Opinion
CIVIL ACTION No. 00-2444-CM
August 22, 2001
MEMORANDUM AND ORDER
Plaintiff, who appears pro se, filed the instant lawsuit on October 2, 2000. Plaintiff subsequently filed an amended complaint on January 3, 2001. This matter is before the court on plaintiffs motion to accept his corrected amendment to the complaint (Doc. 21) and defendant's motion to dismiss (Doc. 12). I. Amendment to the Complaint
In his amended complaint, plaintiff appears to allege that his employer, the Department of Housing and Urban Development (HUD), was negligent in failing to comply with certain regulations and HUD handbooks and manuals in investigating his prior claim for employment discrimination. Defendant moved to dismiss plaintiffs amended complaint, arguing that the court lacks subject matter jurisdiction and that plaintiffs claims are barred under the doctrine of res judicata. In response, plaintiff filed a "Corrected Amendment to Comply with Rule 8 and Motion in Opposition to Dismiss." In that pleading, plaintiff asserts that the nature of his lawsuit involves the Rehabilitation Act, 29 U.S.C. § 706, 791-94, and the Fourth Amendment. Defendant then replied, requesting that the court strike the portion of plaintiffs pleading to the extent that he seeks to amend his complaint. Several days later, plaintiff filed a motion seeking the court's permission to accept the corrected amendment as the complaint of record.
Federal Rule of Civil Procedure 15(a) states that a party may amend his pleading once, as a matter of course, at any time prior to the filing of a responsive pleading. Once a responsive pleading has been filed, a party must seek leave of court or permission of the opposing party to amend his complaint. Rule 15(a) also states that leave to amend a pleading "shall be freely given when justice so requires"
In light of plaintiff's pro se status, and in light of Rule 15(a)'s requirement that leave to amend be "freely given," the court construes plaintiffs motion seeking the court's permission to accept the corrected amendment as a motion for leave to amend his complaint and further grants plaintiffs motion. The court will therefore consider plaintiffs new allegations in deciding defendant's motion to dismiss. II. Motion to Dismiss
A. Standards
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957):Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive, Ncitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations,Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff, Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
The court is mindful that plaintiff in this action appears pro se. A pro se litigant's pleadings are to be construed liberally and are held to a less stringent standard than formal pleadings drafted by lawyers.Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Tenth Circuit has stated, "We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiffs failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. The court may not, however, assume the role of advocate for the pro se litigant. Van Deelen v. City of Eudora, 53 F. Supp.2d 1223, 1227 (D. Kan. 1999).
B. Background
In 1998, plaintiff filed two Title VII discrimination cases against HUD, which were ultimately consolidated. In the two cases, plaintiff claimed that HUD, on two separate occasions, failed to promote him on the basis of his race. On March'28, 2000, the court granted summary judgment to defendant, which the Tenth Circuit affirmed. C. Rehabilitation Act
Plaintiff has asserted a claim under the Rehabilitation Act ("the Act"), 29 U.S.C. § 706, 791-94. The Act prohibits, among other things, discrimination on the basis of disability in employment decision "under any program or activity conducted by any Executive agency." 29 U.S.C. § 794(a). Thus, the Act provides a federal employee's exclusive remedy for disability discrimination. Johnson v. United States Postal Serv., 861 F.2d 1475, 1477 (10th Cir. 1988). As best the court can discern, plaintiff, who has diabetes, complains that defendant refused plaintiffs requests between January 1997 and September 1997 for a transfer as a reasonable accommodation to a disabled employee.
Any claims plaintiff asserts under the Act are barred. The Act extends the remedies, procedures, and rights available under Title VII, 42 U.S.C. § 2000e-16, to federal employees with disability discrimination claims. 29 U.S.C. § 794a(a)(1). Under § 2000e-16, exhaustion of administrative remedies is required before a complainant may file in federal court. Brown v. Gen. Servs. Admin., 425 U.S. 820, 828-31 (1976). The requirement of exhaustion of administrative remedies also applies to suits under the Act. Johnson v. Orr, 747 F.2d 1352, 1357 (10th Cir. 1984). Plaintiff attaches to his corrected amended complaint a copy of the EEO Counselor's Report dated February 28, 1997. That report described plaintiff's contacts with the EEO office regarding the circumstances under which he filed his prior two lawsuits. As a basis for alleged discrimination, plaintiff specified the physical handicap of diabetes. Then, in his prior lawsuits, plaintiff initially raised the Act as a basis for a claim but later filed an amended complaint which omitted all claims arising under the Act.
