Opinion
Civil Action No. 19-cv-00717-LTB-GPG
05-08-2019
EUGENE WIDEMAN JR., Plaintiff, v. UNITED STATES GOVERNMENT, Defendant.
RECOMMENDATION REGARDING COMPLAINT
This matter comes before the Court on the Complaint, ECF No. 1, filed pro se by Plaintiff on March 8, 2019. The matter has been referred to this Magistrate Judge for recommendation ECF No. 7. The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Complaint be dismissed in part for lack of subject matter jurisdiction and in part as legally frivolous.
"ECF No.1" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). The Court uses this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
I. Background
Plaintiff Eugene Wideman Jr. has filed pro se a Complaint, ECF No. 1, pursuant to the Civil Rights Act of 1968, 5 U.S.C. § 8101, and the Federal Tort Claims Act (FTCA). Plaintiff asserts that on November 2, 2018, the Office of Worker's Compensation Programs (OWCP) terminated his medical care and other benefits based on his age and race and in violation of his First and Fourteenth Amendment rights. Plaintiff also asserts that the medical care provided under § 8101 is a right not a benefit and that because the government's behavior has caused him physical and financial issues their negligence is accountable under the FTCA. Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs (Long Form), ECF No. 2, has been granted.
The Court first notes that Plaintiff is not a stranger to this Court. Since 2004, he has filed twelve other cases in this Court.
See Wideman v. United States, No. 16-cv-02262-KMT (D. Colo. Sept, 1, 2017) (Federal Employee's Compensation Act (FECA) claims challenged under FTCA and First, Fourth, and Fourteenth Amendments; dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(1) and (6)); Wideman v. State of Colo., No. 15-cv-01664-RBJ-MJW (D. Colo. May 2, 2016) (claim pursuant to 42 U.S.C. § 1983 for alleged racism by the State of Colorado in a child custody case dismissed with prejudice pursuant to Rule 12(b)(1) and (6); also included inadequate medical treatment by private physician claim but no claim of state involvement), appeal dismissed, No. 16-1222, Doc, No. 01019655695 (10th Cir. July 12, 2016) (dismissed for failure to comply with filing restrictions); Wideman v. Watson, et al., No. 14-cv-02488-LTB (D. Colo. Oct. 31, 2014) (FECA claims challenged under 42 U.S.C. § 1983 and 5 U.S.C. § 8101 based on lack of proper medical treatment dismissed without prejudice for lack of subject matter jurisdiction); Wideman v. State of Colo., et al., No. 09-cv-00095-CMA-KMT (D. Colo. Feb. 25, 2010) (challenged state court order establishing parenting time and providing for child support), aff'd, No. 10-1096, Doc. No. 01018517650 (10th Cir. Sept. 28, 2010) (appeal deemed frivolous and filing restrictions entered refraining Plaintiff from appealing any issues related to state parenting time and child support), petition. for cert. denied, No. 7274 (Mar. 24, 2011); Wideman v. Garcia, No. 06-cv-00966-MSK-MJW (D. Colo. Aug. 28, 2010) (asserted constitutional violations against his daughter's mother regarding parenting time), aff'd, No. 09-1433 (10th Cir. June 14, 2010) (found frivolous and money sanctions granted in part to defendant), petition for cert. denied, No. 6701 (Jan. 10, 2011); Wideman v. State of Colo., No. 08-cv-00764-CMA-KMT (D. Colo. Aug. 25, 2009) (challenging state court order establishing parenting time and providing for child support), aff'd, No. 09-1398 (10th Cir. June 14, 2010), petition for cert. denied, No. 6701 (Jan. 10, 2011); Wideman v. Garcia, et al., No. 06-cv-02363-WDM-MEH (D. Colo. Mar. 19, 2007), (challenged the state court establishing parenting time), aff'd in part, rev'd in part, No. 07-1154 (10th Cir. Oct. 1, 2007) ( remanded to address claim against public charter school for release of school records), petition for cert. denied , No. 07-cv-983 (Apr. 4, 2008), remanded