Willis v. United States Department of Health and Human Services et al

Filing 19

ORDER granting 16 Motion to Dismiss and Plaintiff's case is dismissed in it entirety, as more fully set out. Signed by Honorable David L. Russell on 8/6/14. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KIMBERLY WILLIS,
Plaintiff,
vs.
U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES, et al.,
Defendants.

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Case No. CIV-14-261-R

ORDER
Before the Court is Defendants’ Motion to Dismiss. Doc. No. 16. For the
following reasons, this motion is GRANTED, and Plaintiff’s case is DISMISSED in its
entirety.
Plaintiff Kimberly Willis alleges she was diagnosed with cancer in 2003.1 In
dealing with her cancer, she allegedly chose natural treatment methods as opposed to
conventional medicine. During her fight with cancer from 2003 to the present, Plaintiff
alleges that she has not had health insurance, and she further states that she does not plan
on acquiring any health insurance in the future.
Pursuant to 42 U.S.C. § 1983, Plaintiff has sued the United States Department of
Health and Human Services, the Secretary of the United States Department of Health and
Human Services in her official capacity, the Internal Revenue Service, the Commissioner
of the Internal Revenue Service in his official capacity, the United States Department of
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The Court notes that pro se filings are to be construed liberally. However, this does not relieve Plaintiff “of the
burden of alleging sufficient facts on which a recognized legal claim could be based,” and the Court will not assume
the role of advocate for Plaintiff. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

the Treasury, the Secretary of the United States Department of the Treasury in his official
capacity, and the President of the United States in his official capacity. Plaintiff asserts
that in enacting the mandates contained in the Affordable Care Act (ACA), Defendants
violated the liberty provided to her in the Constitution, as well as “the choices that [she]
make[s] to care for [her] personal Health & Wellness as an Independent and Sovereign
individual.” Doc. No. 1, at 2. Because of this, Plaintiff has requested a permanent
injunction prohibiting Defendants from enforcing any part of the ACA, including its
penalties, against her.
Defendants have moved to dismiss Plaintiff’s case under Fed. R. Civ. P. 12(b)(1)
and (6), arguing: (1) that Plaintiff lacks standing; (2) that the Court lacks jurisdiction
under 42 U.S.C. § 1983; (3) that the Court lacks jurisdiction to enjoin the President from
performing his official duties; and (4) that Plaintiff has failed to state a claim upon which
relief could be granted. The Court agrees with each of these propositions.
Fed. R. Civ. P. 12(b)(1) empowers a court to dismiss a complaint for a lack of
subject matter jurisdiction. The party asserting jurisdiction bears the burden of
establishing its existence. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
Cir. 1974). As Defendants’ motion is clearly a facial attack on jurisdiction, the Court
must accept all allegations contained in Plaintiff’s Complaint as true. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citation omitted).
A party may move to dismiss a complaint for a lack of standing under Fed. R. Civ.
P. 12(b)(1). See Wilderness Soc’y v. Kane Cnty., 632 F.3d 1162, 1167-68 (10th Cir.
2011); Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004). To establish
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standing, a plaintiff must allege an injury that is “concrete, particularized, and actual or
imminent; fairly traceable to the challenged action; and redressable by a favorable
ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (citation
omitted).
The allegations in Plaintiff’s Complaint are altogether deficient with respect to
standing. Absent from Plaintiff’s allegations is anything establishing a concrete,
particularized, and actual or imminent injury, which is fairly traceable to the ACA and
redressable by this Court. Plaintiff does not even allege that she is subject to the ACA, let
alone subject to the ACA’s minimum essential coverage provision that requires the
procurement of insurance or taxes the individual for failing to do so. Plaintiff also fails to
identify either the provisions contained in the ACA that allegedly violate her
constitutional liberties, or the provisions of the Constitution that the ACA violates. It is
thus abundantly clear that Plaintiff has only asserted a generalized grievance about the
government in this case, for which no standing lies. See Baldwin v. Sebelius, 654 F.3d
877, 879 (9th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74
(1992)). Therefore, Plaintiff’s case is DISMISSED.
Plaintiff has also failed to properly invoke the Court’s jurisdiction in this case.
Plaintiff has attempted to invoke the Court’s jurisdiction pursuant to 42 U.S.C. § 1983.
Yet Section 1983 “applies to actions by state and local entities, not to the federal
government.” Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997) (citations
omitted). Further, this section does not apply to federal officers acting under color of
federal law. Campbell v. Amax Coal Co., 610 F.2d 701, 702 (10th Cir. 1979) (citation
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omitted). Therefore, Plaintiff’s attempt at suing three federal agencies and four federal
officers acting in their official capacities under federal law pursuant to Section 1983 is
clearly improper.
Plaintiff’s argument in her response brief only amplifies the futility of her
position. In her response, Plaintiff argues that the federal government is a trustee created
by the people, and trustees are included in the definition of the term “person” under 29
U.S.C. § 152. Plaintiff asserts that this means that “the United States and its
governmental entities are ‘persons’ within the meaning of 42 U.S.C. [§] 1983.” Doc. No.
18, at 4. Notwithstanding the fact that the definitions contained in 29 U.S.C. § 152 do not
apply to 42 U.S.C. § 1983 and instead apply to Subchapter II of Chapter 7 of Title 29 of
the United States Code,2 Plaintiff’s position is in direct conflict with the controlling
precedent previously cited by the Court. It follows that Plaintiff has failed to invoke the
Court’s jurisdiction, and her case is DISMISSED.
Plaintiff has also attempted to sue the President of the United States in his official
capacity, requesting a permanent injunction prohibiting him from enforcing any part of
the ACA against her. Plaintiff’s attempt to do so contravenes an extensive amount of
well-settled law. Specifically, her request for an injunction against the President raises
serious separation of powers concerns. Longstanding legal authority establishes that the
judiciary does not possess the power to issue an injunction against the President or
Congress. See Mississippi v. Johnson, 71 U.S. 475, 500 (1866) (“Neither [the Congress
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The first five words in 29 U.S.C. § 152 are, “When used in this subchapter,” meaning that the definitions found in
this section only apply to the subchapter in which this section is located. Section 1983 is not even located in the
same title as this definitions section, much less the same subchapter.
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nor the President] can be restrained in its action by the judicial department; though the
acts of both, when performed, are, in proper cases, subject to its cognizance.”); see also
Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality opinion) (“[I]n general
‘this court has no jurisdiction of a bill to enjoin the President in the performance of his
official duties.’”)
Once again, Plaintiff’s argument in her response brief only worsens matters.
Rather than paraphrasing her statements, the Court chooses to quote them:
The Defendants state that due to the “separation of powers”, the Court has
no jurisdiction to enjoin the President. See Motion pg 11, ¶1 L2. How
quickly they forget about the “balance of powers” – three separate but
equal branches of government established so that each can counterbalance
the other. (emphasis added).
Furthermore, the government is created by the people. It is the individual
who is sovereign, not the government. The Defendants have the audacity to
state “the Court lacks jurisdiction over Plaintiff’s claim against the
President, and must dismiss her Complaint with respect to him.” See
Motion pg 12, ¶2, L5 (emphasis added). I might remind the Defendants that
respect is not a given, it is earned. How dare they ask the Court to enact
justice out of favoritism. That too is asking the Court to discriminate
against the Plaintiff based on the “title” of the President.
What we have here is another example of the “balance of powers.” The
government is not superior to the people. The government is subject to the
“self-governed.” The created is subject to the creator.
The President, and each of the individuals and entities named in the
Complaint, are subject to the people. The people are the employers and the
defendants are the employees. If it were only myself, a Sovereign
individual, and the President on this planet, the President would answer to
me. The government answers to the “self-governed.”
Doc. No. 18, at 4-5. The Court does not know what to make of these statements, other
than to remark that they border on the illogical. As previously explained, it is well-settled

