20-3427-cv Shields v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of June, two thousand twenty-one.

PRESENT: GUIDO CALABRESI, WILLIAM J. NARDINI, Circuit Judges, GARY S. KATZMANN, Judge. * _____________________________________

Antonia W. Shields, Plaintiff-Appellant,

v. No. 20-3427

United States, Defendant-Appellee. _____________________________________

For Plaintiff-Appellant: Antonia W. Shields, pro se, Saratoga Springs, NY

For Defendant-Appellee: No appearance

* Judge Gary S. Katzmann, of the United States Court of International Trade, sitting by designation. Appeal from a judgment of the United States District Court for the Northern

District of New York (Glenn T. Suddaby, C.J.; Christian F. Hummel, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED, but the case is

REMANDED for the court to amend its judgment and enter dismissal without prejudice.

Antonia W. Shields, pro se, sued the United States, asserting that the district court’s

dismissal of a prior lawsuit under

and a local rule violated

because the court applied a higher standard of review to her allegations based on her in

forma pauperis status and mislabeled her a “prisoner.” The district court sua sponte

dismissed the complaint with prejudice under

(e)(2)(B), holding that it

was barred by sovereign immunity and failed to state a claim. The court denied leave

to amend as futile. Shields now appeals the district court’s judgment and moves for a

stay of this Court’s mandate so she can file a petition for a writ of certiorari in the U.S.

Supreme Court. We assume the reader’s familiarity with the case.

We review de novo a district court’s sua sponte dismissal of a complaint under

(e)(2)(B) and its determination of its subject matter jurisdiction, including

whether sovereign immunity exists. Zaleski v. Burns,

(2d Cir. 2010)

(dismissal of complaint); Filler v. Hanvit Bank,

(2d Cir. 2004) (subject

matter jurisdiction determination). A district court must construe pro se filings “liberally

2 and interpret them ‘to raise the strongest arguments that they suggest.’” Kirkland v.

Cablevision Sys.,

(2d Cir. 2014) (quoting Burgos v. Hopkins,

(2d Cir. 1994)).

The district court correctly held that sovereign immunity deprived it of subject

matter jurisdiction over Shields’s complaint. We begin with two points of law: first,

“[t]he United States, as sovereign, is immune from suit unless it waives immunity and

consents to be sued,” Cooke v. United States,

(2d Cir. 2019); and second, the

plaintiff has the burden of showing that subject matter jurisdiction exists, Lunney v. United

States,

(2d Cir. 2003). Shields never alleged in her complaint that the

United States waived sovereign immunity and consented to be sued pursuant to the

statutes under which she asserted claims (

and 1915). Mere references

to sovereign immunity in her complaint and in her objections to the magistrate’s report

and recommendation failed to establish subject matter jurisdiction, which requires “a

clear statement from the United States waiving sovereign immunity.” United States v.

White Mountain Apache Tribe,

(2003). Shields’s argument on appeal—

that the district court had jurisdiction because she raised a federal question—is also

unavailing. While she may have raised a federal question, she asserted her claim against

the federal government, which is immune from suit and has not waived its immunity.

We decline to consider Shields’s other arguments on sovereign immunity—that 28

(a)(2) waives sovereign immunity here and that sovereign immunity

violates her right to petition the government under the First Amendment—both of which

she raises for the first time on appeal. See Greene v. United States,

(2d Cir.

1994). 2

However, while the district court properly held that it lacked subject matter

jurisdiction over Shields’s complaint, it erred in dismissing the complaint with prejudice.

Dismissals for lack of subject matter jurisdiction must be without prejudice. Katz v.

Donna Karan Co., L.L.C.,

(2d Cir. 2017).

We deem abandoned any argument that the district court erred in denying Shields

leave to amend her complaint because she does not raise this point in her appellate brief.

See LoSacco v. City of Middletown,

, 92–93 (2d Cir. 1995).

Finally, we deny Shields’s motion to stay our mandate pending her anticipated

petition to the Supreme Court for a writ of certiorari on the question of whether

(g) violates the First Amendment. Federal Rule of Appellate Procedure

41(d)(1) requires such a motion to “show that the petition would present a substantial

question and that there is good cause for a stay.” Given the lack of subject matter

jurisdiction over her complaint, her failure to raise this question before the district court,

and the fact that her claims are undeveloped, we hold that Shields fails to meet her

2 We likewise do not consider Shields’s argument raised for the first time on appeal that the district court violated her equal protection rights when it dismissed her lawsuit under

.

4 burden for such relief.

We have considered Shields’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court, REMAND for entry

of an amended judgment dismissing the case without prejudice, and DENY Shields’s

motion for a stay.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court

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