FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 24, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-15307

Non-Argument Calendar

________________________

D. C. Docket No. 07-01505-CV-CAM-1

JESUS MARIA LOPEZ,

Plaintiff-Appellant,

versus

MICHAEL WALLACE, Attorney at Law,

STEPHANIE STUCKEY BENFIELD, Attorney at Law,

TRACI SODERBERG, Assistant District Attorney,

DAVID KEETON, Asst. VP, Business Development

(LOMA),

DAVID P. HENRY, Gwinnett County Police Department,

et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(April 24, 2009)
Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Jesus Maria Lopez, a pro se Colombian citizen incarcerated in a Georgia

prison, appeals the dismissal of his civil claim under the Alien Tort Statute,

28 U.S.C. § 1350, alleging a violation of his rights under Article 36 of the Vienna

Convention on Consular Relations (“VCCR”). On June 19, 2007, Lopez filed a

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pro se suit against his trial and appellate attorneys, the assistant district attorneys

who prosecuted him, and the police officers who arrested and interrogated him.

Lopez maintained that he was asserting “a Federal Alien Tort action authorized by

42 U.S.C. [§] 1983 to redress the deprivation, under color of International Treaty,

of rights secured by Article 36 of the VCCR and Laws of the United States,” and

that the district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and

1350. Lopez alleged that on the day of his arrest, January 17, 2001, his arresting

officers refused his request to contact the Colombian consulate, in violation of his

right to such notification under the VCCR. Lopez further alleged that his attorneys

and the district attorneys were aware of this violation but failed to do anything

about it. Lopez sought a declaration that his VCCR rights had been violated, an

 Article 36 of the VCCR provides that signatory States shall inform an alien’s consulate 1

when he is arrested or imprisoned, and the arresting State shall inform the alien of his right to

consulate contact. VCCR, art. 36(1)(b), Apr. 24, 1963, 21 U.S.T. 77, 101, T.I.A.S. No. 6820. 

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injunction ordering the defendants to inform non-citizens of their right to consular

notification, and damages.

The district court sua sponte dismissed Lopez’s complaint pursuant to 28

U.S.C. § 1915A(b)(1) for failure to state a § 1983 claim, concluding that the

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VCCR did not provide Lopez with judicially enforceable rights. Lopez filed a

motion for reconsideration, which the district court denied on the grounds that (1)

even if Lopez did possess an individual right to consular notification under the

VCCR, he could not show actual harm arising from the violation of that right; and

(2) Lopez’s § 1983 action was frivolous because it was filed after the two-year

statute of limitations had run. Lopez appealed the court’s dismissal of his

§ 1983 complaint and denial of his motion to reconsider.

We affirmed in part and vacated and remanded in part. We held that

irrespective of whether the VCCR grants individual rights that are enforceable

under § 1983, the district court was correct in holding that Lopez’s claim would be

time-barred. We went on to note, however, that neither the district court’s sua

sponte order dismissing Lopez’s complaint nor its order denying his motion to

reconsider had addressed whether the complaint stated a claim under § 1350 or

 Section 1915A provides for a screening process whereby a judge reviews as soon as

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possible any suit filed by a prisoner against a government entity or officer and may dismiss the

suit for, among other things, failure to state a claim.

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whether § 1350’s ten-year statute of limitations, which had not run, should have

been applied. Accordingly, we remanded the case for consideration of whether

Lopez’s complaint stated a § 1350 claim, and, assuming that it did, whether that

claim could survive § 1915A review.

On remand, the district court dismissed Lopez’s complaint for failure to state

a claim under either § 1983 or § 1350, citing our recently published decision in

Gandara v. Bennett, 528 F.3d 823 (11th Cir. 2008), in which we held that the

VCCR does not contain rights or remedies individually enforceable through

§ 1983. On appeal, Lopez argues essentially that because the VCCR is selfexecuting and creates judicially enforceable rights, he may enforce those rights

pursuant to the “remedial structure” of § 1350. We disagree.

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In Gandara, we held that Article 36 of the VCCR does not confer judicially

enforceable individual rights and that violations of the VCCR are properly

addressed by and between the states themselves. 528 F.3d at 829. Our holding

applies irrespective of whether an individual petitioner attempts to enforce Article

 Section 1350 provides that “[t]he district courts shall have original jurisdiction of any 3

civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of

the United States.” 

 We review de novo a sua sponte dismissal for failure to state a claim, pursuant to 4

§ 1915A(b)(1). Leal v. Georgia Dep’t of Corr., 254 F.3d 1276, 1279 (11th Cir. 2001). We

liberally construe pro se pleadings, holding them to a less stringent standard than attorneydrafted pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 

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36 pursuant to § 1983 or § 1350. See Gandara, 528 F.3d at 380 n.1 (Rodgers, J.,

specially concurring) (noting that the petitioner had filed his claim under the

VCCR pursuant to both § 1983 and § 1350). Lopez may not use § 1350 to create

an individual cause of action under the VCCR where we have found there to be

none. See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (dismissing alien’s §

1350 action alleging he had been abducted in Mexico by U.S. agents in violation of

the extradition treaty between the U.S. and Mexico and customary international

law on the grounds that § 1350 is jurisdictional and authorizes suits based only on

a limited number of offenses recognized at the time of its enactment or universally

recognized today). Therefore, the district court did not err in dismissing Lopez’s

complaint for failure to state a claim under § 1350.

AFFIRMED.

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