                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    January 31, 2007
                      UNITED STATES CO URT O F APPEALS             Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 JO H N PA U L SH ER ID A N ,

          Plaintiff-Appellant,
                                                        No. 06-2181
 v.
                                                  (D.C. No. 04-1345-FHS)
                                                         (D .N.M .)
 U N ITED STA TES O F A M ER ICA,

          Defendant-Appellee.



                             OR DER AND JUDGM ENT *


Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.


      Plaintiff-Appellant John Paul Sheridan appeals the district court’s dismissal

of his pro se civil action against the United States, which — liberally construed

— alleges constitutional violations comm itted by various New M exico state and

county officials. Because we conclude that the district court erred in construing

M r. Sheridan’s complaint as proceeding only against the United States, and




      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
thereby disposing of the complaint strictly on grounds of sovereign immunity, w e

remand the case for further proceedings.

      M r. Sheridan’s complaint, though difficult to follow, largely consists of a

narrative description of his misadventures through New M exico state and county

police, court, and corrections systems between 1994 and 1997. During this

period, he alleges that his constitutional rights were violated by parties including

New M exico State Police officers, New M exico district court judges, Socorro

County Sheriff’s officers, the staff of New M exico Corrections Department

prisons, and multiple state public defenders. The caption of his complaint,

however, named only the United States of America as defendant. Because none

of the violations alleged by M r. Sheridan directly involved the federal

government or any federal official, the district court construed M r. Sheridan’s

complaint as “an oblique reference to constitutional violations comm itted by the

United States for its failure, through its agencies and employees, to investigate

and rectify the alleged constitutional violations committed by the various state

officials.” The United States responded to M r. Sheridan’s complaint by moving

to dismiss on the basis of sovereign immunity, and, after M r. Sheridan failed to

respond, the district court granted the motion to dismiss on this ground. 1

      1
       The district court noted in its order that, under its local rules, M r.
Sheridan’s failure to reply to the United States’ m otion to dismiss constituted his
consent to the court’s granting of the motion irrespective of its merits. D.N.M .
LR-Civ. 7.1(b). The district court did not grant dismissal on this procedural
                                                                          (continued...)

                                         -2-
      Because M r. Sheridan brought his complaint against the U nited States pro

se, we review his pleadings liberally and under a less stringent standard than

applied to pleadings drafted by attorneys. See Haines v. Kerner, 404 U.S. 519,

520 (1972); Johnson v. Johnson, 466 F.3d 1213, 1214 (10th Cir. 2006) (per

curiam). In particular, “in a pro se case when the plaintiff names the wrong

defendant in the caption . . . courts may look to the body of the complaint to

determine who the intended and proper defendants are.” Trackwell v. United

States Gov’t, ___F.3d___, 2007 W L 30035 at *1 (10th Cir. Jan. 5, 2007) (italics

added); see also Johnson, 466 F.3d at 1215 (“Despite [the pro se plaintiff]’s

attempts to identify the unnamed officers and the district court’s recognition that

he accused unnamed M CPD officers of false arrest, the district court construed

this claim as one against only the M CPD . By not construing this claim also as

one against the unnamed officers, the district court erred.”).

      Insofar as M r. Sheridan’s complaint named the United States as a

defendant, the district court correctly dismissed the claims against it. “It is



      1
        (...continued)
ground, however, instead basing its dismissal on sovereign immunity grounds
raised in the motion. Because the district court retains discretion under local rule
7.1(b) in determining whether to grant a motion to which the opposing party has
failed to respond, we cannot rely on this rationale as an alternative ground for
affirming the district court’s dismissal. See Ashby v. M cKenna, 331 F.3d 1148,
1151 (10th Cir. 2003) (“[W]ith respect to a matter comm itted to the district
court’s discretion, we cannot invoke an alternative basis to affirm unless we can
say as a matter of law that it would have been an abuse of discretion for the trial
court to rule otherw ise.” (quotation omitted)).

                                         -3-
axiomatic that the United States may not be sued without its consent and that the

existence of consent is a prerequisite for jurisdiction.” U nited States v. M itchell,

463 U.S. 206, 212 (1983). Such consent may not be implied, but must be

“unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30,

33-34 (1992); United States v. King, 395 U .S. 1, 4 (1969). The U nited States,

however, has not waived its sovereign immunity for constitutional tort claims.

See F.D.I.C. v. M eyer, 510 U.S. 471, 475 (1994) (holding that sovereign

immunity precludes damage claims for constitutional violations against the United

States government).

      How ever, liberally construed, we read M r. Sheridan’s complaint as also

seeking to hold the New M exico state and county officials identified in his

narrative responsible for violating his constitutional rights. First, we note that the

bulk of the complaint is devoted to listing the wrongs allegedly visited upon him

by these state officials. Second, the complaint is devoid of allegations directly

implicating federal officials or United States agencies. Third, and most

revealingly, M r. Sheridan concludes his complaint by asking the district court for

“a Federal Investigation and against all defendants and I would ask that these

defendants be held responsible for their actions and prosecuted [sic generally].”

He also asks the court for damages of $700,000, “for petitioners [sic] pain and

suffering due to all defendants stated above.” The context of these requests

makes clear that by “defendants,” M r. Sheridan is referring to the state and county

                                          -4-
officials he believes violated his constitutional rights — not the United States

government. Thus, we conclude that the district court should have construed M r.

Sheridan’s pro se complaint as he appears to have intended it: as an action against

the New M exico state and county officials described in the complaint, seeking to

hold them liable for violating his constitutional rights. See Trackwell,

___F.3d___, 2007 W L 30035 at *1. The most appropriate vehicle for these

claims appears to be 42 U.S.C. § 1983, and we therefore construe the complaint

as invoking this statutory cause of action. See Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991) (“[I]f the court can reasonably read the pleadings to state a

valid claim on which the [pro se] plaintiff could prevail, it should do so despite

the plaintiff’s failure to cite proper legal authority, his confusion of various legal

theories, his poor syntax and sentence construction, or his unfamiliarity with

pleading requirements.”).

      Based on the above, we hold that the district court erred by construing M r.

Sheridan’s pro se complaint strictly according to its caption and dismissing it

under this construction because he named the United States as the sole defendant.

Instead, “look[ing] to the body of the complaint to determine who the intended

and proper defendants are,” Trackwell, ___F.3d___, 2007 W L 30035 at *1, M r.




                                          -5-
Sheridan clearly intended to include New M exico state and county officials as

defendants. 2

      Accordingly, we A FFIRM the district court’s dismissal of M r. Sheridan’s

claims against the U nited States but REM AND for further proceedings on M r.

Sheridan’s claims against the appropriate New M exico state and county officials.

W e express no opinion on the merits of these claims. On remand, M r. Sheridan

should be given an opportunity to amend his complaint to name the proper

defendants. See Johnson, 466 F.3d at 1215-16.



                                      ENTERED FOR THE COURT



                                      David M . Ebel
                                      Circuit Judge




      2
        W e mean to express no criticism of the district court for having failed to
follow Trackwell and Johnson, since both opinions w ere issued subsequently to
that court’s order of dismissal. Nevertheless, we are bound to apply the law in
effect at the time of our decision on appeal, even if that law is newly-minted. See
Davidson v. America O nline, Inc., 337 F.3d 1179, 1184 (10th Cir. 2003) (“W here
a change in law occurs while a case is on appeal, we apply the law in effect at the
time of our decision.”).

                                       -6-
