Opinion
Civil Action 23-cv-00613-PAB-NRN
09-20-2023
DOMINIC D. POLETTO, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS (DKT. #18)
N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court pursuant to an Order (Dkt. #19) issued by Chief Judge Philip A. Brimmer referring Defendant United States of America's (“United States” or “Defendant”) Motion to Dismiss (Dkt. #18). Plaintiff Dominic D. Polletto (“Plaintiff”), who proceeds pro se, filed a response (Dkt. #21, with additional exhibits filed at Dkt. ##23-25), and Defendant filed a reply (Dkt. #29). The Court heard argument from the parties on July 13, 2023. (See Dkt. #33.) The Court has taken judicial notice of the docket and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, the Court RECOMMENDS that Defendant's Motion to Dismiss (Dkt. #18) be GRANTED.
Plaintiff's Complaint (Dkt. #1) named Paula Sawyer, Regional Director of Region 27 of the National Labor Relations Board (“NLRB”), and Julia Durkin, a field attorney in Region 27 of the NLRB, as Defendants. Pursuant to the Court's June 6, 2023 Minute Order (Dkt. #20), the United States was substituted as sole Defendant under the Federal Tort Claims Act. See 28 U.S.C. § 2679(d)(1) (“Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.”).
Because Plaintiff proceeds pro se, the Court “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). 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). 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 an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
LEGAL STANDARDS
Defendant seeks dismissal of this lawsuit under Federal Rules of Civil Procedure 12(b)(1) and (b)(6).
Rule 12(b)(1)“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Off. of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994). Statutes conferring subject matter jurisdiction on federal courts are to be strictly construed. F & S Constr. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “[T]he party invoking federal jurisdiction,” generally the plaintiff, “bears the burden of establishing its existence.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998). Rule 12(b)(1) allows Defendant to raise the defense of the Court's “lack of subject-matter jurisdiction” by motion. Fed.R.Civ.P. 12(b)(1).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). A facial attack “questions the sufficiency of the complaint,” and when “reviewing a facial attack . . . a district court must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) abrogated on other grounds by Cent. Green Co. v. United States, 531 U.S. 425, 437 (2001). When reviewing a factual attack, courts cannot “presume the truthfulness of the complaint's factual allegations,” and may consider documents outside the complaint without converting the motion to dismiss into a motion for summary judgment. Ratheal v. United States, No. 20-4099, 2021 WL 3619902, at *3 (10th Cir. Aug. 16, 2021) (unpublished). Here, Defendant makes a factual attack on subject matter jurisdiction, so the Court can consider documents outside of Plaintiff's Complaint.
Rule 12(b)(6)Rule 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) (citations and quotation marks omitted).
“A 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.” Hall, 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 conclusions, 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.
However, the Court need not accept conclusory allegations without supporting factual averments. Southern 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 facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 Fed.Appx. 691, 693 (10th Cir. 2003).
All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination.
The allegations in Plaintiff's Complaint (Dkt. #1) are contained on one page and are so condensed as to be nearly incomprehensible. His claims are based on a February 25, 2021 “Decision to Dismiss” issued by Paula Sawyer, Director of the NLRB, Region 27, regarding a charge Plaintiff, a former United States Postal Service (“USPS”) employee, filed against his union, the National Association of Letter Carriers, Branch 47 (the “Union”). The Decision to Dismiss rejected Plaintiff's charge that the Union improperly processed his grievances. Plaintiff claims that the NLRB acted negligently in investigating and deciding his charge against the Union. Plaintiff seeks over $50 million in damages. It is unclear what NLRB “field attorney” Julia Durkin is alleged to have done.
Defendant's Motion to Dismiss provides additional details. According to the Decision to Dismiss (Dkt. #18-1), the USPS issued an emergency placement and removed Plaintiff from the workplace. The Union filed a grievance on Plaintiff's behalf. While that grievance was proceeding, the USPS issued a notice of removal from employment, which the Union challenged in a separate grievance. A Dispute Resolution Team (“DRT”), made up of both a Union and USPS representative, resolved the second grievance in favor of the USPS and determined that there was just cause for Plaintiff's removal. This rendered the first grievance “essentially moot.” The Decision to Dismiss states that the Union did not act arbitrarily, discriminatorily, or in bad faith in processing the two grievances, and dismissed Plaintiff's unfair-labor-practice charge.
Plaintiff filed an appeal, again alleging that the Union failed to fairly represent him in processing his grievances. (See Dkt. #18-2.) The appeal was denied.
In July 2022, Plaintiff filed a lawsuit in this District, Poletto v. USA, 22-cv-01824-WJM-KLM (D. Colo.), against Ms. Sawyer and Mark E. Arbesfeld, Director of the NLRB's Office of Appeals. The claims Plaintiff asserted are identical to those brought here. See id., Dkt. #1. And, as here, the United States was substituted as the sole defendant. The case was ultimately dismissed when Judge William J. Martinez adopted the report and recommendation of Magistrate Judge Kristen L. Mix. Id., Dkt. #46. Judge Mix found that the discretionary function exception of the Federal Tort Claims Act (“FTCA”) applied to Plaintiff's claims and therefore the Court lacked subject matter to hear the case under Rule 12(b)(1). Id., Dkt. #44. Plaintiff did not object to that recommendation.
