Ngiendo v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER granting in part 5 Motion to Dismiss for Failure to State a Claim. IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss Complaint (Doc. 5) is granted in part. Plaintiff's claims subject to the Federal Torts Cl aims Act are remanded to the Shawnee County District Court for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that the court dismisses plaintiff's remaining claims that do not fall under the purview of the Federal Torts Claims Act. IT IS FURTHER ORDERED that leave to amend is denied. IT IS FURTHER ORDERED that leave to re-serve is denied. The case is closed. Signed by District Judge Carlos Murguia on 4/10/2013.Mailed to pro se party Quinn Ngiendo by regular mail. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SOCIAL SECURITY ADMINISTRATION
and MICHAEL ASTRUE,
Case No. 12-CV-4166-CM-JPO
MEMORANDUM AND ORDER
This matter is before the court on Defendants’ Motion to Dismiss Complaint (Doc. 5).
Defendants argue that the court should dismiss the complaint for insufficient service of process, lack
of subject matter jurisdiction, and failure to state a claim for relief. For the reasons set forth below,
the court grants in part defendants’ motion, remands plaintiff’s torts claims to state court, and
dismisses the remaining claims for insufficient service of process and failure to state a claim.
Factual and Procedural Background
Plaintiff asserts claims against the Social Security Administration (“SSA”) and Michael Astrue
arising out of an incident involving herself and SSA employees at the SSA office located in Topeka,
Kansas, in April, 2012. Plaintiff visited the SSA office regarding a business matter involving her
disability benefits. While there, plaintiff asserts that an employee, Ms. Lori Needermeyer, became
hostile towards her. The incident caused a security guard, Mr. Rene Hernandez, to become involved.
Plaintiff contends that Mr. Hernandez shoved her and shut the window in her face. In an attempt to
exit the building, plaintiff states that when she tripped and fell onto the ground, Mr. Hernandez landed
on her back, knelt on her back, and restrained her. An ambulance was called, and plaintiff was taken
to the hospital.
Plaintiff asserts the following claims in her complaint:
1) Aggravated battery in violation of K.S.A. § 21-3414(a)(1)(C);
2) Fear for plaintiff’s personal safety in violation of K.S.A. § 21-3408;
3) Threatened with a deadly weapon in violation of K.S.A. § 21-3410;
4) Cruel and inhuman treatment, torture, illegal confinement and restraint, maiming and
disfigurement, intentional infliction of serious bodily injury, all in violation of 18 U.S.C. §
5) Committing violence against a woman by a man under the “Violence Against Women Act;”
6) Conspiring to interfere with plaintiff’s civil rights, interfering with police duties, obstruction of
justice and intimidation of plaintiff, deprivation of plaintiff’s civil rights, all in violation of 21
U.S.C. §§ 1981, 1983 and 1985; and
7) Abuse of position to deprive plaintiff of her constitutional rights, conspiring with others to
intimidate, threaten and oppress plaintiff, all in violation of 18 U.S.C. §§ 241 and 24.
Plaintiff claims that defendants caused severe back injuries as a result of the incident. She
demands a money judgment against defendants in an amount in excess of $75,000, in addition to
punitive damages, interest, and costs.
Plaintiff originally brought suit in the Third Judicial District of Shawnee County on November
9, 2012. Defendants received notice of the action on December 14, 2012, and removed the matter to
this court on December 21, 2012. Defendants filed this motion to dismiss on January 18, 2013.
Plaintiff has filed what the court will construe as a response to defendants’ motion, requesting also
that the court grant her the ability to file an amended complaint.1 The motion is now ripe for the
Plaintiff improperly purports to add defendants she identifies as Carolyn Colvin, Deputy Commissioner, U.S. of America,
Eric H. Holder, Jr., U.S. Attorney General, Barry R. Grissom, U.S. Attorney, District of Kansas, to the caption as
Courts construe liberally pleadings filed by pro se plaintiffs. Haines v. Kerner, 404 U.S. 519,
520—21 (1972). However, despite the court’s liberal construction, pro se plaintiffs must comply with
the fundamental requirements set forth in the Federal Rules of Civil Procedure. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005).
A. Subject Matter Jurisdiction2
When a party challenges the court’s subject matter jurisdiction in a motion to dismiss pursuant
to Rule 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.