to Wideman v. Cesar Chavez Academy, No. 06-02363-MEH-KMT (D. Colo. Apr. 14, 2008) (case dismissed without prejudice; voluntary withdrawal by Plaintiff); Wideman v. Chao, No. 07-cv-00171-WDM-MEH (D. Colo. Nov. 28, 2007) (case filed pursuant to FTCA alleging wrongful conduct by OWCP in denying claims; case administratively closed and remanded to Dep't of Labor because claims barred by exclusivity provisions of FECA or substantial question of FECA coverage); Wideman v. State of Colo., et al., No. 06-cv-01423-WDM-CBS (D. Colo. Mar. 8, 2007) (challenged a state court paternity case by claiming the state case was heard under the wrong statute and without jurisdiction; dismissed for lack of jurisdiction under Rooker-Feldman), aff'd, No. 07-1152 (10th Cir. Oct. 1, 2007) (affirmed dismissal but remanded to dismiss without prejudice), petition for cert. denied, No. 07-983 (Apr. 4, 2008); Wideman v. Hallmark (Director of the Office of Worker's Compensation), No. 05-cv-00263-ZLW (D. Colo. Apr. 11, 2005) (a complaint regarding the denial of lost wages claim by OWCP; dismissed for failure to comply with the pleading requirements under Fed. R. Civ. P. 8); Wideman v. Garcia, No. 04-cv-01601-PSF (D. Colo. Aug. 13, 2004) (plaintiff filed a notice of removal of a state domestic relations case to this court; defendant filed an objection, which was granted, and the case was remanded to state district court); Wideman v. Fed. Bureau of Prisons, et al., No. 04-cv-00337-PSF-MJW (D. Colo. July 27, 2004) (complaint filed pursuant to 5 U.S.C. §§ 8101 and 2302 seeking compensation for back pay and return of lost annual and sick leave regarding injury incurred in April 2002; dismissed for lack of subject matter jurisdiction (in part worker's compensation claims barred by 5 U.S.C. § 8128(b)(2)).
In at least four of the twelve cases Plaintiff challenges the administration of his FECA claims pursuant to the Federal Tort Claims Act, 5 U.S.C. § 8101, and to 42 U.S.C. § 1983. See Nos. 16-cv-02262-KMT at ECF No. 1; 14-cv-02488-LTB at ECF No.7; 07-cv-00171-WDM-MEH at ECF No. 2; 05-cv-00263-ZLW at ECF No. 7; 04-cv-00337-PSF-MJW at ECF No. 15.
In Case No. 16-cv-02262-KMT, the Court found that even though a claimant of a disability resulting from a work-related injury as defined by FECA is limited to the remedies authorized by FECA, a federal court is not deprived of jurisdiction to review a charge that Secretary of Labor violated the Constitution or a clear statutory mandate or prohibition. Wideman, No. 16-cv-02262-KMT, ECF No. 21 at 7-8. The court in Case No. 16-cv-02262-KMT went on to dismiss any constitutional claims as conclusory and vague. Id. at 8.
In Case No. 14-cv-02488-LTB, the Tenth Circuit affirmed a dismissal of Plaintiff's complaint for lack of subject matter jurisdiction. Wideman, No. 14-1483 at Doc. No. 0101946227. Plaintiff asserted that a treating doctor refused to provide him further treatment because Plaintiff was difficult to treat or untreatable. Id. at 2. Plaintiff contended that the doctor's acts violated his First Amendment right to free speech, his property rights under the Fourth Amendment, and his right under 5 U.S.C. § 8101 to receive "comprehensive, continuous, and competent medical care." Id. The Tenth Circuit found that subject matter jurisdiction was lacking for three reasons: (1) a § 1983 claim requires that a named defendant must act under color of state law, which Plaintiff failed to allege any facts that either of the named defendants was acting under color of federal law or authority; (2) FECA defines the United States' exclusive liability for claims by federal employees for work-related injuries and does not provide for a cause of action in federal court, rather a written claim must be filed with the Secretary of Labor, as provided in 5 U.S.C. § 8121; and (3) Plaintiff's state-law claims do not present a substantial question of federal law. Id. at 5-8.
