Opinion
CIV-21-259-SLP
07-09-2021
SHANE JOSIAH KIRK, Plaintiff, v. CITY OF DUNCAN, OK, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Shane Josiah Kirk (Plaintiff), an Oklahoma pretrial detainee being held at the Stephens County jail in Duncan, Oklahoma has filed a pro se complaint against numerous federal, Oklahoma, and Colorado defendants. Doc. 1. In a nutshell, he alleges these Defendants in some way either contributed to him killing or caused him to kill his wife and stepfather on November 29, 2017. Doc. 1. He alleges these defendants were derelict in their duties when he encountered them, either in person or over the phone, in the days just before 1 the killings and their neglect led to the “wrongful death[s]” of his wife and stepfather. Doc. 1, at 13-26.
The Court construes Plaintiff's pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Citations to a court document are to its electronic case filing designation and pagination. Quotations are verbatim unless indicated.
Plaintiff is awaiting trial on two counts of first-degree murder in Stephens County, Oklahoma Case No. CF-2017-369. See https://www.oscn.net/dockets/GetCaseInformation.aspx?db'stephens&numbe r=cf-2017-369 (last visited June 9, 2021). The undersigned takes judicial notice of the docket report in Plaintiff's state criminal proceeding. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand” (citation omitted)).
Plaintiff names the following parties as Defendants:
Claim 1 City of Lawton, OK and FNU LNU Lawton Police Officer;
Claim 2 City of Duncan, OK, Duncan PD Officer-Phone Report (Badge # 217), and FNU LNU Duncan PD Officer-HQ (Badge # Unkn);
Claim 3 Trinidad, CO Police Department, Police Officer (Female Corporal);
Claim 4 Colorado Springs, CO Police Department, FNU LNU Office Phone Answerer (Female);
Claim 5 El Paso County, CO Sheriff's Department, FNU LNU Deputy Phone-Answerer (Male);2
Claim 6 United States Army, Officer in Charge (Circa Nov 2017), Commanding Officer (Emergency Room) (Circa 2017), Case/Treating Provider, Case Treating Nurse;
Claim 7 Duncan Regional Hospital, FNU LNU Treating Provider MD (Deceased), FNU LNU Treating Nurse, FNU LNU Security Guard (Male), FNU LNU Licensed Clinical Social Worker (Female);
Claim 8 Veterans Administration (United States), FNU LNU VA Crisis Line Operator;
Claim 9 Sonic Burger Corporation, FNU LNU Online Complaint Response Official.Doc. 1, at 13-26.
Plaintiff also references this Defendant as “Evans Army Community Hospital.” Doc. 1, at 11.
Plaintiff also references this Defendant as “Fort Carson Provost Marshall, ” “Officer in Charge (Circa Nov. 2017).” Doc. 1, at 11.
Plaintiff asserts this Court has diversity jurisdiction over his case based on his claims against “Multistate Defendants/Federal Government Defendant[s]” and “Wrongful Deaths.” Doc. 1, at 2. He explains that he waited so long to bring his claims because, until June 2020, he was mentally incompetent to fulfill the grievance process, he feared for his physical safety, 3 he was being medicated with an “IQ reducing drug (Resperadol), ” and he was busy trying to convince others to investigate his “allegations” and investigating those allegations for himself. Doc. 1, Ex. 2, at 6. He states he has “spent years securing his safety, mental acuity and exhausting all avenues available for remedy prior to initiating this law suit” by “maintain[ing] a low profile within the jail” and “enacting subterfuge whereby [he] was the epitome of a ‘good inmate.'” Id.
United States District Judge Scott L. Palk referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 4. Following mandatory screening of Plaintiff's complaint, the undersigned recommends the Court dismiss this case without prejudice for lack of subject-matter jurisdiction and venue.