ANALYSIS
Defendant argues that Plaintiff's Complaint should be dismissed on the following grounds: (1) the doctrine of res judicata bars Plaintiff's claims; (2) the Court lacks subject-matter jurisdiction over Plaintiff's claims because the FTCA's discretionary-function exception bars them; (3) Plaintiff failed to exhaust his administrative remedies as required by the FTCA; (4) the Court lacks subject-matter jurisdiction over Plaintiff's FTCA claims because they have no private analogue under Colorado law; (5) Plaintiff fails to state a claim for which relief may be granted under Rule 12(b)(6); and (6) to the extent Plaintiff's claims are not FTCA claims, those claims still fail because the prosecutorial decisions of the NLRB's General Counsel are unreviewable and Plaintiff's claims for money damages against the NLRB are barred by sovereign immunity. Because the Court finds that Plaintiff's claims are plainly barred by the doctrine of issue preclusion, it will limit its analysis to this issue.
The Tenth Circuit has, at times, used the phrase “res judicata” to refer generally to both claim and issue preclusion. See Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1139 (10th Cir. 2006); Park Lake Res. Ltd. Liab. Co. v. U.S. Dep't of Agric., 378 F.3d 1132, 1135 (“Res judicata doctrine encompasses two distinct barriers to repeat litigation: claim preclusion and issue preclusion”). Other cases, however, have used the phrase “res judicata” to refer exclusively to claim preclusion, reserving the term “collateral estoppel” for issue preclusion. See, e.g., Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.1 (10th Cir. 1999) (substituting the phrase “claim preclusion” where the parties used the more general “res judicata”). Here, Defendant expressly seeks dismissal based on issue preclusion/collateral estoppel. (See Dkt. #18 at 4.)
Under the doctrine of issue preclusion, “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry, 449 U.S. 90, 94 (1980); see also Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir.2009) (“Collateral estoppel bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim.”). “To invoke issue preclusion, mutuality of parties is not necessary. Instead, this doctrine requires an identity of issues raised in the successive proceedings and the determination of these issue by a valid final judgment to which such determination was essential.'” Blixseth v. Credit Suisse AG, 129 F.Supp.3d 1190, 1202 (D. Colo. 2015) (quoting Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520 (10th Cir.1990)), aff'd sub nom. Blixseth v. Cushman & Wakefield of Colo., Inc., 678 Fed.Appx. 671 (10th Cir. 2017). A party asserting the defense of issue preclusion must establish four elements:
(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.Id. (quoting Moss, 559 F.3d at 1161).
Applying these elements, the Court concludes that the dismissal of Plaintiff's complaint in Poletto v. USA, 22-cv-01824-WJM-KLM (D. Colo.), acts as a bar to this lawsuit.
First, the complaints in both cases allege that the NLRB acted negligently in investigating and deciding Plaintiff's charge against the Union. And the issue raised by Defendant here and in that case is the same: whether the FTCA's discretionary function exception bars Plaintiff's claims. Judge Mix answered “yes,” and her reasoning was adopted in its entirety by Judge Martinez. The first element is met.
Second, Judge Martinez dismissed Plaintiff's complaint in the prior case for lack of subject matter jurisdiction. See id., Dkt. #46. Judge Mix explained in detail why this was appropriate in light of the discretionary function exception to the FTCA's limited waiver of sovereign immunity. See id., Dkt. #44 at 10-15. While jurisdictional dismissals are generally not considered to be “on the merits,” dismissals for lack of jurisdiction “preclude relitigation of the issues determined in ruling on the jurisdiction question.” Park Lake Res., 378 F.3d at 1136 (internal citations and quotation marks omitted); see also Merrill v. Cont. Freighters, Inc., No. 19-cv-02309-CMA-SKC, 2020 WL 4463098, at *6 (D. Colo. Aug. 4, 2020) (“Issue preclusion applies equally to jurisdictional dismissals.”). Thus, issue preclusion “prevents a party from relitigating a jurisdictional question when the party had a full and fair opportunity to litigate the matter in the prior case and the party is reasserting an identical jurisdictional claim.” Cory v. Fahlstrom, 143 Fed.Appx. 84, 87 (10th Cir. 2005) (unpublished) (dismissing certain of the plaintiff's claims against the defendants because the district court had already concluded it did not have subject matter jurisdiction over them). Accordingly, the dismissal has preclusive effect in this litigation.
Third, Plaintiff was obviously a party to both cases.
Finally, Plaintiff had a full and fair opportunity to litigate the applicability of the discretionary function exception in the prior case. Plaintiff had the opportunity to file a response to the United States' motion, which raised the issue. See Poletto, 22-cv-01824-WJM-KLM, Dkt. #24 at 4-9. Indeed, Plaintiff submitted a response as well as several sur-replies (which he did not seek leave to file but were nevertheless considered by Judge Mix). See id., Dkt. ##28, 33, 34. Plaintiff chose not to address the issue, arguing instead that the FTCA did not govern his claims at all. Moreover, Plaintiff had the opportunity to object to Judge Mix's recommendation, which was explicitly based on the FTCA's discretionary function exception. Plaintiff did not file an objection. He is barred from relitigating the question here.
In short, the doctrine of issue preclusion applies and prohibits Plaintiff from proceeding with this lawsuit. The Complaint should be dismissed.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby RECOMMENDED that Defendant's Motion to Dismiss (Dkt. #18) be GRANTED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).