F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 2 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
RUTHERFORD ROGERS,
Plaintiff - Appellant,
v. No. 03-1337
(D. Ct. No. 02-RB-1491 (MJW))
FEDERAL BUREAU OF PRISONS; (D. Colo.)
UNITED STATES PAROLE
COMMISSION,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.
At the request of both parties, the appeal is submitted without oral
argument. See Fed. R. App. P. 34(a)(1); 10th Cir. R. 34.1(G). Plaintiff-Appellant
Rutherford Rogers brought several tort claims against Defendants-Appellants
(Defendants) after he was found ineligible for parole. He seeks to recover $4500
in costs spent on his parole hearing. On appeal, Mr. Rogers challenges the
District Court’s order granting the Defendants’ motion to dismiss under Federal
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Rules of Civil Procedure 12(b)(1) and 12(b)(6) and its refusal to appoint counsel.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
Although the complaint is somewhat unclear, Mr. Rogers apparently asserts
the following facts. In July 1999, he received a parole-application form, notifying
him of the next United States Parole Commission hearing. He submitted the
application and then paid a parole representative $4500 to represent him at the
November 1999 hearing. In January 2000, the Parole Commission issued a notice
of a parole action with a presumptive parole date. In March 2001, however, the
Bureau of Prisons issued another parole action, voiding the hearing and the
January 2000 notice of action because it found Mr. Rogers ineligible for parole.
Mr. Rogers filed an administrative tort claim with the Federal Bureau of
Prisons, which issued a final denial of his tort action in February 2002. In August
2002, Mr. Rogers filed a pro se complaint in the Federal District Court for the
District of Colorado, alleging that the Parole Commission and the Federal Bureau
of Prisons violated his rights under the Eighth and Fourteenth Amendments to the
Federal Constitution by depriving him of property in the form of the fees paid to
his parole representative.
The District Court referred the matter to a magistrate judge, who
recommended, in January 2003, that the District Court grant the Defendants’
-2-
motion to dismiss for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1),
and for failure to state a claim, Fed. R. Civ. P. 12(b)(6). In May 2003, the
District Court approved and adopted the magistrate’s recommendation, granting
the Defendants’ motion to dismiss the complaint in its entirety. In its order, the
District Court stated that Mr. Rogers had not filed objections to the magistrate
judge’s recommendation when he had, in fact, filed them. Subsequently, Mr.
Rogers filed both a Fed. R. Civ. P. 60(b) motion for relief from the judgment and
a notice of appeal to this court.
In an order dated October 21, 2003, we issued a limited remand so the
District Court could consider the Rule 60(b) motion. We further noted our
intention to remand the entire matter if the District Court decided to grant the
Rule 60(b) motion for the limited purpose of considering Mr. Rogers’s objections
to the magistrate judge’s recommendation.
In February 2004, the District Court issued an order denying the motion and
clarifying that it had considered Mr. Rogers’s objections in conducting its
previous de novo review of the merits. On appeal, Mr. Rogers asserts that his
objections sufficiently allege jurisdiction and state a claim upon which relief can
be granted and appeals the District Court’s refusal to appoint him counsel.
II. STANDARD OF REVIEW
The Defendants moved to dismiss Mr. Rogers’s complaint under Federal
-3-
Rules of Civil Procedure 12(b)(1) and 12(b)(6). The magistrate judge’s
recommendation discusses both rules, so we presume the District Court relied on
both of them in granting the Defendants’ motion to dismiss.
“Rule 12(b)(1) motions generally take one of two forms.” Stuart v.
Colorado Interstate Gas Co. , 271 F.3d 1221, 1225 (10th Cir. 2001). “The moving
party may (1) facially attack the complaint’s allegations as to the existence of
subject matter jurisdiction, or (2) go beyond allegations contained in the
complaint by presenting evidence to challenge the factual basis upon which
subject matter jurisdiction rests.” Maestas v. Lujan , 351 F.3d 1001, 1013 (10th
Cir. 2003). We review a district court’s Rule 12(b)(1) dismissal for lack of
subject matter jurisdiction de novo and “review findings of jurisdictional facts, if
any, for clear error.” Id. We also review a district court’s dismissal under Rule
12(b)(6) de novo. Colorado Envtl. Coalition v. Wenker , 353 F.3d 1221, 1227
(10th Cir. 2004). Finally, in deciding whether to appoint counsel for an indigent
litigant under 28 U.S.C. § 1915(e)(1), a district court has broad discretion. We
will not reverse its decision unless the denial “would result in fundamental
unfairness impinging on due process rights.” Long v. Shillinger , 927 F.2d 525,
527 (10th Cir. 1991) (quotation omitted).
Because Mr. Rogers appears pro se, in determining whether his pleadings
establish jurisdiction and state a recognized legal claim, we construe his pleadings
-4-
liberally and hold them “to a less stringent standard than formal pleadings drafted
by lawyers.” Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). “[T]his rule
means that if a court can reasonably read the pleadings to state a valid claim on
which the plaintiff could prevail, it 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.” Id.
III. DISCUSSION
A. Underlying Treatment of Mr. Rogers’s Objections
We need not discuss the magistrate judge’s reasoning or conclusions in
detail because Mr. Rogers does not challenge the District Court’s decision to
dismiss the case on any of the grounds discussed in the magistrate judge’s
recommendation. Instead, he argues the District Court failed to construe his
pleadings liberally. He alleges that, under a liberal reading of his pleadings, his
factual allegations support claims for relief under the Privacy Act, 5 U.S.C. §
552a, and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80.