I. Plaintiff's claims.
Plaintiff alleges that around Thanksgiving of 2017, he thought someone from the Viridian Coffee shop in Duncan, Oklahoma was poisoning him. Doc. 1, at 13-14. He called to report the poisoning to the Lawton, Oklahoma and Duncan, Oklahoma police departments (Claims 1 and 2). Id. Plaintiff states 4 the Lawton “duty officer” took his report and told him to go to the hospital and to keep any evidence (Claim 1). Id. at 13. Plaintiff complains the Lawton officer never checked back with Plaintiff after the report and “[the officer's] inaction was the first in a series of the same that left [him] to [his] own fears for 168 hours ultimately ending in the deaths of [his] wife and stepfather and 1stdegree murder charges for [him].” Id. He seeks monetary damages from “Lawton, OK” and the individual officer. Id. at 14.
According to Plaintiff, the Viridian Coffee shop has a location in Lawton and Plaintiff thought he should warn the authorities there about his poisoning. Doc. 1, at 13.
After Plaintiff's call with the Lawton police officer, a Duncan police officer called Plaintiff to follow-up on Plaintiff's poisoning report (Claim 2). The officer told Plaintiff he was aware of Plaintiff's report to the Lawton authorities and he asked Plaintiff “a series of questions.” Id. Plaintiff states the officer never followed up with him even though the next day, which was Thanksgiving, his mother took a bag of coffee grounds to the Duncan police station so they could test it for poison or “illicit drugs, ” such as “cocaine/pcp” (Claim 2). Id. Plaintiff reports that the officer tested it “away from [his mother's] presence” for cocaine and the officer told her it was negative for that drug. Id. Plaintiff complains the officer never followed up with Plaintiff to check on his welfare even though his mother made the officer aware of Plaintiff's veteran status and PTSD diagnosis. Id. at 14-15. Because of the lack of care, Plaintiff thought the police were his “enemy” and were complicit with 5 the people poisoning him. Id. at 15. He alleges the “Duncan, PD directly contributed to the deaths of [his] wife . . . and [his] stepfather. Id. He seeks monetary damages from the “City of Duncan, OK” and two officers. Id. at 16.
Plaintiff states he “fle[d]” Duncan on Thanksgiving Day and made an unplanned stop in Trinidad, Colorado. Id. He spoke with a local police officer in the station parking lot and told her of his fears of being poisoned and asked her to test some coffee he brought with him (Claim 3). Id. The officer agreed but told Plaintiff that she and the other officers were on their way to another call. Plaintiff waited but “his physical constitution devolved” which forced him to leave before the officers returned. Id. at 16-17. Plaintiff complains the officer's inaction contributed to the deaths of his wife and stepfather. Id. at 17. He seeks monetary damages from the Trinidad Police Department and the female officer. Id. at 18.
While driving towards Colorado Springs, Colorado that same day, Plaintiff called the Colorado Springs Police Department and informed an officer that he was fleeing Oklahoma because he was being poisoned and the Duncan, Oklahoma authorities were not helping him (Claim 4). Id. The officer told Plaintiff to go to the hospital and to call back when he reached the hospital. Plaintiff apparently did not go to the hospital or call back the officer as she directed. Id. He complains that even though he spent three days in “their city, ” 6 the “Colorado Springs PD” did not make a “definitive plan” of action or follow up with him. Id. at 18-19. Plaintiff states that it was during this time that his mental capacity diminished and, in his mind, his wife became a “culprit.” Id. at 19. He reports his wife died on November 29, 2017, and the actions of the “Colorado Springs PD” “directly contributed to her death and the death of his stepfather. Id. He seeks monetary damages from “Colorado Springs PD” and the “Office Phone-Answerer (Female).” Id.
That same day, Plaintiff also called the El Paso County, Colorado Sheriff's Department (Claim 5). Id. When a deputy called him back, Plaintiff told him about someone poisoning him and him fleeing from Oklahoma. Id. The deputy told Plaintiff to go to Fort Carson Army Hospital. Plaintiff complains the deputy “fell into inaction and deferred his duty onto other entities.” Id. at 19-20. He blames this inaction for contributing to his delusions which “directly contributed to the deaths” of Plaintiff's wife and stepfather. Id. at 20. Plaintiff seeks monetary damages from the “El Paso County, CO Sheriff” and the “Phone-Answerer (Male) Deputy.” Id.
