Kennington v. United States Department of Treasury et al

Filing 28

ORDER and MEMORANDUM DECISION-For the reasons set forth above, the court DISMISSES the complaint pursuant to 28U.S.C. 1915(e)(2)(b)(ii). Signed by Judge Clark Waddoups on 9/9/11. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, NORTHERN DIVISION

TERRY KENNINGTON,

ORDER and
MEMORANDUM DECISION

Plaintiff,
v.
UNITED STATES DEPARTMENT OF
TREASURY, et al.,

Case No. 1:10-cv-184 CW

Defendants.

Now before the court is a report and recommendation by Magistrate Paul Warner
recommending that this case be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(b)(i). The
court agrees that this action should be dismissed. The court, however, does not dismiss this case
because it is frivolous. Instead, the court believes that it is more appropriate to dismiss under 28
U.S.C. § 1915(e)(2)(b)(ii), because the complaint fails to state a claim.
It is not entirely clear what theory Mr. Kennington intends to assert against Defendants
the United States Department of Treasury (the “Department”) and the Secretary of the Treasury
in this suit for compensatory and punitive damages. The two most credible readings of Mr.
Kennington’s complaint are that Mr. Kennington is either suing these Defendants for
discrimination or because the Department’s equal opportunity office did not handle Mr.
Kennington’s discrimination claims in a manner that satisfied him. Either way, Mr. Kennington
has failed to state a claim.

If Mr. Kennington’s suit is for direct discrimination against the Defendants, his complaint
fails to state a claim because liability in a Bivens action cannot be solely based upon respondeat
superior. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Rather, a plaintiff must show
what the government official defendants in particular did to violate the constitution. See id.
Simply put, Mr. Kennington has not plead any facts that would support a plausible Bivens action
against the Defendants here. Rather, Mr. Kennington asserts that he was discriminated against
by employees of the Ogden office of the Internal Revenue Service.
The court further notes that Mr. Kennington did file an action against the IRS and its
employees for discrimination in this district, which he filed separately from this action. See Case
No. 1:10-cv-9 TC. Judge Campbell dismissed that action without prejudice for failure to exhaust
administrative remedies. See Order of Aug. 27, 2010, at Dkt. No. 24 in Case. No. 1:10-cv-9 TC.
The court further takes note of Kennington v. Merit Systems Protection Bd., 385 Fed. Appx. 983
(Fed. Cir. 2010). In that case, Mr. Kennington appealed to the Federal Circuit the Merit Systems
Protection Board’s (“MSPB”) decision that it did not have jurisdiction over his claims of
discrimination based on the same facts involved in this action. See id. at 984. The Federal
Circuit upheld the MSPB’s decision. See id. at 986-987. Based on these two cases, it appears
that Mr. Kennington is in the process of seeking a remedy against the parties he alleges directly
discriminated against him.
As to the second possible reading, Mr. Kennington’s action could be construed as one
against the Department because its equal opportunity office rejected his claims. To the extent
that Mr. Kennington attempts to bring this cause of action, his complaint fails to state a claim.
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Cf. Sheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991) (“[N]o cause of action
against the EEOC exists for challenges to its processing of a claim.”) (internal quotation marks
and citations omitted) and Woodruff v. McPhie, 383 Fed. Appx. 5, 6-7 (D.C. Cir. 2010) (cert.
denied sub nom Woodruff v. Grundmann, 131 S. Ct. 1504 (2011) (no cause of action against the
MSPB for handling of a case).
CONCLUSION AND ORDER
For the reasons set forth above, the court DISMISSES the complaint pursuant to 28
U.S.C. § 1915(e)(2)(b)(ii).
SO ORDERED this 9th day of September, 2011.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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