Cooper v. United States of America et al

Filing 13

ORDER re 1 & 3 Complaint filed by Jerry R.C. Cooper. For the reasons detailed in this order, the court directs that this action be dismissed. Signed by District Judge Richard D. Rogers on 3/5/15.Mailed to pro se party Jerry R. C. Cooper by regular mail (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JERRY R.C. COOPER
38341
Plaintiff,
v.
Case No. 14-4126-RDR
UNITED STATES OF AMERICA,
CINDY SMITH, HARRY SMITH.
Defendants.

O R D E R
Plaintiff has filed a pro se complaint alleging various causes
of action stemming from his claim that his deceased father, James
W. Cooper, a military veteran, never divorced his first wife, Peggy
R. Cooper, but later entered two other marriages – one in 1946 to
Opal Cooper (which ended in divorce) and one in 1978 to Lola Smith
who predeceased Mr. Cooper.
I.

Plaintiff’s allegations
Plaintiff names the United States of America, Cindy Smith and

Harry Smith as defendants.

Cindy Smith and Harry Smith are alleged

to be step-children from James Cooper’s third marriage.

Plaintiff

asserts that they have illegally obtained government benefits upon
the false premise that James Cooper’s third marriage was a legal
one.
have

Plaintiff further asserts that Cindy Smith and Harry Smith
deprived

the

legal

without due process.

children

of

James

Cooper

of

property

The complaint also claims that in October

2010 defendant Cindy Smith, as an alleged daughter of James W.
Cooper, requested an honor detail to perform at his funeral, and

that

she

was

listed

as

a

daughter

on

his

death

certificate.

Plaintiff has attached as an exhibit a copy of a consent decree
entered in the Kansas State District Court for Labette County,
Kansas on October 22, 2013 wherein Cindy Smith consents that she is
neither the biological child nor the step-child of James Cooper
because Cooper was not legally divorced from Peggy Cooper at the
time of his marriage to Lola Smith.

Plaintiff asserts that the

United States has failed to maintain accurate records to determine
marital

rights

asserts

that

and

the

provision

defendants

have

of

benefits.

deprived

plaintiff

Plaintiff
of

his

also
First

Amendment religious rights.
Plaintiff alleges:

a violation of the Tenth Amendment to the

Constitution; a violation of 1 U.S.C. § 7; a violation of a federal
regulation, 38 C.F.R. § 3.52; and a violation of Kansas common law
prohibiting fraud.

Plaintiff also mentions statutes related to the

adjudication of veterans benefits, such as 38 U.S.C. §§ 103(c) and
5107.

Plaintiff appears to seek a remedy under federal statutes

providing for administrative review, 5 U.S.C. §§ 702, 706; the
Privacy Act, 552a(g)(1)&(4); the Federal Tort Claims Act, 28 U.S.C.
§

2674;

and

42

U.S.C.

§

1983.

Plaintiff

requests

declaratory

relief as to James Cooper’s mental state; a declaration that his
third marriage was void, illegal and bigamous; a correction of
federal records to delete reference to the alleged sham marriages;
a declaration that defendants made false statements which deprived
plaintiff of due process; a declaration that plaintiff’s religious

2

rights have been violated; and damages in excess of $500,000 from
each defendant.
In response to a show cause order from this court, plaintiff
has stated that the United States should be made liable because, in
a

September

1978

administrative

decision

by

the

Veterans

Administration, it recognized as “presumed valid” the 1978 marriage
between James Cooper and Lola Smith.

Plaintiff also asserts that

defendants Cindy and Harry Smith should be liable because they made
statements

to

police

officers,

funeral

directors,

the

Kansas

Department of Health and Environment, and others that they were the
step-children of James Cooper.
II.

Show cause order
Plaintiff, who is confined in a Kansas correctional facility,

has asked for leave to proceed in forma pauperis.

This case is

before the court upon an order to show cause why this case should
not be dismissed.

