United States District Court, D. Colorado
Kathleen M Tafoya United States Magistrate Judge
matter is before the court on “Defendants' Motion
to Dismiss Pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6)” (Doc. No. 5), to which Plaintiff
filed a Response. (Doc. No. 7.)
proceeding pro se, initiated this lawsuit on
September 7, 2016. (Doc. No. 1 [“Comp.”].) In his
Complaint, Plaintiff explains that he is a former federal
employee who was injured in the performance of his job
duties. (Comp. at 2-3.) He filed claims under the Federal
Employees' Compensation Act (“FECA”) and has
been receiving treatment pursuant to the same for the past 14
years. (Id. at 3.) However, he alleges the medical
care he has received is inadequate and has resulted in
additional injuries. (Id.) By this action, Plaintiff
brings a claim under the Federal Tort Claims Act
(“FTCA”) and constitutional claims under the
First, Fourth, and Fourteenth Amendments based upon the
administration of his FECA claim, as well as based upon the
medical care he received. (Id. at 3-4, 6-7.) Plaintiff
also challenges the Office of Worker's Compensation
Programs' (”OWCP”) garnishment of his FECA
compensation for child support payments. (Id. at
Pro se Plaintiff
is proceeding pro se. The court, therefore,
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see
also Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding
allegations of a pro se complaint “to less stringent
standards than formal pleadings drafted by lawyers”).
However, a pro se litigant's “conclusory
allegations without supporting factual averments are
insufficient to state a claim upon which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (citations omitted). 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) (a 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
Lack of Subject Matter Jurisdiction
12(b)(1) empowers a court to dismiss a complaint for lack of
subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal
under Rule 12(b)(1) 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 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 Amust 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. The dismissal is without prejudice. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384
F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for
lack of jurisdiction should be without prejudice because a
dismissal with prejudice is a disposition on the merits which
a court lacking jurisdiction may not render).
12(b)(1) motion to dismiss Amust be determined from the
allegations of fact in the complaint, without regard to mere
conclusionary allegations of jurisdiction.@ Groundhog v.
Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When
considering a Rule 12(b)(1) motion, however, the Court may
consider matters outside the pleadings without transforming
the motion into one for summary judgment. Holt v. United
States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a
party challenges the facts upon which subject matter
jurisdiction depends, a district court may not presume the
truthfulness of the complaint's Afactual allegations . .
. [and] has wide discretion to allow affidavits, other
documents, and [may even hold] a limited evidentiary hearing
to resolve disputed jurisdictional facts under Rule
Failure to State a Claim Upon Which Relief Can Be
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “The court's function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the
plaintiff's complaint alone is legally sufficient to
state a claim for which relief may be granted.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th
Cir. 2003) (quotation marks omitted).
court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff.”
Bellmon, 935 F.2d at 1198. “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. The
Iqbal evaluation requires two prongs of analysis.
First, the court identifies “the allegations in the
complaint that are not entitled to the assumption of truth,
” that is, those allegations which are legal
conclusion, bare assertions, or merely conclusory.
Id. at 679-81. Second, the Court considers the
factual allegations “to determine if they plausibly
suggest an entitlement to relief.” Id. at 681.
If the allegations state a plausible claim for relief, such
claim survives the motion to dismiss. Id. at 679.
the court need not accept conclusory allegations without
supporting factual averments. S. Disposal, Inc., v. Texas
Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S at 678. Moreover,
“[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does the
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
“Where a complaint pleads ...