Defendant argues that plaintiff is barred by the doctrine of res judicata from asserting any claims under the Act because plaintiff previously asserted, and then purposefully omitted, any such claims in his prior lawsuits. Defendant also contends that plaintiff is barred from raising any new claims under the Act because he has not raised any such claims before the EEO. Under the doctrine of exhaustion of administrative remedies, if a plaintiff fails to raise a discrimination claim before the EEO, then he is precluded from raising that same claim in district court. Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1993). Thus, plaintiff is precluded from raising any claims in this lawsuit that were not previously raised before the EEO. The court also is mindful that any claims plaintiff did raise to the EEO under the Act were subject to the 90-day filing requirement, meaning that plaintiff would have had to file suit based on any such claims "within 90 days of receipt of the [EEO's] final decision" on the complaint. 29 C.F.R. § 1614.408(a). Considering plaintiff already had filed suit on the EEO complaint in October 1998, 90 days after receipt of the agency's final decision clearly had long since passed when he filed his complaint in the instant action.
In addition to the foregoing reasons, the court finds that the statute of limitations bars plaintiff's claims under the Act. Kansas' two-year limitations period for personal injury actions applies to claims brought under the Act. Baker v. Bd. of Regents. 991 F.2d 628, 633 (10th Cir. 1993). According to plaintiffs corrected amended complaint, any alleged denial by defendant of a reasonable accommodation occurred in 1997, more than two years before plaintiff filed this lawsuit. Therefore, plaintiffs claims brought under the Act are hereby dismissed. Accordingly, plaintiffs allegation that he was denied due process under 29 C.F.R. § 1614 (Federal Sector Equal Employment Opportunity) and 5 C.F.R. § 335 (Promotion and Internal Placement) also is dismissed.
D. Fourth Amendment
Plaintiff also claims that defendant violated his Fourth Amendment rights. While plaintiffs corrected amended complaint is not entirely clear, it appears that plaintiffs Fourth Amendment claim is based upon his allegation that members of defendant's staff conducted an illegal search of his desk, including his personal belongings, in January 1997.
Plaintiffs Fourth Amendment claim is characterized as aBivens cause of action. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971) (holding that a plaintiff can recover money damages for injuries suffered as a result of a federal agent's violation of her Fourth Amendment rights). Defendant argues that plaintiffs claim should be dismissed because, defendant contends, the Supreme Court held in Bush v. Lucas. 462 U.S. 367 (1983), that a Bivens action is not available to federal employees for constitutional violations arising out of an employment relationship when that relationship is governed by comprehensive procedural and substantive provisions. Defendant asserts that, in this case, plaintiff was subject to the Civil Service Reform Act of 1978, which provides remedies to employees regarding employment matters.
Without deciding the merits of defendant's argument, the court holds that plaintiffs Fourth Amended claim is otherwise barred by the statute of limitations. In Kansas, Bivens actions, like 42 U.S.C. § 1983 actions, are subject to a two year statute of limitations. Indus. Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994). In the instant case, plaintiff alleges that his desk and personal belongings were searched in January 1997, yet plaintiff filed his original complaint in this matter in October 2000, more than two years later. Accordingly, plaintiffs Fourth Amendment claim is dismissed.
E. Negligence
Plaintiffs final claim alleges that defendant was negligent in its investigation and in preparing a report on the investigation of plaintiffs prior discrimination claims. Defendant argues that plaintiff is barred from suing for negligence because he failed to exhaust his administrative remedies.
Before a plaintiff may present a claim in court based on negligence against the United States, he must first exhaust his administrative remedies under the Federal Tort Claims Act (FTCA). 28 U.S.C. § 2675. To exhaust his administrative remedies, a plaintiff is required to file an administrative claim with the appropriate federal agency and the claim must have been finally decided by the agency. Id. In this case, plaintiff does not contest that he never filed an administrative claim under the FTCA with the appropriate federal agency, in this case HUD. Moreover, plaintiff is forever barred by the statute of limitations from filing an administrative claim under the FTCA for events which occurred in 1997 and 1998, the time period at issue here. Pursuant to 28 U.S.C. § 2401(b), "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." Since plaintiff failed to file an administrative claim, and is forever barred from doing so, plaintiffs negligence claim is dismissed. IT IS THEREFORE ORDERED that plaintiff's motion to accept his corrected amendment to the complaint (Doc.21) is granted and defendant's motion to dismiss (Doc. 12) is granted. This action is hereby dismissed in its entirety.