In Case No. 07-cv-00171-WDM-MEH, Plaintiff set forth an FTCA claim. See Wideman, No. 07-cv-00171-WDM-MEH at ECF No. 2. Plaintiff contended that because the OWCP delayed his claims for seventeen months he was without work, lost his home, had to use his retirement savings, and incurred past-due child support payments. Id., ECF No. 2 at 3. This case was administratively closed subject to reopening upon good cause shown after the Secretary of Labor determined whether Plaintiff's alleged damages and injuries were covered by FECA. Id., ECF No. 25 at 4. This case remains closed.
In Case No. 05-cv-00263-ZLW, Plaintiff challenged the denial of lost wages claim by OWCP. See Wideman, No. 05-cv-00263-ZLW at ECF No. 7. The action was dismissed for failure to comply with the pleading requirements under Fed. R. Civ. P. 8. Id. at 10. Finally, in Case No. 04-cv-00337-PSF-MJW, Plaintiff sought compensation for back pay and return of lost annual and sick leave pursuant to 5 U.S.C. §§ 8101 and 2302 regarding the injury that occurred in April 2002. See Wideman, No. 04-cv-00337-PSF-MJW at ECF Nos. 1 and 15. This case was dismissed in part for lack of subject matter jurisdiction because worker's compensation claims are barred by 5 U.S.C. § 8128(b)(2). Id. at ECF No. 27.
The Court further notes that to the extent Plaintiff raises claims and events in this action that were addressed in his previous cases, the claims and events are repetitive and should be considered only as background information. The only claim addressed in this Recommendation, therefore, is the termination of Plaintiff's medical care and benefits.
II. Legal Standards
The Court must construe the Complaint liberally because Plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (holding allegations in pro se pleadings and other papers to less stringent standards than those drafted by attorneys). If a complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [a court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant's advocate. See id.
A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). A plaintiff's pro se status does not entitle him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
Furthermore, under 28 U.S.C. § 1915(e)(2)(B)(i) the Court must dismiss the action or any claims if the claims are frivolous or malicious. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
It is also the Court's duty to assure itself of its subject matter jurisdiction before proceeding with any case. See Citizens Concerned for Separation of Church & State v. City & County of Denver, 628 F.2d 1289, 1297, 1301 (10th Cir. 1980). Rule 12 of the Federal Rules of Civil Procedure empowers a court to dismiss a complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1) and (h)(3). Dismissal for lack of jurisdiction is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing that federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." See Basso, 495 F.2d at 909; see also McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988) (issue of subject matter may be raised sua sponte by the court at any point in the proceedings). A dismissal based on lack of subject matter jurisdiction is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).
III. Merits of Claims
A. Allegations
As stated above, Plaintiff asserts jurisdiction pursuant to the Civil Rights Act of 1968, 5 U.S.C. § 8101, and the FTCA. Plaintiff's Complaint, overall, is rambling and repetitive of claims he has raised in previous complaints, which were dismissed as set forth above. The Court finds that allowing Plaintiff the opportunity to amend is futile, and, therefore, will proceed to address the merits of this case below.
As pertinent to the relief Plaintiff seeks in this case, the Court finds Plaintiff is challenging the OWCP's termination of his medical care and other benefits. ECF No. 1 at 7. In Claim One, Plaintiff asserts that he has been on federal workers compensation since April 6, 2002, due to an injury he incurred while working at the Federal Bureau of Prisons. Id. at 5. Plaintiff contends that the U.S. Government is trying to force him back to work, even though he is injured, so he will be required to apply for Social Security Disability/Medicare, and the government will no longer have to pay for his expensive medical care and other benefits. Id. at 5. Plaintiff, however, does concede that the government directed him to participate in an earning capacity testing, which he apparently refused to do, and that the government gave his refusal as the reason for terminating his medical care and benefits. Id. at 7.
