United States District Court, D. Kansas
JERRY R.C. COOPER, 38341, Plaintiff,
UNITED STATES OF AMERICA, CINDY SMITH, HARRY SMITH. Defendants.
RICHARD D. ROGERS, District Judge.
Plaintiff has filed a pro se complaint alleging various causes of action stemming from his claim that his deceased father, James W. Cooper, a military veteran, never divorced his first wife, Peggy R. Cooper, but later entered two other marriages - one in 1946 to Opal Cooper (which ended in divorce) and one in 1978 to Lola Smith who predeceased Mr. Cooper.
I. Plaintiff's allegations
Plaintiff names the United States of America, Cindy Smith and Harry Smith as defendants. Cindy Smith and Harry Smith are alleged to be step-children from James Cooper's third marriage. Plaintiff asserts that they have illegally obtained government benefits upon the false premise that James Cooper's third marriage was a legal one. Plaintiff further asserts that Cindy Smith and Harry Smith have deprived the legal children of James Cooper of property without due process. The complaint also claims that in October 2010 defendant Cindy Smith, as an alleged daughter of James W. Cooper, requested an honor detail to perform at his funeral, and that she was listed as a daughter on his death certificate. Plaintiff has attached as an exhibit a copy of a consent decree entered in the Kansas State District Court for Labette County, Kansas on October 22, 2013 wherein Cindy Smith consents that she is neither the biological child nor the step-child of James Cooper because Cooper was not legally divorced from Peggy Cooper at the time of his marriage to Lola Smith. Plaintiff asserts that the United States has failed to maintain accurate records to determine marital rights and the provision of benefits. Plaintiff also asserts that defendants have deprived plaintiff of his First Amendment religious rights.
Plaintiff alleges: a violation of the Tenth Amendment to the Constitution; a violation of 1 U.S.C. § 7; a violation of a federal regulation, 38 C.F.R. § 3.52; and a violation of Kansas common law prohibiting fraud. Plaintiff also mentions statutes related to the adjudication of veterans benefits, such as 38 U.S.C. §§ 103(c) and 5107. Plaintiff appears to seek a remedy under federal statutes providing for administrative review, 5 U.S.C. §§ 702, 706; the Privacy Act, 552a(g)(1)&(4); the Federal Tort Claims Act, 28 U.S.C. § 2674; and 42 U.S.C. § 1983. Plaintiff requests declaratory relief as to James Cooper's mental state; a declaration that his third marriage was void, illegal and bigamous; a correction of federal records to delete reference to the alleged sham marriages; a declaration that defendants made false statements which deprived plaintiff of due process; a declaration that plaintiff's religious rights have been violated; and damages in excess of $500, 000 from each defendant.
In response to a show cause order from this court, plaintiff has stated that the United States should be made liable because, in a September 1978 administrative decision by the Veterans Administration, it recognized as "presumed valid" the 1978 marriage between James Cooper and Lola Smith. Plaintiff also asserts that defendants Cindy and Harry Smith should be liable because they made statements to police officers, funeral directors, the Kansas Department of Health and Environment, and others that they were the step-children of James Cooper.
II. Show cause order
Plaintiff, who is confined in a Kansas correctional facility, has asked for leave to proceed in forma pauperis. This case is before the court upon an order to show cause why this case should not be dismissed. This order was issued pursuant to this court's obligation under 28 U.S.C. § 1915A to review cases filed by inmates and to dismiss claims which are frivolous or fail to state a claim or which seek monetary relief from defendants who are immune from such relief. Because plaintiff is appearing pro se, we construe his filings liberally but "our role is not to act as his advocate." See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
For the reasons which follow, the court shall order that this case be dismissed.
III. Standards for determining whether a complaint fails to state a claim
In Khalik v. United Air Lines, 671 F.3d 1188, 1190-92 (10th Cir. 2012), the Tenth Circuit reviewed the standards for determining whether a complaint fails to state a claim:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Recently the Supreme Court clarified this pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009): to withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as true, "to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A plaintiff must "nudge [his] claims across the line from conceivable to plausible" in order to survive a motion to dismiss. Id.
The Court explained two principles underlying the new standard: (1) when legal conclusions are involved in the complaint "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions, " Iqbal, 129 S.Ct. at 1949, and (2) "only a complaint that states a plausible claim for relief survives a motion to dismiss, " id. at 1950. Thus, mere "labels and conclusions" and "a formulaic recitation of the elements of a cause of action" will not suffice. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Accordingly, in examining a complaint under Rule ...