Tony L. Kight, Sr. v. U.S. District Court, Northern District of Georgia

Case: 16-11845 Date Filed: 03/09/2017 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-11845
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-02202-LMM

TONY L. KIGHT, SR.,

Plaintiff-Appellant,

versus

U.S. DISTRICT COURT, NORTHERN DISTRICT OF GEORGIA,

Defendant-Appellee.

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Appeal from the United States District Court
for the Northern District of Georgia
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(March 9, 2017)

Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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Appellant Tony Kight, proceeding pro se, appeals the district court’s grant of

the Appellee’s motion to dismiss his complaint for lack of subject matter

jurisdiction. Kight’s complaint against appellee, the United States District Court

for the Northern District of Georgia (“USDC”), 1 alleged Fifth Amendment due

process violations, fraud, and negligence arising out of the USDC’s disposition of

a previous employment discrimination case against a third party in which Kight

was the plaintiff. After review, 2 we affirm.

I. DISCUSSION

Kight contends the district court erred in dismissing his complaint for lack

of subject matter jurisdiction because he identified valid waivers of sovereign

immunity for his claims. He asserts his action for declaratory and injunctive relief

may proceed against federal officers and the United States generally. He also

disputes the district court’s alternative holding that he failed to state a claim on

which relief could be granted and that it erred in denying his motions for

1
The term “USDC” is used when referring to the United States District Court for the
Northern District of Georgia as the defendant, and the term “district court” is used when
referring to the district court from which this appeal is taken.
2
“We review a district court’s determination that it lacked subject matter jurisdiction de
novo.” Mahone v. Ray, 326 F.3d 1176, 1178 (11th Cir. 2003). We also review the application of
the Federal Tort Claims Act (“FTCA”) de novo. Turner ex rel. Turner v. United States, 514 F.3d
1194, 1203 (11th Cir. 2008).
2
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reconsideration. But because the district court was correct that it did not have

subject matter jurisdiction, we need not address these arguments. 3

The district court did not err in dismissing Kight’s complaint because Kight

failed to identify a valid waiver of sovereign immunity for his claims. Sweet Pea

Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005) (holding

the plaintiff has the burden of establishing subject matter jurisdiction); FDIC v.

Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields

the Federal Government and its agencies from suit. . . . Sovereign immunity is

jurisdictional in nature.” (citations omitted)). The statutes that he argues waive

sovereign immunity for his suit against the USDC are inapposite.4 Additionally,

Kight’s contention that his claims are not barred because he seeks declaratory and

injunctive relief is incorrect; he must still establish a valid waiver of sovereign

3
In addition, Counts 2, 3, and 4 of Kight’s complaint asserted fraud solely against
Kight’s defendant and its counsel from his former suit, but do not charge the USDC with any
wrongdoing. The district court properly dismissed them.
4
Kight submits a laundry list of statutes purportedly constituting a sovereign immunity
waiver, but each line item misses the mark. 42 U.S.C. § 1983 and 28 U.S.C. § 1343 apply to
federal civil rights violations by state officials. 28 U.S.C. § 1343(a). These statutes do not waive
federal sovereign immunity. United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982).
28 U.S.C. § 1367(a) provides district courts with supplemental jurisdiction over claims that are
closely related to those over which the district court may have original jurisdiction, but does not
waive sovereign immunity. Section 702 of the Administrative Procedure Act provides for
certain actions against federal agencies. 5 U.S.C. § 702. But “agency” does not include the
courts of the United States. 5 U.S.C. § 701(b)(1)(B). Finally, the Declaratory Judgments Act
merely creates a remedy allowing district courts to “declare the rights and other legal relations”
of parties in suits where a district court has jurisdiction, and does not waive immunity or convey
jurisdiction where it otherwise does not exist. 28 U.S.C. § 2201; Schilling v. Rogers, 363 U.S.
666, 677 (1960).
3
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immunity before his claims seeking these types of relief from the federal

government may go forward. Lynch v. United States, 292 U.S. 571, 582 (1934)

(“The sovereign’s immunity from suit exists whatever the character of the

proceeding or the source of the right sought to be enforced.”).

Although Kight raised a negligence claim, which the FTCA normally

permits, his claim here does not come within the statute’s waiver of sovereign

immunity. Kight’s complaint requests only declaratory and injunctive relief, not

damages. Because the FTCA does not waive sovereign immunity for relief other

than money damages, his claims seeking injunctive and declaratory relief are

barred. 28 U.S.C. § 1346(b)(1); cf. Dalrymple v. United States, 460 F.3d 1318,

1324 (11th Cir. 2006). In addition, Kight’s claims cannot proceed under the FTCA

because the FTCA preserves the defense of judicial immunity where applicable,

and the challenged actions of the judges in Kight’s prior case are protected by

absolute judicial immunity. 28 U.S.C. § 2674; Bolin v. Story, 225 F.3d 1234,

1239–42 (11th Cir. 2000) (holding judges who are sued individually are entitled to

absolute judicial immunity for actions taken in their judicial capacity unless they

acted in the clear absence of all jurisdiction); Sibley v. Lando, 437 F.3d 1067, 1070

(11th Cir. 2005).

4
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II. CONCLUSION

For the reasons stated above, we affirm the judgment of the district court.

AFFIRMED.