Plaintiff further contends that in late 2017 he was placed under the care of Dr. Anjum Sharma, who has ignored Plaintiff's complaints regarding problems with his wrist and hands in late 2017. ECF No. 1 at 6. Plaintiff further asserts that on November 1, 2018, he used his own personal insurance and saw a hand and wrist specialist, who confirmed he had Carpal Tunnel Syndrome in both hands, which was part of the original claim when he was injured. Id. at 6-7. Plaintiff also contends that because he has had incompetent medical care he continues to suffer from the injuries he incurred on April 6, 2002, and that Dr. Sharma is conspiring with the government to deny him medical care by not referring Plaintiff to a specialist about his wrist and hands and by claiming Plaintiff is able to stand four to six hours per day by using a standing desk. Id. at 9.
In Claim Two, Plaintiff asserts that he has been subjected to racial discrimination, because on the day his medical care was terminated he spoke with a woman named Stephanie, his claims examiner, who asked Plaintiff "if he was so disabled how could he go shop for groceries." ECF No. 1 at 11. Plaintiff contends that the question is racist because the claim examiner was stereotyping him, an African American, as being lazy and only staying at home all day to watch television and to go shopping. Id. at 10-11. Plaintiff also contends that the government and Dr. Sharma "cook[ed] up this racist scheme" to suggest he attend vocational training, even though he has a Bachelor of Science Degree and Masters of Art. Id. at 12. Also, Dr. Sharma "with racist intent" incorrectly listed his federal job as a correctional officer, which means Dr. Sharma assumed because he is African American he has "limited education" and "limited job experience." Id. at 12.
Finally, in the conclusion portion of the Statement of Claims section of the Complaint, Plaintiff asserts that he has a First Amendment right to bring this action before this Court. ECF No. 1 at 14. He seeks (1) an immediate return to the disabled/unable to work status; (2) an anti-gravity treadmill; (3) a prescription for medical marijuana; (4) to bring Dr. Sharma before this Court to hold him responsible for violating Plaintiff's rights under 5 U.S.C. § 8101; (5) reimbursement for the examination by the hand and wrist specialist; (6) an update of the list of his injuries; and (7) a change of his injury date so the "Venous Embolism and Thrombosis of the Deep Vessel of Lower Extremity, Pulmonary Embolism Infarction" he suffered in 2012 is included as covered. Id. at 14-16. Plaintiff also seeks money damages.
B. Civil Rights Act of 1968
First, the Court finds nothing under the Civil Rights Act of 1968 that would pertain to the claims that Plaintiff is raising in this action. See Civil Rights Act of 1968, United States Code Annotated Popular Name Table for Acts of Congress, Pub.L. 90-284, Apr. 11, 1968, 82 Stat.73.
C. Bivens/Constitutional Claims
Second, Plaintiff's constitutional violation claims more properly are raised pursuant to Bivens. However, the United States Government is not a proper party in a Bivens suit. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 485-86 (1994) (Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit and the federal government has not waived its immunity for Bivens actions). In Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court recognized a damages remedy against a federal official or agent in his or her individual capacity for violation of constitutional rights under color of federal law.
Furthermore, even if a proper federal official or agent were named, "[a] conspiracy requires the combination of two or more persons acting in concert." Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir.2004) (internal quotation marks, alterations, and citations omitted). "In order to plead a conspiracy claim, a plaintiff must allege, either by direct or circumstantial evidence, a meeting of the minds or agreement among the defendants." Id. (internal quotation marks, alterations, and citations omitted). See also Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir.1994) (to state a valid conspiracy claim, a plaintiff is required to "allege specific facts showing agreement and concerted action."). Allegations of parallel conduct, together with conclusory allegations of an agreement, do not state an arguable conspiracy claim. See Shimomura v. Carlson, 17 F.Supp.2d 1120, 1130 (D. Colo. 2014).
Plaintiff's allegations of a conspiracy between Dr. Sharma and the government are conclusory and, therefore, fail to state an arguable claim for relief under Bivens. Plaintiff's claim is only speculative that Dr. Sharma and the government conspired to terminate Plaintiff from the medical care he had received under 5 U.S.C. § 8101 based on racial discrimination. Nonetheless. as stated above, the government is immune from suit in a Bivens action.
