Bailey v. Hammond et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREA BAILEY,
Plaintiff,
v. No. 2:25-cv-00291-KG-GJF
JAMES HAMMOND and
MATTHEW RAY,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Matthew Ray’s motions to dismiss Plaintiff
Andrea Bailey’s complaint for lack of jurisdiction, Doc. 6, and failure to state a claim, Doc. 12.
Mr. Ray removed this action from state court pursuant to 28 U.S.C. § 1442(a)(1). See Doc. 2.
Ms. Bailey has not responded to either motion. For the reasons below, the Court dismisses the
complaint without prejudice. Ms. Bailey shall file an amended complaint within 21 days of this
Order that complies with the pleading standards described below.
I. Background
Ms. Bailey’s complaint is brief. Appearing pro se, she alleges that a “S.W.A.T. Team”
caused “damages” through a “dynamic entry through all gates [and] doors.” Doc. 1-2 at 3. She
seeks compensation for “$10,000 dollars in lawful firearms” taken “under color of law without
warrant” which have not been returned to her “after years of pleading.” Id. She seeks $10,000
and court costs. Id.
Mr. Ray, an agent from the Federal Bureau of Investigations (“FBI”), has filed two
motions to dismiss Ms. Bailey’s complaint. First, he moves to dismiss any official-capacity
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claim under Rule 12(b)(1), arguing that the Court lacks subject-matter jurisdiction under the
doctrine of derivative jurisdiction and because the United States has not waived sovereign
immunity for Ms. Bailey’s claims. See Doc. 6. Second, he moves to dismiss Ms. Bailey’s
individual-capacity claim under Rule 12(b)(6), arguing that the Court should not extend the
Bivens doctrine to the circumstances alleged. See Doc. 12.
II. Standards of Review
A Rule 12(b)(1) motion to dismiss may present either a facial or factual challenge to
subject-matter jurisdiction. A movant may “make a facial challenge to the plaintiff’s allegations
concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint,”
United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 547 (10th Cir. 2001), or
“present[] evidence to challenge the factual basis upon which subject matter jurisdiction rests.”
Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003). When assessing subject-matter
jurisdiction, the Court has “wide discretion to” consider “other documents” beyond the
complaint. Shawnee Indians, 253 F.3d at 547.
To survive a Rule 12(b)(6) motion to dismiss, the complaint must state a claim that is
“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A claim is
plausible only when the plaintiff pleads factual content allowing the court to draw a “reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). Well-pleaded allegations are accepted as true and viewed in the plaintiff’s
favor, but “conclusory allegations, unwarranted inferences, [and] legal conclusions” are not
credited. Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994).
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The Court must “construe a pro se plaintiff’s pleadings liberally.” Mapp v. Dovala, 138
F.3d 1335, 1337 (10th Cir. 1998). However, the Court will “not assume the role of advocate,
and conclusory allegations without supporting factual averments are insufficient.” Id.
III. Analysis
Construing Ms. Bailey’s pleadings liberally, the Court considers whether she states
claims against Mr. Ray in his official and individual capacities. The Court dismisses her (A)
official-capacity claim for lack of subject-matter jurisdiction and (B) individual-capacity claim
for failure to allege Mr. Ray’s personal participation in the alleged constitutional violation.
A. Ms. Bailey’s official-capacity claim fails.
The Court grants Mr. Ray’s Rule 12(b)(1) motion and dismisses Ms. Bailey’s official-
capacity claim. “An action against a federal official in his official capacity is actually a suit
against the sovereign—the United States.” Peterson v. Timme, 621 Fed. Appx 536, 541 (10th
Cir. 2015) (citing Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001)). The United States is
immune from suit unless it has waived sovereign immunity, and such a waiver “must be
unequivocally expressed.” United States v. Mitchell, 445 U.S. 535, 538 (1980). Accordingly, “a
party seeking to bring a claim against a federal official acting in his or her official capacity—and
therefore the United States—must identify a specific waiver of immunity in order to establish
jurisdiction.” Peterson, 621 Fed. Appx at 541. Ms. Bailey’s complaint identifies no such
waiver. The Court therefore lacks subject-matter jurisdiction over the official-capacity claim and
dismisses it without prejudice. Ms. Bailey may amend her complaint if she can identify a waiver
establishing the Court’s jurisdiction.
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B. Ms. Bailey’s individual-capacity claim fails.
The Court also dismisses Ms. Bailey’s claim against Mr. Ray in his individual capacity
for failure to allege personal participation. In a Bivens action, a plaintiff has a “private right of
action for damages against federal officers” that violate the plaintiff’s constitutional rights.
Iqbal, 556 U.S. at 675. To state a Bivens claim, the plaintiff must show that each defendant
violated that constitutional right through his or her “own individual actions.” Pahls v. Thomas,
718 F.3d 1210, 1225 (10th Cir. 2013). It is therefore “incumbent upon a plaintiff to identify
specific actions taken by particular defendants” to state “a viable...Bivens claim.” Id. at 1226.
Ms. Bailey fails to allege Mr. Ray’s personal participation in the alleged constitutional
violation. She states that a “S.W.A.T. Team” conducted a “dynamic entry” and seized firearms
and ammunition which have not been returned to her “after years of pleading.” Doc. 1-2 at 5.
Ms. Bailey fails to allege who Mr. Ray is or how he is connected to this action. Specifically, she
does not allege that Mr. Ray was a member of the S.W.A.T. team, participated in the search or
seizure, or was responsible for the alleged failure to return the property. Nor does she identify
the constitutional right Mr. Ray allegedly violated. These allegations do not plausibly show that
Mr. Ray personally violated Ms. Bailey’s constitutional rights. The Court grants Mr. Ray’s Rule
12(b)(6) motion and dismisses the individual-capacity claim without prejudice. Ms. Bailey may
amend her complaint if she can allege facts identifying both the constitutional violation and Mr.
Ray’s personal participation in that violation.
Mr. Ray also argues that dismissal is warranted because Bivens does not extend to the
circumstances alleged. See Doc. 12 at 6–7. That argument is premature. Ms. Bailey’s
complaint does not clearly identify the constitutional right she claims was violated or the legal
theory supporting her claim. Without a well pleaded constitutional violation, the Court cannot
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determine whether this case presents a new Bivens context. The Court declines to reach Mr.
Ray’s Bivens argument at this stage.
IV. Conclusion
The Court grants Mr. Ray’s motions, Docs. 6 and 12, and dismisses the complaint
without prejudice. Ms. Bailey shall file an amended complaint within 21 days of this order that
includes:
a. A short, plain statement of each cause of action that she intends to bring in this lawsuit,
including references to the specific statute or legal right allegedly violated;
b. Succinct and specific factual allegations supporting each claim set out in numbered
paragraphs;
c. Identification of what each defendant allegedly did and when; and
d. Identification of how each defendant’s conduct allegedly harmed her.
IT IS SO ORDERED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
Filing) accompanying this document.
Electronically filed documents can be found
on the Court’s PACER public access
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