Plaintiff states that the weekend after Thanksgiving he visited the emergency room at the Evans Army Hospital in Fort Carson, Colorado (Claim 6). Id. He reported he was being poisoned but claims the staff recognized his name due to his past-history at the hospital and the staff “acted in indifferent 7 animosity” by giving him the “minimum required treatment.” Id. at 20-21. Plaintiff complains that because of “their indifferences, medical malpractice and dereliction of duty” they discharged him within a few hours even though they knew he was a “combat-veteran” who was “clearly unstable and sick.” Id. at 21-22. These actions, Plaintiff claims, “directly led to the deaths” of his wife and stepfather. Id. at 22. Plaintiff requests that the Secretary of the Army investigate his 2017 hospital stay, form a commission “to integrate military police/hospital signals of emergency with similar VA systems of emergency, ” and form a commission to study “the creation of Psychotropic Drug Recovery Centers as a legitimate step in the treatment process.” Id.
When Plaintiff returned from Colorado to Duncan on November 29, he took his son to the Duncan Regional Hospital and told the hospital staff that his wife had poisoned his son (Claim 7). Id. at 23. A “treating provider” examined Plaintiff's son and conducted a urinalysis but did not admit him to the hospital. Id. A licensed clinical social worker separately interviewed Plaintiff and his wife about the situation. Id. Plaintiff claims his wife told him that she had just informed “the VA” that he was “in psychosis.” Id. at 24. The social worker recommended Plaintiff admit himself to the hospital but Plaintiff “refused.” Id. He complains that no one at the hospital “contacted local law enforcement or attempted extended action to alleviate the danger to [his] 8 family” and this “directly contributed to the deaths” of his wife and stepfather. Id. Plaintiff seeks monetary damages from “Duncan Regional Hospital, ” a deceased “treating provider, ” a treating nurse, a security guard, and the licensed clinical social worker. Id. at 24-25.
Plaintiff reports that when Plaintiff's wife called the “VA's Veteran Crisis Line” and told the operator that Plaintiff “was in psychosis, ” the operator told her that they could not do anything unless Plaintiff admitted himself to a hospital (Claim 8). Id. at 25. Plaintiff complains the operator should have called local law enforcement to conduct a “wellness check” and this failure “directly contributed” to the deaths of his wife and stepfather. Id. Plaintiff requests the “VA Director” investigate “the true nature of the phone call and any violations of VA directives/SOP's and any correlation to any contribution to the deaths.” Id. He also wants the “VA” and the “U.S. Army” to cooperate on an investigation into the “pros/cons” of psychotropic drug use by veterans. Id. at 25-26.
Finally, Plaintiff complains that “[i]n the days leading up to [his] contact with law enforcement, ” he filed an online complaint with Sonic Burger Corporation that one of its employees in Duncan had poisoned his meal (Claim 9). Id. at 26. No one responded to his complaint and he blames this for his downward spiral. He seeks monetary damages from Sonic Burger Corporation 9 and the online complaint response official for “directly contribut[ing]” to the deaths of his wife and stepfather. Id.
II. Screening.
The Court must screen Plaintiff's complaint and dismiss it, or any part of it, if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A. The Court is also under “a continuing obligation” to examine its jurisdiction. See In re Franklin Sav. Corp., 385 F.3d 1279, 1286 n.6 (10th Cir. 2004). “Jurisdictional issues must be addressed first and, if they are resolved against jurisdiction, the case is at an end.” Id. at 1286.
