Martinez v. Longmont United Hospital et al

Filing 16

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/12/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01644-BNB

BRYAN MARTINEZ,
Plaintiff,
v.
LONGMONT UNITED HOSPITAL,
LONGMONT POLICE DEPARTMENT, aka CIVIC CENTER,
LUTHERAN MEDICAL CENTER,
NATIONAL JEWISH HEALTH, and
SALUD CLINIC,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Bryan Martinez, currently resides in Longmont, Colorado. He initiated
this action by filing pro se a Complaint pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §
552(a)(4)(B) (Freedom of Information Act “FOIA”) and a Motion and Affidavit for Leave
to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff was granted leave to proceed
pursuant to § 1915 on June 25. 2014. Magistrate Judge Boyd N. Boland reviewed the
Complaint and, on July 8, 2014, ordered Plaintiff to respond within thirty days and show
cause why jurisdiction is proper and the action should not be dismissed because
Plaintiff is requesting information from a source other than a federal agency and if any
named defendant is a state agency a claim filed against them would be pursuant to a
state public information act and is a matter of state law. Plaintiff filed a Response on
July 24, 2014.
In the Response, Plaintiff asserts that he desires to change the jurisdiction for his
claims to 5 U.S.C. § 551(2) and (3). He also states the following:

1) State courts will not assist him;
2) He has been falsely imprisoned for three years;
3) The Longmont Hospital tricked him into drinking
Lidocaine;
4) The city attorney taunts him;
5) The police are asking physicians to give him diseases;
6) He knows the cameras are not there “for pretty”;
7) When he went to Kaiser Permanente in Lakewood
officers on duty drove by him when he was waiting
for the bus;
8) He is looking for work but he will not be hired;
9) He was constricted from reading the FOIA and federal
rules;
10) He can bypass the state courts due to his disability;
11) A therapist will not diagnose him without a form that
contains a federal seal;
11) He never knows if he is talking to a judge or a clerk;
12) He is not able to save documents;
13) The police stalk him;
14) There is contradictions with every medicine and vitamin
that he takes;
15) His brain is being “blocked from phlegm misting [his]
mind”;
16) Stalking is not a felony; and
17) The U.S. Supreme Court made policy that causes
mental anguish.
First, Plaintiff’s statements are delusional and nonresponsive to the Court’s
directive to state why this action should not be dismissed. Second, § 551(2) and (3)
does not provide a jurisdictional basis for filing an FOIA claim against named
Defendants. Section 551 clarifies who is not an agency for the purpose of the FOIA.
Plaintiff, therefore, fails to demonstrate, as he was directed to do in the July 8, 2014
Order, that any of the named defendants are federal agencies and that this Court has
jurisdiction over his claims.
The Court may raise subject matter jurisdiction sua sponte at any time during the
course of the proceedings, see McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252
(10th Cir. 1988). “The party seeking to invoke the jurisdiction of a federal court must
demonstrate that the case is within the court’s jurisdiction.” United States v. Bustillos,
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31 F.3d 931, 933 (10th Cir. 1994). Because Plaintiff has failed to do so the action will
be dismissed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $505 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Complaint and the action are dismissed without prejudice
pursuant to Fed. R. Civ. P. 12(h)(3). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 12th day of

August

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
UNITED STATES DISTRICT COURT

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