Wideman v. Watson et al

Filing 8

ORDER: That the Complaint and action are DISMISSED WITHOUT PREJUDICE due to the Court's lack of subject matter jurisdiction. By Judge Lewis T. Babcock on 10/31/2014. (tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02488-BNB
EUGENE WIDEMAN JR.,
Plaintiff,
v.
DR. WILLIAM WATSON, and
THE MAPLE LEAF ORTHOPAEDIC CLINIC,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Eugene Wideman Jr., resides in Pueblo, Colorado. Mr. Wideman
initiated this action by filing a Complaint (ECF No. 1) alleging that he was a victim of
medical malpractice and that his constitutional rights were violated.
On September 17, 2014, the Court entered an order (ECF No. 5) directing Mr.
Wideman to file an amended complaint that complies with Rule 8 of the Federal Rules
of Civil Procedure and that provides a short and plain statement of the grounds for the
court’s subject matter jurisdiction by identifying a proper statutory authority that allows
the court to consider his claims. On October 9, 2014, Mr. Wideman submitted an
Amended Complaint (ECF No. 7) pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 8101.
I. Pro Se Plaintiff
The Court must construe the filings liberally because Mr. Wideman is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991); see also Trackwell v. United States,

472 F.3d 1242, 1243 (10th Cir. 2007) (holding allegations in pro se pleadings and other
papers to less stringent standards than those drafted by attorneys). If the Complaint
reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] 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.” Hall, 935 F.2d at 1110. However, the Court
should not act as an advocate for pro se litigants. See id. The Court also may not
assume that a plaintiff can prove facts that have not been alleged, or that a defendant
has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors
of Cal., Inc. V. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also
Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not
“supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City
of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct
arguments or theories for the plaintiff in the absence of any discussion of those issues”).
A plaintiff's pro se status does not entitle him to application of different rules. See
Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Lack of Subject Matter Jurisdiction
It is the Court’s duty to assure itself of its subject matter jurisdiction before
proceeding with any case. See Citizens Concerned for Separation of Church & State v.
City & County of Denver, 628 F.2d 1289, 1297, 1301 (10th Cir. 1980). Rule 12 of the
Federal Rules of Civil Procedure empowers a court to dismiss a complaint for lack of
subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1) and (h)(3). Dismissal for lack of
jurisdiction is not a judgment on the merits of a plaintiff's case. Rather, it calls for a
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determination that the court lacks authority to adjudicate the matter, attacking the
existence of jurisdiction rather than the allegations of the complaint. See Castaneda v.
INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing that federal courts are courts of
limited jurisdiction and may only exercise jurisdiction when specifically authorized to do
so). The burden of establishing subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A
court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in
which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909; see
also McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988) (issue of
subject matter may be raised sua sponte by the court at any point in the proceedings).
The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213,
1218 (10th Cir. 2006).
III. Analysis
In the Amended Complaint, Mr. Wideman asserts jurisdiction pursuant to 42
U.S.C. § 1983 and 42 U.S.C. § 8101.1 Mr. Wideman alleges that Defendants violated
his First Amendment Right to free speech, Fourth Amendment property rights, and his
right to receive medical care under the Federal Employees Compensation Act (FECA),
5 U.S.C. § 8101. He alleges that he is a former federal employee who was injured in
the performance of his duty and that Defendant Watson was his “primary Workers
Compensation Doctor.” He contends that Defendant Watson “did nothing to improve
1

