Askins v. Heck

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ZACKERY J. ASKINS, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-25-1302-PRW
)
CAPTAIN FNU HECK, 	)
)
Defendant. 	)
REPORT AND RECOMMENDATION
Plaintiff, a pro se military prisoner, has filed a Complaint. (Doc. 1).1 United States
District Judge Patrick R. Wyrick referred this matter to the undersigned Magistrate Judge
for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 6). The undersigned
has reviewed the Complaint pursuant to 28 U.S.C. § 1915A(a). As explained fully below,
it is recommended that the Court DISMISS the Complaint and that the pending motion be
DENIED AS MOOT.
I. 	Plaintiff’s Complaint
Plaintiff is currently incarcerated at the Midwest Joint Regional Correctional
Facility in Fort Leavenworth, Kansas. 	(See Doc. 1, at 7).2 	Plaintiff’s three claims, as
described in his “Demands” section, all arise out of an alleged theft of property at Plaintiff’s
1 Citations to Plaintiff’s filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
2 The undersigned takes judicial notice of Plaintiff’s detention facility, the address of which
he included as his return address on the envelope of his Complaint. 	(See id., at Ex. 2, at
1).
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home in Lawton, Oklahoma. (Id. at 8-9). In his Complaint, Plaintiff alleges that “[o]n or
about March of 2022 multiple members of the [U.S. Army], to include members of the
Plaintiff’s [chain of command,] did burglarize the Plaintiff’s home.” (Id. at 2). 	Plaintiff
states these soldiers “did remove property belonging to the Plaintiff without consent, and
caused extensive damage to the Plaintiff’s domicile, vehicles, and other property.” 	(Id.)
Plaintiff alleges that he attempted to regain his property on multiple occasions to no avail.
(Id. at 2-7). 	Plaintiff’s three counts are as follows: (1) “judg[]ment . . . in the amount of
[$1,469,650] for theft and destruction of Plaintiff[’]s property, or the return of all such
property, or combination of the two;” (2) “judg[]ment . . . in the amount of [$1,000,000]
for theft, damage[s], and deprivation of Plaintiff’s child’s property including photos,
childhood toys, family heirlooms, vital paperwork such as wills, and irreplaceable family
items;” and (3) “judg[]ment . . . for consequential damages from October 24, 2025[,] until
time of judg[]ment.” (Id. at 8-9).
Plaintiff additionally includes a variety of information unrelated to his three legal
claims in his Complaint. 	Plaintiff states his commander attempted to coerce him into
signing various documents, and when Plaintiff refused, the commander forged Plaintiff’s
signature on the documents. 	(Id. at 2). 	Plaintiff states his commander “did seize and
withhold Plaintiff’s medication and medical device,” which allegedly led to pancreatic
failure. (Id. at 2, 4-7). Plaintiff alleges he was not allowed to seek civilian counsel. (Id.
at 2-3). 	Plaintiff states “several attempted sexual assaults” were made on him while
incarcerated. (Id. at 3). Finally, Plaintiff contends he was subject to “a pattern of retaliation
as every time the Plaintiff is taken to the hospital for the medical conditions which were
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inflicted during service to the Military (Defendant) the Plaintiff is placed into 24-hour
isolation for days and weeks on end with no access to basic amenities, to include mail,
sometimes even lacking medications, or having meals forgotten about. This is in addition
[to] being shackled to the bed during a hospital visit and not allowed to use bathroom
facilities until the Plaintiff was forced to defecate himself.” (Id. at 7).
II. 	Screening
Federal law mandates the screening of complaints filed by prisoners seeking redress
from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must dismiss a complaint or any portion of it presenting claims that
fail to state a claim upon which relief may be granted. Id. at § 1915A(b).
The court’s review of a complaint under § 1915A(b)(1) mirrors that required for
reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief may be granted. 	The court must accept
Plaintiff’s allegations as true and construe them, and any reasonable inferences to be drawn
from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217
(10th Cir. 2007). The court “review[s] the complaint for plausibility; that is, to determine
whether the complaint includes enough facts to state a claim to relief that is plausible on
its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (internal quotation marks
and citation omitted). 	A complaint fails to state such a claim when it lacks factual
allegations sufficient “to raise a right to relief above the speculative level on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007) (footnote and citation omitted). Bare legal conclusions
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in a complaint, however, are not assumed to be true; legal conclusions “must be supported
by factual allegations” to state a claim upon which relief may be granted. Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
“[A] pro se 	plaintiff requires no special 	legal training to recount the facts
surrounding his alleged injury, and he must provide such facts if the court is to determine
whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991); see also Whitney v. New Mexico, 113 F.3d 1170, 1173–74
(10th Cir. 1997) (noting that although courts construe pro se pleadings liberally, courts
“will not supply additional factual allegations to round out a plaintiff’s complaint”).
Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is
determined through a court’s application of “judicial experience and common sense.”
Iqbal, 556 U.S. at 679; see also Gee v. Pacheco, 627 F.3d 1178, 1184-85 (10th Cir. 2010)
(discussing Iqbal).
A pro se litigant’s pleadings are liberally construed “and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 	But the
court cannot serve as Plaintiff’s advocate, creating arguments on his behalf. 	See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. 	Plaintiff has Failed to State a Cognizable Claim Under Applicable Law.