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that the Court does not have the power to enjoin the President in the performance of his
official duties. Thus, Plaintiff’s Complaint is DISMISSED with respect to the President.
Finally, even if Plaintiff had standing to sue and the Court possessed jurisdiction
over this case, Plaintiff has still failed to state a claim upon which relief could be granted.
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must allege
sufficient facts “‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In considering a motion to dismiss, all well-pleaded factual allegations must be
accepted as true. Dill v. City of Edmond, 155 F.3d 1193, 1201 (10th Cir. 1998) (citation
omitted). And furthermore, those allegations, and all reasonable inferences therefrom,
must be construed in the light most favorable to the non-moving party. Id. at 1203
(citation omitted).
Plaintiff is apparently arguing that the enactment of the ACA violated the
Constitution. But Plaintiff has neither identified the provisions of the Constitution that
were allegedly violated, nor identified which provisions of the ACA that allegedly violate
the Constitution. Even more problematic, the Supreme Court has already considered a
constitutional challenge to the minimum essential coverage provision in the ACA (which
the Court assumes to be the provision Plaintiff is challenging), and the Supreme Court
upheld the provision as constitutional. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132
S.Ct. 2566, 2593-2600 (2012) (NFIB). Plaintiff argues in her response brief that “she has
differentiated her case from NFIB in every way.” Doc. No. 18, at 5. However, after
stating this, Plaintiff does nothing to explain how her case is different from the challenge
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brought in NFIB. Even construing the Complaint’s limited factual allegations in the light
most favorable to Plaintiff, the Court finds that Plaintiff has failed to differentiate her
case from NFIB in any way. Plaintiff’s case is thus foreclosed by Supreme Court
precedent, meaning that she has failed to state a plausible claim upon which relief could
be granted. Therefore, Plaintiff’s case is DISMISSED.
In sum, Plaintiff has failed to establish that she possesses standing to sue in this
case, she has failed to establish that the Court has jurisdiction to hear this case, she has
requested the Court to enjoin the President in the performance of his official duties—
something the Court cannot do, and she has failed to state a plausible claim to relief.
Plaintiff’s filing is frivolous and a waste of judicial resources. Accordingly, Defendants’
Motion to Dismiss is GRANTED, and Plaintiff’s case is DISMISSED in its entirety.
IT IS SO ORDERED this 6th day of August, 2014.

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