Gibson v. Army Corps of Engineers St. Louis et al

Filing 4

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court shall docket this case as Kerry A. Gibson v. Army Corps of Engineers S t. Louis, OWCP, Second Injury Fund, Gary A. Steinberg, Jo Anne B. Barnhart, Fred Heese, and VARO St. Louis. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. See Fed. R. Civ. P. 12(h)(3).A separate Order of Dismissal shall accompany this Memorandum and Order. 2 Signed by District Judge Henry E. Autrey on 11/25/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KERRY A. GIBSON,
Plaintiff,
v.
ARMY CORPS OF ENGINEERS
ST. LOUIS, et al.,
Defendants.

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No. 4:13CV1676 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for leave to proceed in forma
pauperis [Doc. #2]. Plaintiff’s financial information demonstrates that he is entitled to
proceed without prepayment of the filing fee, and the Court will grant the motion.
Additionally, having reviewed the complaint, the Court finds that subject matter
jurisdiction appears to be lacking.1 As a result, the Court will dismiss this action
without prejudice.2
1

The Court notes that plaintiff filed a substantially similar action in this Court on
July 19, 2013. See Gibson v. Social Security Administration, No. 4:13-CV-1417-HEA
(E.D. Mo.). The action was dismissed on July 31, 2013, for lack of subject matter
jurisdiction. The United States Court of Appeals for the Eighth Circuit affirmed the
judgment on October 3, 2013, pursuant to 8th Cir. R. 47B. Gibson v. Social Security
Administration, No. 13-2940 (8th Cir. 2013).
2

Rule 12(h)(3) of the Federal Rules of Civil Procedure states: “If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.”

28 U.S.C. § 1915(e)
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed
in forma pauperis if the action is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from
such relief. An action is frivolous if it “lacks an arguable basis in either law or fact.”
Neitzke v. Williams, 490 U.S. 319, 328 (1989); Denton v. Hernandez, 504 U.S. 25, 31
(1992). An action is malicious if it is undertaken for the purpose of harassing the named
defendants and not for the purpose of vindicating a cognizable right. Spencer v.
Rhodes, 656 F. Supp. 458, 461-63 (E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
A complaint fails to state a claim if it does not plead “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).
The Complaint
Plaintiff brings this action against the Army Corps of Engineers St. Louis,
OWCP, the Second Injury Fund, Gary A. Steinberg, Jo Anne B. Barnhart, Fred Heese,
and VARO St. Louis. Plaintiff states that he was injured in the line of duty on July 15,
2011, and that he was placed on disability status. He further states that this “is a case
of constructive bad faith insurance handling” and that defendants “fail[ed] or refus[ed]
to write [his] award and make payment.” Beyond that, however, plaintiff’s allegations

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are vague and unclear. He complains, for example, that the “manner in which this
instance [sic] case is handled connotes waste abuse and misuse of government funds,
[and that] it is clear that the government should have awarded and paid the untimely
claims referenced herein.” In addition, plaintiff asks this Court to enjoin defendants
“from discriminating on the basis of familial status against any persons in violation of
[their] protected rights.” He also seeks monetary relief pursuant to 42 U.S.C. § 1983
and a declaration that his Fourth and Fourteenth Amendment rights were violated.
Attached to his complaint, is a document titled “Notice of Disagreement and
Appeals” [Doc. #1, pages 5-8], wherein plaintiff states that he is disagreeing with “the
untimely arbitrary decision of the Army Corps of Engineers and OWCP dated 8/21/2013
to the United States District Court for the Eastern District simultaneously with the
United States Court of Federal Appeals and United States Court for the Federal Circuit.”
The notice, however, clearly states that there are three different types of appeal and that
he may choose only one. None of the choices includes filing an appeal with this Court.
Plaintiff has also attached a copy of a signed, but undated, “Request for Review of
hearing Decision/Order” [Doc. #1-8, page 126], apparently indicating that he is
appealing the denial of an application for social security benefits to the Social Security
Appeals Council.3
3

In Gibson v. Social Security Administration, No. 4:13-CV-1417-HEA (E.D. Mo.)
(Doc. #6, pages 1-2), the Court noted, “[P]laintiff has attached a copy of an adverse
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Discussion
As this Court previously explained in Gibson v. Social Security Administration,
No. 4:13-CV-1417-HEA (E.D. Mo.), the Social Security Act’s requirement that there
be a “final decision” made by the Commissioner after a hearing is a prerequisite which
must be met before a district court has subject matter jurisdiction to review a claim.
Weinberger v. Salfi, 422 U.S. 749, 763-64 (1975). “[A] ‘final decision’ by the SSA is
rendered when the Appeals Council either considers the application on the merits or
declines a claimant’s request for review, and not simply when the ALJ issues its
decision.” Pollard v. Halter, 377 F.3d 183 (2nd Cir. 2004); Garrett ex rel. Moore v.
Barnhart, 366 F.3d 643, 647 (8th Cir. 2004). There is no indication that the Appeals
Council has completed its review of plaintiff’s case, and this Court, therefore, does not
have subject matter jurisdiction over the complaint.
Additionally, under 5 U.S.C. § 8128(b), the decision of the Secretary of Labor
to grant or deny compensation is final and is not subject to review by this Court. As a
result, this Court does not have jurisdiction over any claim for denial of worker’s
benefits. Brumley v. U.S. Dep’t. of Labor, 28 F.3d 746, 747 (8th Cir. 1994).

decision of an administrative law judge denying his application for social security
benefits dated July 11, 2013. The notice clearly states that if plaintiff wants to appeal
from the decision, he must appeal to the Social Security Appeals Council.”
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Plaintiff has not alleged any facts indicating he is attempting to hold defendants
Gary Steinberg (Acting Director, OWCP) and/or Jo Anne Barnhart (Former
Commissioner of Social Security) liable under the Federal Torts Claim Act.
Furthermore, there is no indication that, if he intends to bring such claims, he has
exhausted agency remedies. To bring an action in federal court against the United
States under the Federal Torts Claims Act, 28 U.S.C. § 1346, a plaintiff must first
present his or her claim to the appropriate federal agency pursuant to 28 U.S.C.
§ 2675(a).

Non-compliance with § 2675(a) operates as a jurisdictional bar to

proceeding in federal court. McCoy v. United States, 264 F.3d 792, 795 (8th Cir. 2001)
(“A litigant may not base any part of his tort action against the United States on claims
that were not first presented to the proper administrative agency.”).
Plaintiff’s allegations against defendant Fred Heese (Missouri Office of
Administration) do not state a claim for relief. Plaintiff sues Heese in his official
capacity only, see Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.
1995), and state employees in their official capacities are not “persons” for the purposes
of 42 U.S.C. § 1983. E.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989). Moreover, plaintiff’s claims against Heese are so insubstantial that they fail to
confer jurisdiction on this Court. See Biscanin v. Merrill Lynch & Co., Inc. 407 F.3d
905, 907 (8th Cir. 2005).

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Last, the allegations in the complaint are entirely conclusory and fail to state
facts, which if proved, would entitle plaintiff to relief.
For each of these reasons, the Court finds that subject matter is lacking and will
dismiss this action accordingly.
Therefore,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall docket this case as
Kerry A. Gibson v. Army Corps of Engineers St. Louis, OWCP, Second Injury Fund,
Gary A. Steinberg, Jo Anne B. Barnhart, Fred Heese, and VARO St. Louis.
IT IS FURTHER ORDERED that this action is DISMISSED without
prejudice. See Fed. R. Civ. P. 12(h)(3).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 25th day of November, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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