This order was issued pursuant to this court’s

obligation under 28 U.S.C. § 1915A to review cases filed by inmates
and to dismiss claims which are frivolous or fail to state a claim
or which seek monetary relief from defendants who are immune from
such relief.

Because plaintiff is appearing pro se, we construe

his filings liberally but “our role is not to act as his advocate.”
See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
For the reasons which follow, the court shall order that this
case be dismissed.

3

III. Standards for determining whether a complaint fails to state
a claim
In Khalik v. United Air Lines, 671 F.3d 1188, 1190-92 (10th
Cir.

2012),

the

Tenth

Circuit

reviewed

the

standards

for

determining whether a complaint fails to state a claim:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Recently the Supreme Court clarified this pleading
standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009): to withstand a Rule 12(b)(6) motion to dismiss, a
complaint must contain enough allegations of fact, taken
as true, “to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A
plaintiff must “nudge [his] claims across the line from
conceivable to plausible” in order to survive a motion to
dismiss. Id.
The Court explained two principles underlying the new
standard: (1) when legal conclusions are involved in the
complaint “the tenet that a court must accept as true all
of
the
allegations
contained
in
a
complaint
is
inapplicable to [those] conclusions,” Iqbal, 129 S.Ct. at
1949, and (2) “only a complaint that states a plausible
claim for relief survives a motion to dismiss,” id. at
1950.
Thus, mere “labels and conclusions” and “a
formulaic recitation of the elements of a cause of
action” will not suffice. Twombly, 550 U.S. at 555, 127
S.Ct. 1955. Accordingly, in examining a complaint under
Rule 12(b)(6), we will disregard conclusory statements
and look only to whether the remaining, factual
allegations plausibly suggest the defendant is liable. .
. .

IV. Plaintiff has failed to make allegations which establish that
he has standing to bring this action.
Standing is a legal inquiry which this court may raise sua
sponte.

Rector v. City and County of Denver, 348 F.3d 935, 942

(10th Cir. 2003).

Plaintiff must allege sufficient facts plausibly

4

establishing each element of the standing inquiry.
Flores, 557 U.S. 433, 445 (2009).

See Horne v.

These elements are:

first, an

“injury in fact which is concrete and particularized as well as
actual

or

imminent,

not

conjectural

or

hypothetical;

second,

a

causal connection between the injury and the defendant’s actions;
and third, a likelihood that a favorable judgment will redress the
alleged injury.”

Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154

(10th Cir.2005) (citations omitted).
The

complaint

alleges

that

“all

defendants”

have

deprived

plaintiff “of religious rights secured by the [First] Amendment to
the U.S. Constitution with the erroneous recognition of an invalid,
void and bigamous marriage.”
alleges

that

plaintiff

Doc. No. 1, p. 5.

“has

suffered

an

The complaint also

actual

or

threatened

injury” (id.), and that there was a “deprivation of property.”
at p. 6.
cause

are

Id.

Plaintiff’s claims in his response to the order to show
no

more

specific

in

describing

his

injuries

from

defendants’ alleged misconduct.
These allegations are insufficient to establish a concrete and
particularized injury in fact; they are mere legal conclusions.
This

failure

to

allege

facts

showing

standing

provides

an

independent reason to dismiss all of plaintiff’s claims.
V. Plaintiff’s claims under 42 U.S.C. § 1983 must be dismissed.
In 2012 plaintiff filed an action against Cindy Smith, Harry
Smith and other defendants, including the Department of Veterans
Affairs and the Social Security Administration.

5

See Case No. 12-

1070-JAR.

The case was assigned to Judge Robinson of this court.

Plaintiff alleged many of the same facts as are alleged in the
complaint in this case.

Plaintiff also asserted a cause of action

under 42 U.S.C. § 1983 as he has in this case.

Judge Robinson

dismissed the § 1983 action with prejudice for failure to state a
claim, noting that plaintiff had not alleged facts showing that
Cindy Smith and Harry Smith acted “under color of state law” as is
required for a § 1983 claim.1

Case No. 12-1070, Doc. Nos. 17 & 22.