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). A factual attack is a challenge to 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). Id. at 1003. The court is allowed to
review affidavits and other documents in order to resolve the jurisdictional question. Id.
1. Torts Claims
Plaintiff asserts claims against the SSA and its Commissioner for torts committed by
employees of the Topeka, Kansas SSA office where the April 22 altercation took place. 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, *2 (Feb. 17, 1993) (citing Ascot Dinner Theatre Ltd. v. Small Bus. Admin., 887 F.2d 1024,
1028 (10th Cir. 1989) (additional citations omitted)).
defendants. The appropriate manner in which to add parties in a civil case is to file a motion to amend the complaint
pursuant to Fed. R. Civ. P. 15. The court will not construe these additional parties in her response to defendants’ motion
as proper, and will consider only the parties named in the original complaint.
The court must first consider jurisdiction.
a. Proper Defendant
Defendants first argue that this court lacks subject matter jurisdiction because plaintiff failed to
name the United States as the proper party in her complaint, instead of the SSA or Michael Astrue in
his official capacity.3 As stated above, because plaintiff asserts that government agency employees
committed specific torts against her, her torts claims are subject to the FTCA. Id. The proper party to
a suit involving FTCA claims is the United States, not the government agency or employee. Hunt v.
United States, No. 01-2462-KHV, 2002 WL 553736, *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
employee or its respective agency, and not the United States, the court lacks subject matter
jurisdiction to hear her tort claims. Id. (quotation omitted).
b. Failure to Exhaust
Even if plaintiff had properly named the United States in her complaint, defendants argue that
this court lacks subject matter jurisdiction over her torts claims under the FTCA because she failed to
exhaust her 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. See 28
U.S.C. §§ 1346(b), 2674. The FTCA removes the sovereign immunity of the United States, and gives
district courts exclusive jurisdiction to hear suits involving torts claims against federal employees.
Levin v. United States, __ U.S. __, 133 S. Ct. 1224, 1228 (2013). The FTCA imposes liability on the
As of February 14, 2013, Carolyn W. Colvin is the Acting Commissioner of Social Security. Regardless Michael Astrue
was neither present at, or aware of the incident that took place between plaintiff and the staff at the SSA office in Topeka,
Kansas on April, 2012.
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’ sovereign immunity. 28 U.S.C. § 2675(a)
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 lack the power to waive the jurisdictional prerequisite set forth by Congress in 28
U.S.C. § 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”).
Plaintiff failed to demonstrate to this court that she has exhausted her administrative remedies
with respect to her FTCA claims. The party invoking jurisdiction always 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). In
fact, in her response to defendant’s motion to dismiss, she admits that she wants nothing to do with
resolving the matter through the agency, and will do so only under court order. (Doc. 13 at 4, 13.)
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.
Because plaintiff failed to name the United States as the proper defendant in this case, and
because she failed to exhaust her administrative remedies regarding her FTCA claims, this court lacks
subject matter jurisdiction over plaintiff’s FTCA claims. Rather than dismissing plaintiff’s FTCA
claims, this court must remand plaintiff’s FTCA claims to Shawnee County District Court even if
remand would be futile. See 28 U.S.C. § 1447 (“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded”); see also Fent v. Okla.
Water Res. Bd., 235 F.3d 553, 558 (10th Cir. 2000) (quoting Int’l Primate Prot. League v. Adm’r of
Tulane Educ. Fund, 500 U.S. 72, 89 (1991) (finding that the plain language of 28 U.S.C. § 1447(c)
does not allow the court discretion to dismiss claims for lack of subject matter jurisdiction, but rather
requires the court to remand the claims to state court)).
2. Remaining Claims
Plaintiff asserts several other claims in her complaint. This court has federal question
jurisdiction over the remaining federal claims. Additionally, to the extent there are other state law
claims, this court exercises supplemental jurisdiction over those claims as well. See 28 U.S.C. §
1367(a) (“[I]n any civil action of which the district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy. . . .”)
a. Insufficient Service of Process – Remaining Claims
Regardless of whether defendant is the agency or the United States, this court cannot exercise
personal jurisdiction over any party if service on that party was insufficient. Lorenzen, 236 F.R.D. at
557 (citation omitted). It is the plaintiff’s burden to “make a prima facie showing that service
satisfied the statutory requirements and the constitutional requirement of due process.” Id. at 558. If
plaintiff’s showing is insufficient, the court may dismiss the matter without prejudice. Id.