Mr. Rogers developed both of these legal theories initially in his objections
to the magistrate judge’s recommendation. Although theories raised for the first
time in these objections are deemed waived, United States v. Garfinkle , 261 F.3d
1030, 1031 (10th Cir. 2001), the District Court on remand said it considered Mr.
Rogers’s objections in reviewing the recommendation to grant the Defendants’
-5-
motion to dismiss. We need not decide whether the District Court’s consideration
of Mr. Rogers’s claims operates as an exception to our waiver rule because, even
if it does, his claims fail on the merits.
B. Privacy Act
Mr. Rogers argues that the Defendants violated provisions in the Privacy
Act that require federal agencies to maintain accurate individual records. See 5
U.S.C. §§ 552a(e)(5), (g)(1)(C), (g)(4). Under the Act, an individual may sue a
federal agency for damages “if the agency willfully or intentionally violates” the
provision granting a private right of action for failure to maintain individual
records in the appropriate manner. 1
Id. §§ 552a(g)(1)(C), (g)(4). In order to
establish a claim for damages under these provisions, Mr. Rogers must show:
(1) he has been aggrieved by an adverse determination; (2) the
agency failed to maintain his records with the degree of accuracy
necessary to assure fairness in the determination; (3) the agency’s
reliance on the inaccurate records was the proximate cause of the
adverse determination; and (4) the agency acted intentionally or
willfully in failing to maintain accurate records. Gowan v. United
States Dep’t of Air Force , 148 F.3d 1182, 1192 (10th Cir. 1998)
(alterations and quotations omitted).
1
Section 552a(g)(1)(C) creates a private right of action and states, in part:
“Whenever any agency . . . fails to maintain any record concerning any individual
with such accuracy, relevance, timeliness, and completeness as is necessary to
assure fairness in any determination relating to the qualifications, character,
rights, or opportunities of, or benefits to the individual that may be made on the
basis of such record, and consequently a determination is made which is adverse
to the individual . . . the individual may bring a civil action against the agency . . .
.”
-6-
In asserting a Privacy Act claim, Mr. Rogers alleges that the Defendants
willfully or intentionally maintained inaccurate records of his sentence. Because
of this failure, he was placed on the Parole Commission’s hearing docket and
paid a parole representative $4500 even though his sentence was ineligible for
parole.
Even under the most liberal reading of Mr. Rogers’s factual allegations, we
conclude that he has failed to state a claim under the Privacy Act. Mr. Rogers has
clearly not alleged any “adverse determination” caused by the Defendants’ alleged
failure to maintain accurate records. The decision issued by the Bureau of
Prisons, concluding he is ineligible for parole, may be an “adverse
determination,” see Deters v. United States Parole Comm’n , 85 F.3d 655, 659
(D.C. Cir. 1996), but inaccurate record keeping did not cause this
determination—his legal ineligibility did. Under the most liberal reading of his
pleadings, Mr. Rogers has therefore failed to state a Privacy Act claim.
C. Federal Tort Claims Act
Based on the same facts, Mr. Rogers also attempts to sue the Defendants
for negligence under the FTCA. But, as the magistrate judge’s recommendation
recognizes, Mr. Rogers’s complaint suffers from two jurisdictional problems.
First, the complaint contains only constitutional claims, which are not cognizable
-7-
under the Act’s jurisdictional provision, 28 U.S.C. § 1346(b). 2
Federal Deposit
Ins. Corp. v. Meyer , 510 U.S. 471, 477-78 (1994) (holding that a “constitutional
tort claim is not ‘cognizable’ under § 1346(b) because it is not actionable under §
1346(b)”). Second, Mr. Rogers sued federal agencies, rather than the United
States itself, which is the only proper defendant under § 1346(b)(1). Oxendine v.
Kaplan , 241 F.3d 1272, 1275 n.4 (10th Cir. 2001) (“The United States is the only
proper defendant in an FTCA action.”).
In his objections to the magistrate judge’s recommendation, Mr. Rogers
attempts to characterize his FTCA claim as one for negligence rather than
constitutional violations. But even if we read his complaint to allege facts in
support of a negligence action, Mr. Rogers fails to state an actionable claim. His
apparent theory of negligence, although not fully developed, comes closest to
negligent misrepresentation. He seems to suggest that the Defendants, in
providing a parole application and hearing, breached a duty of care to provide
accurate information regarding his eligibility for parole. And, in hiring a parole
representative, he relied upon this false information to his financial detriment.
See Keller v. A.O. Smith Harvestore Prods., Inc. , 819 P.2d 69, 71 & n.2 (Colo.
2
Section 1346(b) limits the federal government’s liability to torts
committed by its employees “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.”
-8-
1991) (providing the elements of negligent misrepresentation). On its face,
however, the FTCA clearly bars a claim arising from misrepresentation. 28
U.S.C. § 2680(h). Thus, even under the most liberal reading of Mr. Rogers’s
pleadings, he has failed to state a claim upon which relief can be granted.
D. Appointment of Counsel
Lastly, Mr. Rogers asserts that the District Court erred in denying his
motions for appointment of counsel. In exercising its discretion to appoint
counsel, “the district court should consider a variety of factors, including the
merits of the litigant’s claims, the nature of the factual issues raised in the claims,
the litigant’s ability to present his claims, and the complexity of the legal issues
raised by the claims.” Long , 927 F.2d at 527 . After independently reviewing the
record on appeal, we conclude the District Court did not abuse its discretion in
denying Mr. Rogers’s motions for appointment of counsel.
IV. CONCLUSION
For these reasons, we AFFIRM the District Court’s dismissal of Mr.
Rogers’s complaint and its denial of his motions for appointment of counsel.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
-9-