Davenport v. US Department of the Treasury Bureau of Fiscal Services

Filing 12

MEMORANDUM AND ORDER granting 10 Motion to Dismiss. The case is closed. Signed by District Judge Carlos Murguia on 3/25/15. Mailed to pro se party Aleshea Davenport by regular mail and certifed mail. (Certified Tracking Number: 7002 2030 0000 9348 8626) (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALESHEA DAVENPORT,
Plaintiff,
v.

Case No. 14-2527

UNITED STATES DEPARTMENT OF
TREASURY,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Aleshea Davenport, proceeding pro se and in forma pauperis, brought this claim
against defendant United States Department of Treasury, primarily alleging fraud with respect to her
Social Security benefits. Plaintiff checked approximately fifty boxes under “nature of the suit” on her
civil cover sheet (Doc. 2). The bases for her complaint include 28 U.S.C. § 1983, the Americans with
Disabilities Act, and the Age Discrimination in Employment Act. (Doc. 1 at 3.) Plaintiff appears to be
claiming that the government is improperly withholding her Social Security benefits.1 The matter is
before the court on defendant’s motion to dismiss (Doc. 10), which was filed on January 22, 2015, and
argues this court lacks subject matter jurisdiction over plaintiff’s claims and, alternatively, plaintiff
failed to state a claim upon which relief can be granted. Defendant also requests the court deny
plaintiff the opportunity to amend on the basis of futility. Plaintiff has yet to respond to that motion.
I. Legal Standards
“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

In doing so, she states the government “tried [sic] to kill me you did not succeed you have killed at least 40 people in my
family.” (Doc 1 at 4.)
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When a party challenges the court’s subject matter jurisdiction in a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(1), the party is presenting either a facial or factual attack on
the claims. A facial attack is an attack on the sufficiency of the complaint, where the court accepts
plaintiff’s allegations as true; a factual attack challenges the facts supporting subject matter
jurisdiction, where the court does not presume that the factual allegations are true, but rather must
resolve these facts under Rule 12(b)(1). Holt v. United States, 46 F.3d 1000, 1002–03 (10th Cir.
1995). The court may review affidavits and other documents in order to resolve the jurisdictional
question. Id.
II. Discussion
Although plaintiff alleges jurisdiction under the ADEA and the ADA, plaintiff’s claims of
fraud and battery are torts. It is the Federal Torts Claims Act (“FTCA”) that “provides the exclusive
remedy for tort actions against the federal government, its agencies, and employees.” Wexler v. Merit
Sys. Prot. Bd., No. 92-1194, 1993 WL 53548, at *2 (Feb. 17, 1993) (citing Ascot Dinner Theatre Ltd.
v. Small Bus. Admin., 887 F.2d 1024, 1028 (10th Cir. 1989) (additional citations omitted)). As such,
the proper party to a suit involving FTCA claims is the United States, not the government agency.
Hunt v. United States, No. 01-2462-KHV, 2002 WL 553736, at *1 (D. Kan. Apr. 4, 2002) (citing
Wexler, 1993 WL 53848, at *2). “[F]ailure to name the United States as defendant in an FTCA suit
results in a fatal lack of jurisdiction.” Wexler, 1993 WL 53848, at *2 (citing Allgeier v. United States,
909 F.2d 869, 871 (6th Cir. 1990) (additional citations omitted)). When plaintiff asserts torts claims
against an agency, and not the United States, the court lacks subject matter jurisdiction to hear her tort
claims. Id. (quotation omitted).
Even if plaintiff had properly named the United States in her complaint, this court lacks subject
matter jurisdiction over her torts claims under the FTCA because she failed to exhaust her

