Silva v. U.S. Customs and Border Protection

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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
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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 §
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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
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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).
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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.,
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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).
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SIGNED on this 15th day of December, 2025 at Brownsville, Texas.
____________________________
Ignacio Torteya, III
United States Magistrate Judge
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