Under the doctrine of res judicata, this judgment bars any
future claim against the Smith defendants under § 1983 which arises
from the same facts.2 See Strickland v. City of Albuquerque, 130
F.3d 1408, 1411-12 (10th Cir. 1997)(applying res judicata doctrine
to a § 1983 claim which could have been raised in prior state court
action).

“Res judicata requires the satisfaction of four elements:

(1) the prior suit must have ended with a judgment on the merits;
(2) the parties must be identical or in privity; (3) the suit must
be based on the same cause of action; and (4) the plaintiff must
have had a full and fair opportunity to litigate the claim in the
prior suit.”

Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255,

1

Section 1983 provides that:
“Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . .” (emphasis added).
2

This is a matter the court may raise on its own or “sua sponte.” Arizona
v. California, 530 U.S. 392, 412 (2000)(“if a court is on notice that it has
previously decided the issue presented, the court may dismiss the action sua
sponte, even though the defense has not been raised”)(interior quotation omitted).

6

1257 (10th Cir. 1997).

Although, in response to the show cause

order, plaintiff broadly asserts that he did not have a full and
fair opportunity to litigate his § 1983 claim against the Smith
defendants,

he

cites

no

facts

or

reasoning

in

support

of

that

claim.
Even if the doctrine of res judicata did not apply to this
case, the failure of the complaint to allege state action by the
Smith defendants is a fatal flaw to any § 1983 claim against them.
Brokers’ Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d
1125, 1143 (10th Cir. 2014)(§ 1983 does not reach merely private
conduct).
In addition, the United States is not a proper defendant in a
§ 1983 claim.

Section 1983 applies to “persons” acting under the

color of state law.

Neither States nor the United States are

“persons” liable under § 1983.

See Will v. Mich. Dept. of State

Police, 491 U.S. 58, 71 (1989)(states are not “persons”); McLean v.
United States, 566 F.3d 391, 401 (4th Cir. 2009)(United States is
immune from liability under § 1983); Martinez v. Winner, 771 F.2d
424, 441-42 (10th Cir. 1985)(United States has not waived sovereign
immunity

for

constitutional

torts

and

federal

officials

are

generally not liable under § 1983 unless they conspire with state
officers

or

employees).

Therefore,

plaintiff

has

no

cause

of

action against the United States under § 1983.
VI.
Plaintiff’s other alleged statutory or regulatory violations
do not support a cause of action.

7

The law is clear that the United States cannot be sued without
its consent.

U.S. v. Testan, 424 U.S. 392, 399 (1976).
must

be

unequivocally

expressed

Waivers of

sovereign

immunity

within

a

statute.

Fed. Aviation Admin. v. Cooper, 132 S.Ct. 1441, 1448

(2012); Kane County, Utah v. United States, 772 F.3d 1205, 1210
(10th Cir. 2014).

Plaintiff does not cite and the court is unaware

of any unequivocal language waiving the United States’ sovereign
immunity as regards to violations of the following Constitutional
provisions, statutes and regulations cited in the complaint:

the

First Amendment; the Tenth Amendment; 1 U.S.C. § 7;3 38 U.S.C. §§
103(c) and 5107;4 and 38 C.F.R. § 3.52.5
Plaintiff also cites provisions of the Privacy Act, 5 U.S.C. §
552a(g)(1)&(4).
individual

These provisions authorize a civil remedy for an

whose

government

records

have

been

mishandled.

Plaintiff does not allege facts establishing that his government
records are at issue.6
Finally, plaintiff cites provisions from the Administrative
Procedures Act and the Federal Tort Claims Act.