The Court must also review on screening whether venue is proper “when the defense is obvious from the face of the complaint and no further factual record is required to be developed.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (internal quotation marks omitted). The Court “may dismiss under § 1915 only if it is clear that the plaintiff can allege no set of facts to support . . . venue.” Id. (internal citation and alterations omitted). This Court, “acting on its own motion, may [also] raise the issue of whether a change of venue would be in the interest of justice.” Love's Travel Stops & Country Stores, Inc. v. Oakview Constr., Inc., No. CIV-10-235-D, 2010 WL 4811450, at *6 (W.D. Okla. Nov. 19, 2010). See also Trujillo, 465 F.3d at 1222 (“A court may sua 10 sponte cure jurisdictional and venue defects by transferring a suit under the federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when it is in the interests of justice.”); Pierce v. Shorty Small's of Branson, 137 F.3d 1190, 1191 (10th Cir. 1998) (“[T]he decision of whether to dismiss or transfer [under 28 U.S.C. § 1406(a)] lies within the sound discretion of the district court.”).
III. The Court lacks subject-matter jurisdiction over Plaintiff's tort claims against the federal Defendants.
A. The Court liberally construes Plaintiff's complaint to allege wrongful death and negligence under the Federal Tort Claims Act (FTCA).
Plaintiff sues two federal entities (the Evans Army Hospital and the Veterans Administration) and their employees for their neglect of “duty” which he claims led to the “wrongful death” of his wife and stepfather. Doc. 1, at 2022, 25-26. Plaintiff does not identify the basis for his claims against these Defendants other than to state they are “Government Defendant[s].” Id. at 2. But, unlike state courts, “[f]ederal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). And it is Plaintiff's obligation to establish that the Court's jurisdiction is proper. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“It is to be presumed that a cause lies outside [the federal court's] limited jurisdiction and the burden of establishing the 11 contrary rests upon the party asserting jurisdiction.” (internal citations omitted)).
Federal district courts have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States or where there is diversity of citizenship. See 28 U.S.C. § 1331; 28 U.S.C. § 1332. Plaintiff raises claims sounding in tort against these “Government Defendant[s].” Doc. 1, at 2, 20-22, 25-26. Since the FTCA “provides the exclusive avenue to assert a claim sounding in tort against the United States, ” Franklin, 385 F.3d at 1286, the Court liberally construes Plaintiff's complaint to allege negligence and wrongful death claims under the FTCA. See Brownback v. King, 141 S.Ct. 740, 745 (2021) (“The [FTCA] allows a plaintiff to bring certain state-law tort suits against the Federal Government.”); 28 U.S.C. § 2674 (“The United States shall 12 be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances ....”); see also Ingram v. Faruque, 728 F.3d 1239, 1247-48 (10th Cir. 2013) (holding the “VA Immunity Statute [38 U.S.C. § 7316]” is the exclusive remedy for claims against VA employees and thus claims involving medical care or treatment must proceed under the FTCA).
Plaintiff uses the term “deliberate indifference” in the caption of his claims against the federal Defendants. Doc. 1, at 20, 25. While use of this term generally evokes an alleged constitutional duty, Plaintiff does not identify or even allude to a constitutional violation in the body of his claims or explain how he, as both a non-prisoner and a private citizen at the time of these events, was owed a higher duty of care than any other person seeking aid from these entities. The undersigned thus does not construe the complaint as raising a constitutional issue and will not “assume the role of advocate” to construct a legal theory on Plaintiff's behalf. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (court reviewing pro se complaint does not “assume the role of advocate” (internal quotations and citation omitted)); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (holding court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf”).
1. The Court should dismiss the federal agencies and the individual federal employees as Defendants because the only proper defendant in an FTCA suit is the United States.