As for the alleged racist question by the claims examiner, use of racial epithets are inexcusable and offensive but do not amount to a constitutional violation. Moore v. Morris, 116 F. App'x 203, 205 (10th Cir. 2004). The use of racially discriminatory language can provide some evidence of a discriminatory purpose when that language is coupled with some additional harassment or constitutional violation. The use of a racial epithet by itself is not an actionable violation of the Equal Protection Clause. See King v. City of Eastpointe, et al., 86 F. App'x 790, 814 (6th Cir. 2003) citing Owens v. Johnson, No. 99-2094, 2000 WL 876766, at *2 (6th Cir. June 23, 2000) (unpublished Order) ("The occasional or sporadic use of racial slurs, although unprofessional and reprehensible, does not rise to a level of constitutional magnitude.")
To the extent the claims examiner's question could be construed as racist, or even a racial epithet, the question does not rise to the level of a constitutional violation. Plaintiff's Fourteenth Amendment Claim, therefore, is subject to dismissal in part for lack of subject matter jurisdiction with respect to Defendant United States Government and in part as legally frivolous under 42 U.S.C. § 1915(e)(2)(B)(i) to the extent the claim is construed as filed pursuant to Bivens and asserted against Stephanie, the claims examiner, and Dr. Sharma, who would be found to act under color of federal law.
Furthermore, Plaintiff's conclusory allegation that he has a First Amendment constitutional right to have this case heard by this Court lacks a basis for subject matter jurisdiction. Merely making vague and conclusory allegations that federal constitutional rights have been violated does not entitle a pro se pleader to a day in court, regardless of how liberally the court construes such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991), aff'd, 961 F.2d 916 (10th Cir. 1992). "[I]n analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations." Hall, 935 F.2d at 1110. Here, Plaintiff has not alleged any facts that would give rise to a legally-cognizable constitutional violation.
D. FECA/FTCA
Third, the FTCA "was designed primarily to remove the sovereign immunity of the United States from suits in tort." Millbrook v. United States, 133 S. Ct. 1441, 1443 (2013) (citing Levin v. United States, 133 S. Ct. 1224, 1228 (2013)). The Act gives federal district courts exclusive jurisdiction over claims against the United States for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission" of a federal employee "acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1).
FECA, however, provides the exclusive remedy for federal employees injured at work. See 5 U.S.C. § 8116(c)1. FECA bars any FTCA suit by Plaintiff to recover for medical malpractice arising out of his work-related injury. See Williams v. Siverts, No. 05-cv-486-HEA, 2005 WL 1899385 (E.D. Missouri Aug. 9, 2005) (recognizing that although plaintiff was not suing for the injury he suffered at work, but for a medical malpractice arising out of the injury, this distinction was without a difference) (citing Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995)). See also Baker v. Barber, 673 F.2d 147 (6th Cir. 1982) (noting that FECA provides compensation for work related injuries and that additional injuries caused by intervening negligent medical treatment also appear to be compensable under FECA); Gold v. United States, 387 F.2d 378 (3d Cir. 1967) (holding that plaintiff who alleged malpractice had exclusive remedy under FECA). "Therefore, when Congress gave federal employees the right to recover for an injury under FECA, it took away their right to sue the government in tort for medical malpractice arising out of the injury as well as for the injury itself." Lance, 70 F.3d at 1095 (citing McCall v. United States, 901 F.2d 548, 550-51 (6th Cir. 1990).
Because Plaintiff brings this suit for injuries he suffered as a result of the inadequate medical care provided for his work-related injuries, and subsequent termination of medical care and benefits by OWCP, FECA is the exclusive remedy for Plaintiff's claims.
III. Recommendations
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the Complaint and action be dismissed in part without prejudice for lack of subject matter jurisdiction and in part with prejudice as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
FURTHER RECOMMENDED that Defendant's Motion to Dismiss, ECF No 9, should not be considered at this time because Plaintiff has been granted leave to proceed without payment of fees or costs and an initial review under 28 U.S.C. § 1915 should be concluded prior to service of process and any response by the opposing party.
DATED at Grand Junction, Colorado, this 8th day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge