Calon v. Apfel, 10th Cir. (1999)
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
APR 26 1999
PATRICK FISHER
Clerk
JOHN CALON,
Plaintiff-Appellant,
v.
KENNETH S. APFEL, Commissioner,
Social Security Administration,
No. 98-3190
(D.C. No. 97-CV-2600-GTV)
(D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT
Before BALDOCK , BARRETT , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
Plaintiff, appearing pro se, appeals the district courts dismissal of this
action for lack of jurisdiction. Reviewing the district courts decision de novo,
see Ordinance 59 Assn v. United States Dept of Interior Secretary
, 163 F.3d
1150, 1152 (10th Cir. 1998), and liberally construing plaintiffs pleadings,
see,
e.g. , Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam), we affirm in
part, reverse in part and remand for further proceedings.
Plaintiff challenges the administrative law judges denial of his application
for disability benefits and supplemental security income. Because plaintiff failed
to exhaust his administrative remedies,
see Bowen v. City of New York , 476 U.S.
467, 472, 482 (1986), we do not have jurisdiction to consider the merits of this
claim. See Mathews v. Eldridge , 424 U.S. 319, 327 (1976). The circumstances of
this case do not suggest exhaustion should be waived.
See generally Bowen , 476
U.S. at 482-83 (discussing factors that may excuse claimants failure to exhaust
administrative remedies).
Plaintiff also seeks Social Security funds to pay for his euthanasia and
burial. Because he failed to allege that he presented this specific claim to the
Social Security Administration (SSA), we lack jurisdiction to consider it.
See
Eldridge , 424 U.S. at 326-28. Even if he did assert this claim to the SSA, his
failure to exhaust his administrative remedies would also foreclose our review of
this claim.
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In addition to these claims for Social Security benefits, however, plaintiff
also asserts several causes of action independent from the administrative
entitlement proceedings. Although the district court did not specifically address
these causes of action, we will still affirm their dismissal, but only if
it is obvious that the plaintiff cannot prevail on the facts he has
alleged and it would be futile to give him an opportunity to amend.
In determining whether dismissal is proper, we must accept the
allegations of the complaint as true and we must construe those
allegations, and any reasonable inferences that might be drawn from
them, in the light most favorable to the plaintiff. Further, we must
liberally construe the allegations of a pro se complaint.
See Haines
v. Kerner , 404 U.S. [at] 520-21.
Perkins v. Kansas Dept of Corrections
, 165 F.3d 803, 806 (10th Cir. 1999)
(further citations omitted).
Plaintiff alleges that the SSA refused to provide him with his records.
Under the Freedom of Information Act (FOIA),
see 5 U.S.C. 552, and the
Privacy Act, see 5 U.S.C. 552a, plaintiff may assert a cause of action to obtain
SSA records, independent of any claim for entitlement of benefits.
See also, e.g. ,
20 C.F.R. 401.35, 401.130. Furthermore, liberally construing his pleadings,
plaintiffs allegations that he has exhausted the applicable administrative
remedies are sufficient to withstand summary dismissal with prejudice.
Taylor v. United States Treasury Dept
Cf.
, 127 F.3d 470, 476-78 (5th Cir. 1997)
(failure to exhaust administrative remedies justified dismissing Privacy Act claim
without prejudice); Taylor v. Appleton , 30 F.3d 1365, 1367-68, 1370 (11th Cir.
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1994) (same holding with regard to FOIA claim). The district court, therefore,
erred in summarily dismissing this claim for relief.
Plaintiff also seeks an exception from state and federal laws prohibiting
assisted suicide. He does not identify, and we have not found, any such federal
law. 1
Liberally construing his pleadings, plaintiff further alleged a federal
constitutional challenge to state laws prohibiting assisted suicide, apparently
based upon the First Amendments Free Exercise Clause. That allegation,
however, fails to state a claim for relief.
1181-82 (10th Cir.),
See Shaffer v. Saffle , 148 F.3d 1180,
cert. denied , 119 S. Ct. 520 (1998) (law that is
religion-neutral and generally applicable does not violate Free Exercise Clause,
despite incidental effect on religious practice).
Further, the right to assistance in committing suicide is not a
fundamental liberty interest protected by the Due Process Clause.
Glucksberg , 521 U.S. 702, 728 (1997);
Washington v.
see also id. (further holding Washingtons
ban on assisted suicide was rationally related to several legitimate state interests).
Nor does a state law making it a crime to aid another to commit or attempt
The Assisted Suicide Funding Restriction Act of 1997,
see 42 U.S.C.
14401-14408 (Supp. 1998), does preclude expenditure of federal funds for
assisted suicide. Because plaintiff has not established any basis for his
entitlement to federal funds for this purpose, this federal statute is not implicated
in this case.
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suicide, but [allowing] patients [to] refuse . . . lifesaving medical treatment,
violate the Equal Protection Clause.
Vacco v. Quill , 521 U.S. 793, 796-97 (1997)
(footnote omitted). Any other federal constitutional basis plaintiff may have
attempted to plead is too vague, even with a liberal construction, to present the
requisite federal question that would enable plaintiff to invoke the subject matter
jurisdiction of the federal courts under 28 U.S.C. 1331.
See Martinez v. United
States Olympic Comm. , 802 F.2d 1275, 1280 (10th Cir. 1986) (complaint must
identify statutory or constitutional bases under which claim arises, and allege
sufficient facts to show claim arises under federal law).
Plaintiff, however, may be able to amend his pleadings to allege a state law
cause of action challenging state laws prohibiting assisted suicide sufficient to
withstand summary dismissal.
See, e.g. , Krischer v. McIver , 697 So.2d 97, 99,
100, 104 (Fla. 1997); Donaldson v. Lungren , 2 Cal. App. 4th 1614, 1618-19,
1622-24 (Cal. Ct. App. 1992). We, therefore, remand his claim challenging state
laws prohibiting assisted suicide, to the extent it can be construed to allege a state
law theory of recovery, for the district court to amend its dismissal to be without
prejudice. See, e.g. , Clymore v. United States , 164 F.3d 569, 571 (10th Cir.
1999).
Dismissal of these possible state law grounds for relief without prejudice is
proper, despite our remand of plaintiffs federal claim seeking his SSA records,
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and despite 28 U.S.C. 1367's grant of supplemental jurisdiction, which would
permit the district court, in the exercise of its discretion, to consider state law
claims that are sufficiently related to a pending federal claim. Plaintiffs possible
state law causes of action challenging state laws prohibiting assisted suicide do
not state any claim that is so related to his claim for his SSA records that they
form part of the same case or controversy. 28 U.S.C. 1367(a);
Chicago v. International College of Surgeons
see also City of
, 522 U.S. 156, 164-66, 172 (1997).
Next, plaintiff seeks a protective order preventing the State of Missouri or
anyone else for that matter from attempting to arrest or otherwise civilly confine
[him] for expressing or practicing his [religious] convictions. Complaint at 4.
Because he failed to allege that he has sustained or is immediately in danger of
sustaining some direct injury as a result of the challenged official conduct and the
injury or threat of injury [is] both real and immediate, not conjectural or
hypothetical,
City of Los Angeles v. Lyons , 461 U.S. 95, 101-02 (1983) (further
quotation omitted), dismissal of this claim for lack of jurisdiction was
appropriate. See id. at 101-05.
For the first time on appeal, plaintiff challenges the National Organ
Transplant Act, see 42 U.S.C. 273-274e, which he asserts prevents him from
selling his organs to pay for his euthanasia. This court will generally not address
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issues raised for the first time on appeal.
See, e.g. , Howell v. United States , 164
F.3d 523, 525 n.1 (10th Cir. 1998).
The judgment of the United States District Court for the District of Kansas
is AFFIRMED in part, REVERSED in part and REMANDED for further
proceedings consistent with this order and judgment.
Entered for the Court
Robert H. Henry
Circuit Judge
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