The United States can be sued only if it consents. See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”); Block v. North Dakota, 461 U.S. 273, 287 (1983) (“The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress.”). The FTCA “waive[s] the sovereign immunity of the United States for certain torts committed by federal employees acting within the scope of their employment.” Brownback, 141 S.Ct. at 746 (internal quotation marks and citation omitted); see also 28 U.S.C. § 1346(b)(1) (“[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused 13 by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”). But Congress has explicitly provided that the only proper party in an action under the FTCA is the United States, not the agency or its employees. See 28 U.S.C. § 2679(a); see also Smith v. United States, 561 F.3d 1090, 1093 (10th Cir. 2009) (“[A]n FTCA claim can only be brought against the United States.”). Because Plaintiff is trying to raise tort claims against two federal agencies and their employees who were acting in the course of their employment, the United States is the only proper Defendant related to his FTCA claims. See 28 U.S.C. § 1346(b)(1); Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1142 (10th Cir. 1999) (explaining “the FTCA remedy is exclusive” and holding a “federal agency cannot be sued in its own name” (quoting Meyer, 510 U.S. at 476)). The undersigned therefore recommends that the federal agencies and the individual employees be dismissed as Defendants. See, e.g., Hui v. Castaneda, 559 U.S. 799, 801 (2010) (“When federal employees are sued for damages for harms caused in the course of their employment, the 14 [FTCA] generally authorizes substitution of the United States as the defendant.”).
Plaintiff states that he is suing all Defendants in both their individual and official capacities. Doc. 1, at 10. But, as the Court has already explained, “the FTCA remedy is exclusive because the individual [employees] were acting in the scope of their employment as federal employees.” Webb v. Smith, 632 Fed.Appx. 957, 959 (10th Cir. 2015). And Plaintiff makes no argument otherwise. As a result, this Court may apply the FTCA's requirements to Plaintiff's claims against these Defendants. Id.
2. The Court lacks subject-matter jurisdiction over Plaintiff's FTCA claims because Plaintiff has failed to exhaust his administrative remedies.
“The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). See also 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.”). The FTCA's “exhaustion requirement is jurisdictional and cannot be waived.” Lopez v. United States, 823 F.3d 970, 976 (10th Cir. 2016) 15 (internal quotation marks omitted). And this Court may sua sponte address the exhaustion question because it “must consider its own jurisdiction even when it has not been challenged.” Webb, 632 Fed.Appx. at 960.
Plaintiff does not allege that he presented his tort claims to the appropriate federal agencies before filing his claims in this Court. Plaintiff's lack of exhaustion is evident from the face of the complaint. The Court, therefore, lacks jurisdiction over Plaintiff's FTCA claims and they should be dismissed without prejudice. See Webb, 632 Fed.Appx. at 959-60 (holding the district court properly dismissed plaintiff's FTCA claims, sua sponte, because “his failure to exhaust administrative remedies . . . prevent[ed] subject-matter jurisdiction in district court”); Bailey v. United States, 1993 WL 118875, at *1 (10th Cir. 1993) (affirming district court's sua sponte dismissal of FTCA claims for failure to exhaust because it was “clear from the record” that the plaintiff had not pursued administrative relief); see also Lopez, 823 F.3d at 976 (affirming the district court's dismissal of plaintiff's FTCA claims against VA employees for improper exhaustion because his administrative claims “were not sufficient to encompass” the claims he raised in court). 16
The Court's decision to raise sua sponte Plaintiff's failure to exhaust does not present a due process problem because Plaintiff will have the opportunity to present his position by filing an objection to this Report and Recommendation. Cf. Day v. McDonough, 547 U.S. 198, 210 (2006) (“[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.”).
3. The Court lacks subject-matter jurisdiction under the FTCA to provide Plaintiff's requested relief.
Plaintiff does not seek monetary damages from the federal Defendants. Instead, he requests that the Secretary of the Army investigate his 2017 hospital stay, form a commission “to integrate military police/hospital signals of emergency with similar VA systems of emergency, ” and form a commission to study “the creation of Psychotropic Drug Recovery Centers as a legitimate step in the treatment process.” Doc. 1, at 22. He also requests the “VA Director” investigate “the true nature of the phone call and any violations of VA directives/SOP's and any correlation to any contribution to the deaths.” Id. at 25. He also wants the “VA” and the “U.S. Army” to cooperate on an investigation into the “pros/cons” of psychotropic drug use by veterans. Id. at 25-26. The Court lacks jurisdiction to provide Plaintiff the relief he requests.
