Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2008

Huberty v. US Ambassador
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4330




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"Huberty v. US Ambassador" (2008). 2008 Decisions. Paper 634.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-4330


                               DONALD M. HUBERTY,
                                                Appellant


                                            v.

                        U.S. AMBASSADOR TO COSTA RICA;
                             U.S. SECRETARY OF STATE


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 07-cv-01420)
                     District Judge: Honorable A. Richard Caputo


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 25, 2008

               Before: MCKEE, SMITH and CHAGARES, Circuit Judges

                            (Opinion filed: August 21, 2008)


                                        OPINION


PER CURIAM

      Appellant Donald M. Huberty appeals pro se from the District Court’s order

dismissing his complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). For the following reasons, we will affirm the District Court’s order of
dismissal.

       Because we write primarily for the parties, we need not repeat the details of

Huberty’s claims here. In brief, Huberty alleges that during a visit in November 2005 to

the United States embassy in Costa Rica, he was the victim of an assault and battery by

the embassy security director. Huberty further alleges that “embassy security police

record all visitors’ private conversations.” Huberty filed a complaint seeking monetary

damages in the Court of Common Pleas for Carbon County, Pennsylvania, naming the

United States Ambassador to Costa Rica and the United States Secretary of State as

defendants. Defendants filed a notice of removal pursuant to 28 U.S.C. § 1442 and §

1446, and the case was removed to the United States District Court for the Middle District

of Pennsylvania. Defendants then filed a motion to dismiss pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6), which was granted by the District Court. Huberty

timely appealed.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291. We exercise

plenary review over a dismissal of a complaint under Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). See Gould Elecs. Inc. v. United States, 

, 176 (3d Cir.

2000); DiGiacomo v. Teamsters Pension Trust Fund of Phila. and Vicinity, 

,

222 n.4 (3d Cir. 2005).

       For substantially the reasons given by the District Court, Huberty’s complaint was

properly dismissed. To the extent Huberty attempted to assert a claim under the Federal

Tort Claims Act (“FTCA”), this claim was properly dismissed because Huberty did not

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name the United States as defendant. 28 U.S.C. § 2679(b)(1). Further, it is undisputed

that Huberty failed to file a claim with the appropriate administrative agency, a

prerequisite to filing suit in district court. 28 U.S.C. § 2675(a).

       To the extent Huberty attempted to assert claims under Bivens v. Six Unknown

Agents of the Fed. Bureau of Narcotics, 

(1971), these claims were also

properly dismissed. Huberty’s complaint appears to name the defendants in their official

capacities only. An action against government officials in their official capacities

constitutes an action against the United States; and Bivens claims against the United

States are barred by sovereign immunity, absent an explicit waiver. See FDIC v. Meyer,

, 483 (1994); Jaffee v. United States, 

, 717 (3d Cir. 1979). See

also Consejo de Desarrollo Economico de Medicali v. United States, 

, 1173

(9th Cir. 2007) (Bivens action can be maintained against a defendant in his or her

individual capacity only, and not in his or her official capacity). Moreover, Huberty’s

complaint does not allege that either defendant was personally involved with the alleged

wrongs and respondeat superior liability is not an available basis for relief under Bivens.

See Ruiz Rivera v. Riley, 

, 28 (1st Cir. 2000) (collecting cases holding that

respondeat superior is not a viable theory of Bivens liability); cf. Rode v. Dellarciprete,

, 1207-08 (3d Cir. 1988) (no respondeat superior liability in 42 U.S.C. §

1983 cases).

       On appeal, Huberty makes no mention of his putative claim under the

Pennsylvania constitution, and therefore is apparently not appealing the District Court’s

                                               3
disposition of this claim to this Court. In any event, we conclude that this claim was

properly dismissed.

       On appeal, Huberty also appears to claim that the District Court and the attorneys

for the appellees failed to comply with various rules of civil procedure. After reviewing

the District Court record, we conclude that this claim is without merit.

       For the foregoing reasons, the District Court’s order of dismissal will be affirmed.

Huberty’s “Motion to Appear in Person” and “Motion to instruct a Judicial Clerk of any

Circuit Court Judge to review all cases before Judge A. Richard Caputo in the past two

years that prevented Discovery prior to Case Management Conference” are denied.




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