Opinion
No. 09-5334.
Filed On: September 2, 2010.
BEFORE: Henderson, Tatel, and Kavanaugh, Circuit Judges.
ORDER
Upon consideration of the motion for summary affirmance and the response thereto; and the motion for appointment of counsel, it is
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED that the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court properly dismissed appellant's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Claims brought against government officials in their official capacity are generally treated as claims against the United States itself. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994); see also Clark v. Library of Congress, 750 F.2d 89, 103 (D.C. Cir. 1984). Because appellant seeks monetary damages for constitutional torts purportedly committed by a federal agency, the only possible basis for subject matter jurisdiction would be the Federal Tort Claims Act ("FTCA"). See GAF Corp. v. United States, 818 F.2d 901, 904-05 (D.C. Cir. 1987). The United States, however, "has not rendered itself liable under [the FTCA] for constitutional tort claims." Meyer, 510 U.S. at 478; see also Harper v. Williford, 96 F.3d 1526, 1528 (D.C. Cir. 1996) (per curiam) ("[C]onstitutional claims are not cognizable under the FTCA."). Accordingly, the district court lacked subject matter jurisdiction over appellant's claims against appellees in their official capacities.
The complaint also failed to state a claim upon which relief could be granted against the appellees in their individual capacities. Appellant has not alleged the unnecessary and wanton infliction of pain required to support an Eighth Amendment violation. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 102-104 (1976). Nor has appellant shown that his continued detention or the appellees' alleged attempts to deceive him into signing travel documents violates the Fifth Amendment when his continued detention is the result of his failure to cooperate with the government's attempts to remove him.Partovi v. Holder, 2010 WL 2534197 (D. Ariz. May 4, 2010); see also Pelich v. INS, 329 F.3d 1057, 1061 (9th Cir. 2003) (stating that a "non-cooperative detainee . . . cannot legitimately object to his continued detention when that very detention is caused by his own conduct"). In addition, the complaint fails to state a claim under 42 U.S.C. § 1983. See Settles v. United States Parole Comm'n, 429 F.3d 1098, 1104 (D.C. Cir. 2005) ("Section 1983 does not apply to federal officials acting under color of federal law.").
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc.See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.