Unpublished Disposition, 921 F.2d 279 (9th Cir. 1990)

MEMORANDUM^** 

Demola Adesanya appeals pro se the district court's grant of summary judgment in favor of Attorney General Richard Thornburgh. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate the judgment and remand court with instructions to dismiss the action for lack of subject matter jurisdiction. Capitol Industr.-EMI v. Bennett, 681 F.2d 1107, 1118 & n. 29 (9th Cir.), cert. denied, 459 U.S. 1087 (1982).

In February, 1989, Adesanya was arrested by the Immigration and Naturalization Service (INS) and charged with deportability for entering the United States as an intending immigrant without a valid immigrant visa. He was found deportable by an immigration judge and ordered deported. The Board of Immigration Appeals (BIA) sustained the appeal, finding that the INS failed to establish by clear and convincing evidence the charges against Adesanya. Adesanya was released from INS custody in August, 1989. He then filed his complaint seeking 10 billion dollars in damages from Thornburgh for obstruction of justice, fraud, false arrest, malice, unlawful detention, intentional tort, oppression, and emotional distress.

Adesanya's claim is barred under the doctrine of sovereign immunity. Because Adesanya named Attorney General Thornburgh as defendant in his official capacity only, his action must be considered a claim against the United States. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Adesanya does not allege that Attorney General Thornburgh was acting in other than his official capacity. Nor does he allege that the United States waived sovereign immunity in this action or that the action falls under any waiver set forth in the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. As such, dismissal is required. Gilbert, 756 F.2d at 1458. Thus, an order of dismissal, and not a Rule 56 motion for summary judgment, is the proper method for disposing of an action in which subject matter jurisdiction is lacking. See Capitol, 681 F.2d at 1118 (citations omitted). Therefore, we vacate the judgment and remand with instructions to dismiss Adesanya's action for lack of subject matter jurisdiction.

VACATED AND REMANDED with instructions.