Federal Courts only have subject-matter jurisdiction over FTCA claims “if they are actionable under [28 U.S.C.] § 1346(b).” Brownback, 141 S.Ct. at 746. For an FTCA claim to be actionable, a plaintiff must allege a claim: (1) “against the United States”; (2) “for money damages”; (3) “for injury or loss to property, or personal injury or death”; (4) “caused by the negligent or wrongful 17 act or omission of any employee of the Government”; (5) “while acting within the scope of his office or employment”; and (6) “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Id. (quoting § 1346(b)).
“In most cases, a plaintiff's failure to state a claim under [Federal] Rule 12(b)(6) does not deprive a federal court of subject-matter jurisdiction.” Id. at 749. But, “in the unique context of the FTCA, all elements of a meritorious claim are also jurisdictional.” Id. “So even though a plaintiff need not prove a § 1346(b)(1) jurisdictional element for a court to maintain subject-matter jurisdiction over his claim, . . . a plaintiff must plausibly allege all six FTCA elements not only to state a claim upon which relief can be granted but also for a court to have subject-matter jurisdiction over the claim.” Id. (emphasis in original).
In short, a plaintiff bringing a claim under the FTCA may sue only the United States and may seek only monetary damages. Plaintiff does neither. This Court lacks subject-matter jurisdiction over his FTCA claims and his requested relief. Brownback, 141 S.Ct. at 749; see Est. of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 863 (10th Cir. 2005) (“[T]he district court lacks subject matter jurisdiction under the FTCA to provide injunctive 18 and declaratory relief.” (citing 28 U.S.C. § 1346(b)). As a result, Plaintiff's FTCA claims should be dismissed without prejudice.
IV. Venue over Plaintiff's claims against the Colorado Defendants is improper in this Court.
“[T]he term ‘venue' refers to the geographic specification of the proper court or courts for the litigation of a civil action ....” 28 U.S.C. § 1390(a). Plaintiff bears the burden of proving this is the proper venue for his action. See, e.g., Pierce, 137 F.3d at 1192.
Plaintiff sues in tort for damages against the Trinidad, Colorado Police Department and a female officer, the Colorado Springs Police Department and a female phone answerer, and the El Paso County Sheriff's Department and a male deputy. Doc. 1, at 16, 18-19. It is apparent from the pleadings, however, that none of these parties reside in this judicial district and none of the events 19 giving rise to Plaintiff's claims against these Defendants occurred in this District.
Plaintiff does not seek damages for any civil rights violations under 42 U.S.C. § 1983 against these Colorado officials. See, e.g., West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”). Even if he did, the general venue statute would still apply. See Anaeme v. Florida, 169 Fed.Appx. 524, 527-28 (10th Cir. 2006) (holding the general venue statute, 28 U.S.C. § 1391(b), governed the plaintiff's claims of constitutional violations made under 42 U.S.C. §§ 1981, 1983, and 1985).
Under the general venue statute, which governs this case, the complaint may be brought only
in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . .; or (3) if there is no district in which an action may otherwise be brought as provided in this section, and judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.28 U.S.C. § 1391(b).
A. Venue does not lie in the Western District of Oklahoma.
Under the general venue statute, venue does not lie in this district. See, e.g., Azubuko v. Irish, 442 Fed.Appx. 374, 376 (10th Cir. 2011) (noting venue is “distinct from jurisdiction” and holding that, even if the district court possessed jurisdiction, the action was properly dismissed for improper venue). First, Plaintiff's own allegations confirm that he is seeking to sue city and county entities in Colorado and officials who work and/or reside in Colorado. Doc. 1, at 10-11. Second, Plaintiff alleges the events giving rise to his claims against these Defendants occurred, not in this district or even in Oklahoma, but in Trinidad and Colorado Springs, Colorado, id. at 10-11, within the territorial 20 boundaries of the District of Colorado. See 28 U.S.C. § 85 (“Colorado constitutes one judicial district.”). Third, there is a district in which the “action may otherwise be brought”-the District of Colorado-and correspondingly, no indication in the record that any of these Defendants are subject to this Court's personal jurisdiction. See, e.g., Mosier v. Farren, 731 Fed.Appx. 808, 811 (10th Cir. 2018) (“[B]ecause venue would be proper in another district, § 1391(b)(3) isn't a potential avenue to venue.”).
