Payne v. Attorney General of Massachusetts et al

Filing 9

MEMORANDUM AND ORDER. Plaintiff's complaint is dismissed for failure to state a claim upon which relief may be granted. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 7/3/2012. Mailed to pro se party: Mr. Robert C. Payne, 3590 SW Clare Avenue, Topeka, KS 66611 by certified mail; Certified Tracking Number: 70101060000094210786 and regular mail.(bmw)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
ROBERT C. PAYNE,
Plaintiff,
Vs.

No. 12-4062-SAC

ATTORNEY GENERAL OF
MASSACHUSETTS, et al.,
Defendants.
MEMORANDUM AND ORDER
The pro se plaintiff, Robert C. Payne, filed this civil action against
the attorney generals for the State of Kansas and the State of
Massachusetts, the State of Kansas—the Department of Social and
Rehabilitation Services, and against a Kansas “IVD” agent, Young Williams.
(Dk. 1, pp. 1-2). He alleges diversity jurisdiction1 and jurisdiction under the
False Claims Act alleging that Massachusetts and Kansas have not complied
with 42 U.S.C. § 650, et seq., “Chapt 7 Subpart IV Subsect D of the Social
Security Act” and that he is “suing to recover the money allocated to both
States under the IVD Program on behalf of the U.S. Gov’t and also to receive
. . . [his] allotted 10% of the total from 1994 until today.” (Dk. 1, pp. 3-4).
The only other allegation regarding this non-compliance is the unexplained

On its face, the complaint is lacking complete diversity as the plaintiff is a
resident of Kansas. For that matter, the plaintiff only seeks relief under the
False Claims Act.
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conclusion: “this is black letter federal law that the states are ignoring.”
(Dk. 1, p. 6)
Finding Mr. Payne’s complaint to lack any factual allegations and
to consist only of legal conclusions that would not support an actionable
claim in this court, the Magistrate Judge issued an order requiring Mr. Payne
“to show cause in writing” to this court “why the case should not be
dismissed for failure to state a claim upon which relief can be granted.” (Dk.
5). The court granted Mr. Payne an extension of time to file his response,
but none was filed. (Dk. 8). In not filing a response, the court considers the
plaintiff to have waived not only his right to respond to the show cause order
but his opportunity to suggest possible amendments for his deficient
complaint.
Because the plaintiff is seeking to proceed in forma pauperis, the
court shall review the complaint and may dismiss it if the action fails to state
a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). The
court is to accept as true all well-pleaded facts and is to draw all reasonable
inferences from those facts in favor of the plaintiff. Moore v. Guthrie, 438
F.3d 1036, 1039 (10th Cir. 2006). The court, however, is not under a duty
to accept legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Although pro se filings will be construed liberally, this court “will not
supply additional factual allegations to round out a plaintiff's complaint or
construct a legal theory on a plaintiff's behalf.” Smith v. United States, 561
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F.3d 1090, 1096 (10th Cir. 2009) (internal quotation marks omitted), cert.
denied, 130 S. Ct. 1142 (2010). Dismissal of a complaint is warranted when
the complaint does not contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). To avoid dismissal, a plaintiff must “nudge[ ][his] claims across the
line from conceivable to plausible.” Id. To be facially plausible, the
complaint must contain factual content from which the Court can reasonably
infer that defendants are liable for the misconduct which plaintiff alleges.
Ashcroft v. Iqbal, 556 U.S. at 678.
The plaintiff's complaint names the False Claims Act (“FCA”) as
the sole legal theory for his cause of action. Besides the absence of any
specific factual allegations to support an actionable claim, the complaint fails
to cite any specific provisions of the FCA as allegedly applicable to this
action. The FCA “is to enhance the Government's ability to recover losses
sustained as a result of fraud against the Government.” Ridenour v. KaiserHill Co., L.L.C., 397 F.3d 925, 930 (10th Cir.) (citing S.Rep. No. 99-345, at 1
(1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5266), cert. denied, 546 U.S.
816 (2005). “It empowers a private individual (a relator) to bring a civil
claim on his or her own behalf, and on behalf of the Government, against a
person or company who knowingly presents a false claim to the Government
for payment.” Ridenour v. Kaiser-Hill Co., L.L.C., 397 F.3d at 930 (citing 31
U.S.C. §§ 3729(1), 3730(a) and (b)(1)). The FCA subjects to liability “any
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person who,” commits one of the described acts. The Supreme Court has
concluded that “States are not ‘persons’ for purposes of qui tam liability
under § 3729.” Vermont Agency of Natural Resources v. U.S. ex rel.
Stevens, 529 U.S. 765, 784, 787 (2000). Because the State or its agencies
are not subject to liability under this act, the plaintiff’s complaint has failed
to state a claim upon which relief can be granted against them. As for the
named individual state officers, “a state employee sued for money damages
for actions taken in an official capacity stands in the shoes of the sovereign
and is not a person under the FCA.” U.S. ex rel. Gaudineer & Comito, L.L.P.
v. Iowa, 269 F.3d 932, 936 (8th Cir. 2001), cert. denied, 536 U.S. 925
(2002). The plaintiff’s complaint does not allege with particularity any action
or personal involvement by the state officers to suggest the claims are
brought against the officers in their individual capacities. United States ex
rel. Burlbaw v. Regents of New Mexico State University, 324 F. Supp. 2d
1209, 1216 (D. N.M. 2004), aff’d, 548 F.3d 931 (10th Cir. 2008). Finally,
the plaintiff’s claims are subject to dismissal because pro se plaintiffs
“cannot maintain a FCA action on behalf of the Government.” United States
ex rel. Pedersen v. Hospital Corporation of America, Inc., 2012 WL 718896
at *3 (relying on Stoner v. Santa Clara County Office of Educ., 502 F.3d
1116, 1126-27 (9th Cir. 2007), cert. denied, 552 U.S. 1281 (2008); United
States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008)),
adopted by, 2012 WL 718889 (D. Utah. 2012).
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IT IS THEREFORE ORDERED that the plaintiff’s complaint is
dismissed for failure to state a claim upon which relief may be granted.
Dated this 3rd day of July, 2012, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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