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Wideman v. United States Government

United States District Court, D. Colorado

May 8, 2019

EUGENE WIDEMAN JR., Plaintiff,
v.
UNITED STATES GOVERNMENT, Defendant.

          RECOMMENDATION REGARDING COMPLAINT

          GORDON P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the Complaint, ECF No. 1[1], filed pro se by Plaintiff on March 8, 2019. The matter has been referred to this Magistrate Judge for recommendation ECF No. 7.[2] 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.

         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.[3]

         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 ...


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