Because these Defendants reside in the District of Colorado and the events giving rise to Plaintiff's claims occurred there, venue properly lies in that district rather than this one. See. e.g., Anaeme, 169 Fed.Appx. at 527 (affirming district court's dismissal of the plaintiff's action for improper venue after determining none of the defendants were residents of New Mexico, that none of the alleged acts or incidents had occurred in New Mexico, and that there was another district in which the action may have otherwise been brought); see also Mosier, 731 Fed.Appx. at 811.
B. This case should be dismissed without prejudice rather than transferred to the District of Colorado.
“The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been 21 brought.” 28 U.S.C. § 1406(a). The undersigned recommends dismissing this action without prejudice rather than transferring it to the District of Colorado.
An initial inquiry into the merits of the complaint reveals Plaintiff's Colorado tort claims are subject to dismissal based on the expiration of the two-year statute of limitations. See Colo. Rev. Stat. § 13-80-102 (2014). While Plaintiff may have an excuse under Colorado law for his late filing, the viability of any such argument is not apparent from the complaint. So it would be a waste of judicial resources to transfer an apparently doomed case. Haugh, 210 F.3d at 1150. Accordingly, the undersigned recommends dismissing this case without prejudice to Plaintiff refiling it in the proper judicial district. See 28 U.S.C. § 1406(a).
Cf. Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000) (“[A] court is authorized to consider the consequences of a transfer by taking ‘a peek at the merits' to avoid raising false hopes and wasting judicial resources that would result from transferring a case which is clearly doomed.”).
V. The Court has no jurisdiction over Plaintiff's remaining statelaw claims against non-diverse Defendants.
When a case is properly in federal court, a “district court has supplemental jurisdiction over any claims that are ‘so related' to the jurisdiction invoking claim ‘that they form part of the same case or controversy under Article III.'” Est. of Cummings v. United States, 651 Fed.Appx. 822, 828 22 (10th Cir. 2016) (quoting 28 U.S.C. § 1367(a)). “But when a district court dismisses the federal claims for lack of subject matter jurisdiction, it lacks . . . discretion [to exercise supplemental jurisdiction] and must dismiss the supplemental claims without prejudice.” Id.
Plaintiff's remaining claims seek relief under Oklahoma law against Oklahoma Defendants for negligence and wrongful death. Doc. 1, at 13-16, 2326. Plaintiff raises no federal claims against these Defendants and he admits they all reside in Oklahoma and so are not diverse to him as an Oklahoma resident. Doc. 1, at 10, 12.
When, as here, the Court lacks subject-matter jurisdiction over Plaintiff's federal claims, it lacks pendent jurisdiction to determine a state-law claim. See Est. of Harshman v. Jackson Hole Mountain Resort Corp., 379 F.3d 1161, 1168 (10th Cir. 2004) (“When the district court dismissed the [federal claim] from this cause of action for lack of subject matter jurisdiction, it lost all original jurisdiction on which to append supplemental state law claims, even if they arose from the same common nucleus of fact.”). The undersigned therefore recommends Plaintiff's remaining claims, for which the Court has no independent basis for jurisdiction, be dismissed without prejudice. See Morrison v. Kache, 576 Fed.Appx. 715, 717 (10th Cir. 2014) (affirming district court's dismissal of plaintiff's complaint based on a lack of subject-matter 23 jurisdiction where the plaintiff had failed to exhaust his administrative remedies under the FTCA and there was no independent basis for exercising jurisdiction over plaintiff's claims against the remaining defendants).
VI. Recommendation and notice of right to object.
The undersigned recommends this case be dismissed without prejudice for lack of jurisdiction and improper venue. Plaintiff's pending “Motion for Order” should be denied as moot. Doc. 8.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before July 30, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter. 24