1:25-cv-00048•Silva v. U.S. Customs and Border Protection
Gesamter Gesetzestext
1/7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION ZAIDA LUZ SILVA, § § Plaintiff, § § v. § Civil Action No. 1:25-cv-048 § U.S. CUSTOMS AND BORDER PROTECTION, § § § Defendant. § MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Before the Court are: (1) Plaintiff Zaida Luz Silva’s “Complaint for a Civil Case” (Silva’s “Complaint”); and (2) Defendant U.S. Customs and Border Protection’s (“CBP”) “Motion to Dismiss.” Dkt. Nos. 1, 11. For the reasons discussed below, it is recommended that the Court: (1) GRANT CBP’s Motion to Dismiss; and (2) DIRECT the Clerk of Court to CLOSE this case. I. FACTUAL AND PROCEDURAL BACKGROUND On March 7, 2025, Silva filed her pro se Complaint against CBP. See Dkt. No. 1. Silva alleges that a CBP agent used “excessive force” against her due to the CBP agent’s “anger issues.” Id. at 4. Silva further alleges that the encounter left her and her children suffering from post-traumatic stress disorder (“PTSD”), and resulted in damages to her United States District Court Southern District of Texas ENTERED December 15, 2025 Nathan Ochsner, Clerk Case 1:25-cv-00048 Document 17 Filed 12/15/25 in TXSD Page 1 of 7
2/7 camera, laptop, vehicle, and person. Id. She seeks monetary relief in the sum of $25,000.00. Id. at 5. Silva left much of her Complaint blank, including crucial questions concerning the nature of the complaint and this Court’s jurisdiction. See generally id. Although Silva checked “Federal question” under the “Basis for Jurisdiction” question, the section indicating that a plaintiff should list the specific “federal statutes, federal treaties, and/or provisions of the United States Constitution” at issue is blank. Id. at 3. The Civil Cover Sheet faces similar critical deficiencies; the section requiring Silva to “[c]ite the U.S. Civil Statute under which [she] is filing” her cause of action is blank. Id. at 6. On June 16, 2025, CBP filed its Motion to Dismiss requesting dismissal under either Federal Rule of Civil Procedure (“FRCP”) 12(b)(1) or 12(b)(6). Dkt. No. 11 at 1; FED. R. CIV. P. 12(b)(1), (6). On October 16, 2025, the Court ordered Silva to file an amended complaint by October 31, 2025, providing the basis for the Court’s jurisdiction and citing any federal statutes, federal treaties, or provisions of the U.S. Constitution under which she intends to bring this action. Dkt. No. 15. In the same Order, the Court provided notice to Silva that failure to comply would likely result in dismissal of her case. Id. at 2. To date, Silva has not filed an amended complaint or other filing in this case. II. LEGAL STANDARD A. Subject Matter Jurisdiction Federal courts possess limited jurisdiction—they “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The two primary sources of subject matter jurisdiction are federal question jurisdiction and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Pursuant to § Case 1:25-cv-00048 Document 17 Filed 12/15/25 in TXSD Page 2 of 7
3/7 1331, the district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Pursuant to § 1332, the district courts have original jurisdiction over “all civil actions where the matter in controversy exceeds the sum or value of $75,000 … and is between” diverse parties. 28 U.S.C. § 1332. Under FRCP 12(b)(1), a trial court must dismiss an action for lack of subject matter jurisdiction when the court is without the statutory or constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The party seeking the federal forum bears the burden of establishing facts supporting federal jurisdiction by a preponderance of the evidence. Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009); Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). An FRCP 12(b)(1) factual attack challenging subject matter jurisdiction may be based on: “(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.” Kling v. Hebert, 60 F.4th 281, 284 (5th Cir. 2023). When an FRCP 12(b) motion is on point, a court must construe the facts in favor of the nonmoving party. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 104 (1998). A pleading filed by a pro se litigant is liberally construed under a less stringent standard of review than a formal pleading drafted by a lawyer. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro se filing must still “abide by the rules that govern Case 1:25-cv-00048 Document 17 Filed 12/15/25 in TXSD Page 3 of 7