It appears that Mr. Wideman intends to assert jurisdiction pursuant to the
Federal Employees Compensation Act, 5 U.S.C. § 8101, not 42 U.S.C. § 8101, which is
the statutory provision for Congressional findings and declaration of purpose for the
Neighborhood Reinvestment Corporation.
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my condition” and in 2009, caused “me to have a blood clot, that required replacement
of my Right Knee.” He further alleges that Defendant Watson “dropped me as a patient,
claiming I was to [sic] difficult to treat, and has interfered with my right to have
continuous medical by illegally refusing to hand over my medical records for over six
months.” He also alleges that Defendant Watson’s “claim that I was an un-treatable
patient is a violation of my 1st Amendment Right to Free Speech.” Mr. Wideman finally
alleges that Defendants have “illegally confiscated” his medical records, which is a
violation of his Fourth Amendment property rights.
Mr. Wideman’s conclusory allegations that his First and Fourth Amendment
constitutional rights have been violated do not provide a basis for subject matter
jurisdiction. Merely making vague and conclusory allegations that his federal
constitutional rights have been violated does not entitle a pro se pleader to a day in
court, regardless of how liberally the court construes such pleadings. See Ketchum v.
Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992).
"[I]n analyzing the sufficiency of the plaintiff’s complaint, the court need accept as true
only the plaintiff’s well-pleaded factual contentions, not his conclusory allegations." Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Here, Mr. Wideman has not alleged
any facts that would give rise to a legally-cognizable constitutional violation.
Moreover, a claim under § 1983 “requires a plaintiff to show both the existence of
a federally-protected right and the deprivation of that right by a person acting under
color of state law.” Wittner v. Banner Health, 720 F.3d 770, 773 (10th Cir. 2013) (citing
Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982)). Mr. Wideman does not allege
that Defendants are state actors or were acting under color of state law. Nothing in the
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Amended Complaint indicates that Defendants are anything other than private medical
providers that treated Mr. Wideman for his work related injuries.2
In addition, Mr. Wideman’s allegation that FECA, 5 U.S.C. § 8101, confers
jurisdiction over his claims that Defendants failed to provide comprehensive,
continuous, and competent medical care is without merit. The Act requires that the
federal government compensate its employees who are injured on the job, but does not
establish a cause of action against private individuals. See 5 U.S.C. § 8102(a); Boutte
v. Northwestern Medical Facility Foundation, 276 Fed. Appx. 490, 491 (7th Cir. 2008)
(affirming dismissal for lack of subject matter jurisdiction because FECA does not
provide a cause of action against private individuals) (citing Ezekiel v. Michael, 66 F.3d
894, 898-99 (7th Cir. 1995)).
Moreover, Mr. Wideman cannot assert a claim against Defendant under the
Federal Tort Claims Act (FTCA). The Act “was designed primarily to remove the
sovereign immunity of the United States from suits in tort.” Millbrook v. United States,
133 S. Ct. 1441, 1443 (2013) (citing Levin v. United States, 133 S. Ct. 1224, 1228
(2013)). The Act gives federal district courts exclusive jurisdiction over claims against
the United States for “injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission” of a federal employee “acting within the scope

2

Although the Amended Complaint indicates that Mr. Wideman’s constitutional
claims purport to be brought under § 1983, the Court also construes Mr. Wideman’s
allegations as attempting to assert a Bivens claim for violations of the Constitution. Mr.
Wideman cannot proceed pursuant to Bivens, however, because he does not allege
that Defendants were federal agents, acting under color of federal authority, as is
required by Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 397 (1971); see also Correctional Services Corp. v. Malesko, 534 U.S. 61
(2001) (rejecting Bivens claim against private entity acting under color of federal law).
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of his office or employment.” 28 U.S.C. § 1346(b)(1). Thus, FTCA provides a cause of
action against only the United States, and not against private individuals. See 28
U.S.C. § 1346(b)(1); see also Richards v. United States, 369 U.S. 1, 6 (1962).
Moreover, FECA provides the exclusive remedy for federal employees injured at
work. See 5 U.S.C. § 8116(c)1. FECA also bars any FTCA suit by Mr. Wideman to
recover for medical malpractice arising out of his work related injury. See Williams v.
Siverts, No. 05-cv-486-HEA, 2005 WL 1899385 (E.D. Missouri Aug. 9, 2005)
(recognizing that although plaintiff was not suing for the injury he suffered at work, but
for a medical malpractice arising out of the injury, this distinction was without a
difference) (citing Lance v. United States, 70 F.3d 1093, 1095 ( 9th Cir. 1995)). See
also Baker v. Barber, 673 F.2d 147 (6th Cir. 1982) (noting that FECA provides
compensation for work related injuries and that additional injuries caused by intervening
negligent medical treatment also appear to be compensable under FECA); Gold v.
United States, 387 F.2d 378 (3d Cir. 1967) (holding that plaintiff who alleged
malpractice had exclusive remedy under FECA). “Therefore, when Congress gave
federal employees the right to recover for an injury under FECA, it took away their right
to sue the government in tort for medical malpractice arising out of the injury as well as
for the injury itself.” Lance, 70 F.3d at 1095 (citing McCall v. United States, 901 F.2d
548, 550-51 (6th Cir. 1990). Because Mr. Wideman brings this suit for injuries he
suffered as a result of the medical care provided for his work related injuries, FECA is
the exclusive remedy for Mr. Wideman’s claims.
Mr. Wideman has failed to fulfill his burden in establishing the Court’s subject
matter jurisdiction over this case. See Basso, 495 F.2d at 909. As a consequence, this
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Court must dismiss this action. Accordingly, it is
ORDERED that the Complaint and action are DISMISSED WITHOUT
PREJUDICE due to the Court’s lack of subject matter jurisdiction. It is
FURTHER ORDERED that any pending motions are DENIED as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $505.00 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.

Dated: October 31st , 2014 at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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