Plaintiff fails,

however, to allege facts demonstrating that he has suffered a legal
wrong which would justify relief under either of these statutes.
3

This statute was determined to be unconstitutional in U.S. v. Windsor, 133 S.Ct.
2675 (2013).
4
These statutes relate to the consideration of claims for veterans benefits.
Section 103 sets out provisions relating to marriages. Section 5107 addresses the
burden of proving a benefits claim.
5
This regulation concerns marriages which are invalid because of a legal
impediment.
6
In addition, without basing the court’s action upon this point, it is unclear at
best whether plaintiff has exhausted his administrative remedies.
This is a
prerequisite to bringing an action under the Privacy Act.
See Williams v.
Department of Veterans Affairs, 510 F.Supp.2d 912, 922 (M.D.Fla. 2007).

8

Furthermore, to the extent that plaintiff is contesting the outcome
of a veterans benefits decision, case law has dictated that this
court has no jurisdiction over such claims even if a remedy under
the APA or the FTCA is requested.

Jones v. United States, 727 F.3d

844, 846-47 (8th Cir. 2013)(no FTCA claim for negligent withholding
of

benefits

because

district

court

does

not

have

jurisdiction

pursuant to the Veterans’ Judicial Review Act of 1988); Van Allen
v.

U.S.

Dept.

of

Veterans

Affairs,

925

F.Supp.2d

119,

125-26

(D.D.C. 2013)(no APA review by district court is available over VA
decisions affecting provision of benefits); Bush v. United States,
2013 WL 5722802 *4-5 (S.D.Ohio 10/21/2013)(no FTCA claim available
in district court for challenge to veterans disability benefits
decision); Lytran v. Department of Treasury, 2006 WL 516754 *2-3
(D.Kan. 2/28/2006)(no APA review available for decisions regarding
veterans benefits); see also Beamon v. Brown, 125 F.3d 965, 967-68
(6th Cir. 1997)(no APA remedy available for plaintiffs challenging
system

for

adjudicating

veterans

benefits

claims

because

an

alternate remedy is provided under the Veterans Judicial Review
Act);

Weaver

v.

1996)(affirming

United

States,

dismissal

of

98

F.3d

challenge

518,
to

519-20

denial

of

(10th

Cir.

veterans

disability benefits for lack of subject matter jurisdiction).
VII.

Plaintiff may not proceed with a claim for fraud.
Plaintiff

establish

a

does

fraud

not

claim

appear

to

allege

facts

against

the

United

States

acting on behalf of the United States.

9

which
or

a

would
person

Even if such facts were

alleged, the FTCA does not provide a waiver of sovereign immunity
for a fraud action.

28 U.S.C. § 2680(h); Wexler v. Merit Systems

Protection Board, 1993 WL 53548 *2 (10th Cir. 2/17/1993).
law

fraud

claim

against

the

individual

defendants

A state

should

be

dismissed upon standing grounds, as explained earlier.
Even if plaintiff sufficiently alleged standing to bring such
a state law claim, when all federal claims are dismissed from a
case and there is no other independent source of federal court
jurisdiction, a federal court usually should decline to exercise
supplemental
Smith

v.

jurisdiction

City

of

Enid,

over
149

the

F.3d

remaining
1151,

1156

state

law

claims.

(10th

Cir.

1998).

Plaintiff does not allege diversity jurisdiction under 28 U.S.C. §
1332.

Nor do the facts alleged in the complaint appear to support

a claim of diversity jurisdiction.

Caterpillar Inc. v. Lewis, 519

U.S. 61, 68 (1996)(in order for diversity jurisdiction to lie, the
citizenship of plaintiff must be diverse from the citizenship of
each defendant).
court

Since there is no independent source of federal

jurisdiction

defendants

and

over

the

plaintiff’s

fraud

claims

claim

under

against

federal

the

law

Smith

must

be

dismissed, the state law fraud claim should also be dismissed.
VIII.

Conclusion
In conclusion, for the reasons detailed in this order, the

court directs that this action be dismissed.

10

IT IS SO ORDERED.
Dated this 5th day of March, 2015, at Topeka, Kansas.

s/RICHARD D. ROGERS
Richard D. Rogers
United States District Judge

11