 (1988). It is true that a case or controversy does not necessarily exist even where the "clash of interests is real and . . . strong." Doremus v. Bd. of Ed. of Borough of Hawthorne, 342 U.S. 429, 436 (1952) (Douglas, J., dissenting). Even granting, as this Court is willing to, that Plaintiff's beliefs are sincere and based on his understanding of the Bible, this Court fails to find that Plaintiff's Complaint provides the "concrete adverseness which sharpens the presentation of issues" that is the jurisdictional touchstone in an actual case or controversy. As we find that Plaintiff has established no case or controversy in his First Amendment challenge to the Act, we can not grant standing for Plaintiff's request under the First Amendment for declaratory or injunctive relief. Conspiracy, RICO and Hate Crimes
Plaintiff does not have available to him a private cause of action under any federal "hate crimes" statutes. Allen v. Sanders, 1998 WL 318841, *9 (N.D.Tex., 1998) ("Private citizens have no right to institute criminal prosecutions in federal court"). Consequently, Plaintiff is without standing to sue with regard to this claim, and therefore this Court lacks jurisdiction as to this claim.
The Racketeer Influenced and Corrupt Organizations Act provides a private civil action to recover treble damages for injury suffered as a result of a violation of its substantive provisions. To state a civil RICO claim under 28 U.S.C. § 1962, a plaintiff must allege: (1) the conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Price v. Pinnacle Brands, Inc., 138 F.3d 602, 606 (5th Cir. 1998). In order to have standing to sue, a plaintiff must establish that he has been "injured in his business or property by reason of a violation of section 1962." Thus, a RICO plaintiff must satisfy two elements — injury and causation. Id. Plaintiff has not alleged that he has suffered any injury to his business or property and thus does not have statutory standing to sue under PJCO standards, and this Court lacks jurisdiction to hear this claim.
Furthermore, it is not evident that Plaintiff has any standing to sue in his private capacity for injunctive relief under RICO, either. Price, 138 F.3d at 605 n. 5.
A federal court has supplemental jurisdiction over any claims that are "so related to claims in the action within [the court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). Plaintiff claims he is the victim of a conspiracy. Because civil conspiracy is a state action, and because this Court does not have original jurisdiction over any of Plaintiff's claims under federal statutes or the United States Constitution, this Court does not have supplemental jurisdiction over any of Plaintiff's state law causes of action and must consequently dismiss these claims for lack of jurisdiction.
Furthermore, under 28 U.S.C. § 1915, the Court is required to dismiss a complaint or any portion of a complaint, if the complaint is frivolous. A claim may be dismissed as frivolous if the claim lacks an arguable basis in law or fact. Denton v. Hernandez, 504 U.S. 25 (1992). Because Plaintiff's claims for conspiracy and violations of the Hate Crimes Act and RICO statutes are wholly baseless as to factual allegations or legal argument, these claims are likewise dismissed as frivolous.
CONCLUSION
After considering all the relevant arguments and evidence, this Court finds that Plaintiff has failed to establish this Court's jurisdiction under any of his claims. Therefore, this Court GRANTS Defendants' Motion to Dismiss.
Consistent with the Court's grant of Defendants' Motion to Dismiss, Plaintiff's Motion for Summary Judgment is hereby DENIED as moot. All other pending motions are likewise DENIED as moot.
SO ORDERED.