United States District Court, D. Colorado
RECOMMENDATION REGARDING COMPLAINT
P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on the Complaint, ECF No.
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.
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.
Court first notes that Plaintiff is not a stranger to this
Court. Since 2004, he has filed twelve other cases in this
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. 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.
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.
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
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.
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.
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.
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 ...