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administrative remedies as to those claims. When bringing claims against the United States, the
United States must consent to waive its sovereign immunity before it can be sued. Hunt, 2002 WL
553736 at *1 (citing Nat’l Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240, 1245-46 (10th Cir.
1989)). The FTCA reflects the government’s consent to be sued in certain instances, removing the
sovereign immunity of the United States, which gives district courts exclusive jurisdiction to hear suits
involving tort claims. See 28 U.S.C. §§ 1346(b), 2674; Levin v. United States, __ U.S. __, 133 S. Ct.
1224, 1228 (2013). It imposes liability on the United States “to the same extent as a private
individual” under the law in the place the tort occurred. Id. (quoting 28 U.S.C. § 1346(b)(1)).
There are, however, limitations to the United States’s sovereign immunity. 28 U.S.C. §
2675(a) states:
An action shall not be instituted upon a claim against the United States for money
damages for injury or loss of property or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government while acting within the
scope of his office or employment, unless the claimant shall have first presented the
claim to the appropriate Federal agency and his claim shall have been finally denied by
the agency in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a). Courts cannot waive the jurisdictional prerequisite set forth by Congress in
§ 2675(a). See Kendall v. Watkins, 998 F.2d 848, 852 (10th Cir. 1993) (“[U]nless plaintiff first
presented her claims to the proper federal agency and that agency finally denied them, the district
court would not have had jurisdiction over plaintiff’s FTCA claim.”).
Here, plaintiff has not demonstrated that she exhausted her administrative remedies with
respect to her FTCA claims. Plaintiff bears the burden of demonstrating why the matter should not be
dismissed if the opposing party challenges the court’s jurisdiction. Lorenzen v. United States, 236
F.R.D. 553, 557 (10th Cir. 2006) (citation omitted). At best, plaintiff’s complaint (Doc. 1) and civil
cover sheet (Doc. 2) give conflicting information. Plaintiff indicates she has exhausted her
administrative procedures, but she does not state when or before what agency she presented her

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claim(s). (Doc. 1 at 5.) She also answered “10-16-2014” as the reason she has not presented her claim
to any government agency.2 (Id.) Until plaintiff undergoes a proper agency review of her federal torts
claims, and receives a final agency determination with a right to sue letter indicating to this court that
she has exhausted her administrative remedies, this court lacks subject matter jurisdiction over her
FTCA claims. 28 U.S.C. § 2675(a).
Finally, even if plaintiff had named the United States as the defendant in this case, and even if
she had exhausted her administrative remedies in the manner required by the FTCA, her claims for
fraud, attempted murder, and murder are barred by sovereign immunity. See Vaupel v. United States,
No. 07-CV-01443-PAB-KLM, 2011 WL 2144608, at *2 (D. Colo. May 31, 2011) (noting that fraud is
excepted from the FTCA’s waiver of sovereign immunity, and therefore “the Court does not have
jurisdiction over plaintiff’s fraud claim, and it would be futile to allow amendment of this claim as it is
subject to dismissal for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).”), aff’d,
491 F. App’x 869 (10th Cir. 2012).
Similarly, to the extent plaintiff alleges attempted murder and murder (which the court has
construed as claims of battery), it is well settled that intentional tort claims against the United States
are barred by sovereign immunity. See 28 U.S.C. § 2680(h) (stating that waiver of sovereign immunity
does not extend to claims arising out of assault, battery or other specified intentional tort claims);
Greenlee v. U.S. Postal Serv., 247 F. App’x 953, 955 (10th Cir. 2007) (“As for Greenlee’s allegations
that the Postal Service has intentionally and directly harmed him and his property, his claims fall
outside the FTCA—and the district court’s jurisdiction—because of the FTCA’s intentional tort
exception.”).

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While plaintiff enclosed a charge of discrimination that she purportedly filed with the Equal Employment Opportunity
Commission (Doc. 1 at 9), her claims do not concern employment discrimination. Moreover, to the extent plaintiff alleges
an employment-related claim, she did not exhaust her administrative remedies with the Equal Employment Opportunity
Commission, as she filed this suit a day later.

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To the extent plaintiff asserts a Bivens or constitutional tort claim against the United States, that
claim is also barred by sovereign immunity. See Greenlee v. U.S. Postal Serv., No. 05-2509 JWL,
2006 WL 2460645, at *1 (D. Kan. Aug. 23, 2006) (citing FDIC v. Meyer, 510 U.S. 471, 484–85
(1994).
In sum, the court lacks subject matter jurisdiction over plaintiff’s claims, as plaintiff’s claims
are barred by sovereign immunity and plaintiff failed to exhaust her administrative remedies under the
FTCA. Defendant requests the court dismiss this case without an opportunity to amend because it
would be futile. Generally, if plaintiff requested, this court would grant plaintiff leave to amend her
complaint. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so
requires”). However, the court agrees with defendant that it would be futile for the court to grant such
a request in this case. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Plaintiff’s
complaint lacks basic facts and her civil cover sheet checks nearly fifty boxes as the “nature of the
suit.” Accordingly, the court dismisses this action without the opportunity to amend.
IT IS THEREFORE ORDERED that defendant’s Motion to Dismiss (Doc. 10) is granted.
The case is closed.
Dated this 25th day of March, 2015, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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