Plaintiff has sued an employee of the federal government for theft and actions
incident to theft. 	His three claims, liberally construed, appear to allege claims under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80. 	In general, “sovereign
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immunity shields the Federal Government . . . from suit.” F.D.I.C. v. Meyer, 510 U.S. 471,
475 (1994). 	However, “[t]he Federal Tort Claims Act is a limited waiver of sovereign
immunity.” U.S. v. Orleans, 425 U.S. 807, 813 (1976). The FTCA provides for some suits
“against the United States for injury or loss of property or personal injury or death caused
by the negligent or wrongful act or omission of any employee . . . while acting within the
scope of his office or employment.” 28 U.S.C. § 2672. Because Plaintiff alleges a loss of
property due to actions of an employee of the United States, his claims fall under the FTCA.
See, e.g., Coutinho-Silva v. Dell, 2023 WL 12130341, at *3-4 (D. Colo. Dec. 21, 2023)
(construing theft claim against federal employees as FTCA claim).
Plaintiff alleges his three claims against Defendant “Captain Heck,” a military
officer. (Doc. 1, at 1). As an initial matter, “[t]he United States is the only proper defendant
in an FTCA action.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001). This
alone is sufficient to dismiss the claims against the sole defendant. 	See Smith v. United
States, 561 F.3d 1090, 1099 (10th Cir. 2009) (reasoning that a “district court correctly
dismissed [the plaintiff’s] FTCA claims against every defendant except the United States
on the ground that those defendants were not proper parties”).
Even if Plaintiff named the United States as a defendant, his claims should be
dismissed. 	In 1950, the Supreme Court determined that “the Government is not liable
under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out
of or are in the course of activity incident to service.” 	Feres v. United States, 340 U.S.
135, 146 (1950). This doctrine is
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best explained by the “peculiar and special relationship of the soldier to his
superiors, the effects of the maintenance of [FTCA] suits on discipline, and
the extreme results that might obtain if suits under the Tort Claims Act were
allowed for negligent orders given or negligent acts committed in the course
of military duty.”
United States v. Muniz, 374 U.S. 150, 162 (1963) (quoting United States v. Brown, 348
U.S. 110, 112 (1954)).
Over time, “the federal courts have expanded the reach of the Feres doctrine.”
Ricks v. Nickels, 295 F.3d 1124, 1133 (10th Cir. 2002); see also United States v. Johnson,
481 U.S. 681, 687-88 (1987) (noting that “the Feres doctrine has been applied consistently
to bar all suits on behalf of service members against the Government based upon service-
related injuries”). In 2002, the Tenth Circuit held that the Feres doctrine applies to those
“incarcerated at a military prison” because such incarceration “stems from a military
relationship such that it is incident to a military service.” Ricks, 295 F.3d at 1133 (citation
modified). According to the Ricks court, a military prisoner’s claims “go[] directly to the
‘management’ of the military” and “call[] into question basic choices about the discipline,
supervision, and control of a serviceman.” Id. (quoting United States v. Shearer, 473 U.S.
52, 58 (1985)).
Plaintiff is a military prisoner alleging claims against the military. Like in Ricks,
the adjudication of Plaintiff’s claims would require an analysis of the military’s reasons for
its alleged theft. “The inquiry into military structure and command that adjudication of
[Plaintiff’s] claims would necessitate and its resulting effects are precisely the sort
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that Feres intended to circumscribe.” Id. at 1133. Plaintiff cannot assert his FTCA claims
against the military or an employee thereof and his claims should therefore be dismissed.3
IV. 	Pending Motion
Pending before the Court is Plaintiff’s “Motion to the Court,” “ask[ing] this Court
to assist the Plaintiff in this case in providing him with the correct forms and in serving a
proper and legal summons upon the Defendant.” (Doc. 8, at 1). Because the undersigned
recommends dismissal of the action, the undersigned also recommends that Plaintiff’s
pending motion be DENIED AS MOOT.
V. 	Recommendation and Notice of Right to Object
For the reasons stated, the undersigned recommends that Plaintiff’s Complaint
(Doc. 1) be DISMISSED.
Plaintiff is advised of his right to file an objection to this Report and
Recommendation with the Clerk of Court by February 3, 2026, in accordance with 28
U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Plaintiff is further advised that failure to
timely object to this Report and Recommendation waives the right to appellate review of
3 To the extent Plaintiff intended to allege a Bivens claim for deprivation by federal officers
of his constitutional rights, “The Supreme Court [has] subsequently applied the exception
created in Feres to damage actions under Bivens.” 	Ricks, 295 F.3d at 1127 (citing
Chappell v. Wallace, 462 U.S. 296, 305 (1983)). 	Moreover, to the extent he intended to
allege any other claim unrelated to his theft claims, these claims are undeveloped and do
not allow the court to “reasonably read the pleadings to state a valid claim on which the
plaintiff could prevail.” Hall, 935 F.3d at 1110; see also Laca v. United States, 2025 WL
2245140, at *3 n.1 (N.D. Okla. Aug. 6, 2025) (“Perfunctory, undeveloped arguments . . .
are waived” on motion to dismiss).
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both factual and legal issues contained herein. 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.
ENTERED this 13th day of January, 2026.
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