4/7 the federal courts.” E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (quoting Frazier v. Wells Fargo Bank, N.A., 541 Fed. Appx. 419, 421 (5th Cir. 2013). When an FRCP 12(b)(1) motion is filed with an FRCP 12(b)(6) motion, a court should generally consider the FRCP 12(b)(1) jurisdictional attacks before addressing any attack on the merits. Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam).1 This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. The court’s dismissal of a plaintiff’s case because the court lacks subject matter jurisdiction is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Id. B. Failure to State a Claim Dismissal is appropriate under FRCP 12(b)(6) if the plaintiff fails “to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). FRCP 12(b)(6) is read in conjunction with FRCP 8(a), requiring “a short and plain statement of the claim showing that the pleader is entitled to relief.” Richter v. Nationstar Mortgage, LLC, Civil Action No. H–17–2021, 2017 WL 4155477, at *1 (S.D. Tex., 2017) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009)); FED. R. CIV. P. 8(a)(2). To withstand an FRCP 12(b)(6) challenge, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. 544, 570. This means that a complaint, taken as a whole, “must contain either direct 1 In Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., the Supreme Court explained that, although “a federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction),” as without jurisdiction it cannot decide the merits of the case, “there is no mandatory ‘sequencing of jurisdictional issues.’” 549 U.S. 422, 428-29 (2007) (citations omitted). “[A] federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits.” Id. at 431 (citation omitted). Case 1:25-cv-00048 Document 17 Filed 12/15/25 in TXSD Page 4 of 7
5/7 or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory[.]” Id. at 562 (quoting Car Carriers, Inc. v. Ford 3/12 Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984) (internal quotation marks omitted; emphasis and omission in original)). III. DISCUSSION A. Silva’s Complaint fails to state a basis for this Court’s jurisdiction. The United States, as sovereign, is immune from suit unless it consents to be sued. Broussard v. U.S., 989 F.2d 171, 174. To bring suit against the federal government, the plaintiff must show that the federal defendant unequivocally waived its sovereign immunity. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990); see Kokkonen, 511 U.S. at 377. The court “must strictly construe all waivers of the federal government’s sovereign immunity, resolving all ambiguities in favor of the sovereign.” Chapa v. U.S. Dep’t of Justice, 339 F.3d 388, 390 (5th Cir. 2003) (quoting Linkous v. U.S., 142 F.3d 271, 275 (5th Cir. 1998)) (cleaned up). Liberally construed, Silva’s Complaint still fails to establish that the Court enjoys subject matter jurisdiction over this case. Critically, Silva fails to list a federal statute, federal treaty, or provision of the United States Constitution under which she seeks relief. See Dkt. No. 1 at 3. While Silva appears to allege tort claims, she cites no statute. Dkt. No. 1 at 4–6. Although she may have a potential claim under the Federal Tort Claims Act (“FTCA”), it would be improper for the Court to infer a cause of action here. See E.E.O.C., Case 1:25-cv-00048 Document 17 Filed 12/15/25 in TXSD Page 5 of 7
6/7 767 F.3d at 484 (holding that a pro se litigant “must properly plead sufficient facts that, when liberally construed, state a plausible claim to relief”). Even if the Court were to infer such a cause of action, it must be dismissed for lack of jurisdiction; the proper party in an FTCA matter is the United States, not the responsible agency or employee. Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir. 1988) (unless statutory language provides otherwise, an agency or government employee cannot be sued under the FTCA). Despite the liberal construction afforded to pro se plaintiffs’ pleadings, the Court cannot proceed here. Critically, it is unclear what statute, if any, grants the Court jurisdiction. IV. RECOMMENDATION For the foregoing reasons, the undersigned recommends that the Court: (1) GRANT CBP’s Motion to Dismiss; and (2) DIRECT the Clerk of Court to CLOSE this case. V. NOTICE TO PARTIES A party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge’s report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Case 1:25-cv-00048 Document 17 Filed 12/15/25 in TXSD Page 6 of 7
7/7 SIGNED on this 15th day of December, 2025 at Brownsville, Texas. ____________________________ Ignacio Torteya, III United States Magistrate Judge Case 1:25-cv-00048 Document 17 Filed 12/15/25 in TXSD Page 7 of 7
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