When the defendant to a lawsuit is the United States or one of its agencies, there is a special
procedure that is required for service. Rule 4(i) of the Federal Rules of Civil Procedure sets out the
appropriate method for serving the United States and its agencies.
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United States
attorney for the district where the action is brought—or to an assistant
United States attorney or clerical employee whom the United States
attorney designates in a writing filed with the court clerk—or
send a copy of each by registered or certified mail to the civil-process
clerk at the United States attorney’s office;
(2) Send a copy of each by registered or certified mail to the Attorney General of the
United States at Washington D.C.
Plaintiff first filed the case in Shawnee County District Court. Despite her attempt to serve
summons to the local SSA office in Topeka, Kansas, she failed to serve summons upon the United
States Attorney in Topeka. Additionally, she failed to send a copy of her complaint to the Attorney
General of the United States in Washington D.C. Lacking proof that she did in fact properly serve the
United States, it is appropriate for the court to dismiss the remaining claims of her complaint for
insufficient service of process without prejudice.
B. Failure To State A Claim
The court dismisses plaintiff’s remaining claims for insufficient service of process. However,
the court also determines that her remaining claims should be dismissed under Rule 12(b)(6). Under
Bell Atlantic Corp. v. Twombly, a complaint must include sufficient allegations of fact “to state a
claim to relief that is plausible on its face.” 550 U.S. 544, 570 (2007). The Tenth Circuit explained
this standard further in Ridge at Red Hawk, L.L.C. v. Schneider:
the mere metaphysical possibility that some plaintiff could prove some set of facts in
support of the pleaded claims is insufficient; the complaint must give the court reason
to believe that this plaintiff has a reasonable likelihood of mustering factual support for
493 F.3d 1174, 1177 (10th Cir. 2007). It is plaintiff’s burden to generate a “complaint with enough
factual matter (taken as true) to suggest” that relief can be granted, and that the facts alleged “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. It is not
enough for the court to dismiss a complaint when plaintiff’s claims are “remote and unlikely,” but
rather plaintiff’s claims must not be “so general,” or “encompass a wide swath of conduct,” that
plaintiff simply cannot push her “claims across the line from conceivable to plausible.” Id. at 555,
570. Equally as important, plaintiff’s complaint must allege facts sufficient to give defendants notice
of her claims under Rule 8(a)(2).
Plaintiff fails to plead enough facts to demonstrate the plausibility of her remaining civil rights
claims. For example, she asserts that defendants denied her freedom of speech, however, she does not
specify how her freedom of speech was violated by defendants. Instead, she makes a broad statement
in her complaint that they denied her freedom of speech when defendants maliciously warned her not
to enter any SSA office. (Doc. 1-1 at 5, 7.) Plaintiff fails to demonstrate that this prohibition prevents
her from communicating in any other manner with the SSA for personal claims or inquiries.
Plaintiff also fails to offer any support for the litany of other acts or offenses she accuses
defendants of committing in violation of her civil rights. She claims that the defendants conspired
together to violate her rights, to abuse its position, to interfere with the performance of police duties,
and to obstruct justice. Plaintiff has not provided the court with enough facts to support the
plausibility of her remaining claims in order to demonstrate that she is entitled to relief. Twombly,
550 U.S. at 570. Accordingly, her remaining claims are also subject to dismissal under Rule 12(b)(6).
C. Leave to Amend/Correct Remaining Claims
Plaintiff asks this court to allow her to amend her complaint to add the United States as a
defendant to this lawsuit, and additionally, for a chance to properly serve the defendant(s). Generally
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, here it would be futile for the court to
grant such a request. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Her opposition is
a 15-page, single-spaced diatribe of allegations against defendants. Even assuming all of these
allegations appeared in her complaint, she still fails to state a plausible claim over which this court
would have jurisdiction.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Complaint (Doc. 5) is
granted in part. Plaintiff’s claims subject to the Federal Torts Claims Act are remanded to the
Shawnee County District Court for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that the court dismisses plaintiff’s remaining claims that do
not fall under the purview of the Federal Torts Claims Act.
IT IS FURTHER ORDERED that leave to amend is denied.
IT IS FURTHER ORDERED that leave to re-serve is denied.
The case is closed.
Dated this 10th day of April, 2013, at Kansas City, Kansas.
s/ Carlos Murguia
United States District Judge
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