Gregory Edward Kucera; Barbara Blessing-Kucera v. United States of America

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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GREGORY EDWARD KUCERA;
BARBARA BLESSING-KUCERA,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 21-2123
(D.C. No. 1:21-CV-00811-RB-SCY)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, KELLY, and CARSON, Circuit Judges.
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Gregory Edward Kucera and his mother, Barbara Blessing-Kucera, appeal the
district court’s sua sponte dismissal without prejudice of their pro se action against
the United States pursuant to Federal Rule of Civil Procedure 41(b) and 28 U.S.C.
§ 1915(e)(2)(B)(ii). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
In their amended complaint, Kucera and Blessing-Kucera alleged that
numerous federal agencies have subjected them to “remote neurological monitoring,”
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 14, 2022
Christopher M. Wolpert
Clerk of Court
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R. at 6, via “brain implant[s],” id. at 18, and have installed surveillance equipment in
their homes, id. at 8, making them involuntary “subject[s] of classified human
research” by “lethal weapons program developers,” id. at 15.
This is the ninth action Kucera has filed in the district of New Mexico since
2017. That court imposed filing restrictions on Kucera in 2018, enjoining him from
initiating further litigation in that district unless he is represented by counsel or
obtains the court’s permission to proceed pro se. 1 Thus, the district court ordered
Kucera to show cause why it should not dismiss his claims due to his failure to
comply with these filing restrictions in initiating this action. In response, Kucera
objected to the filing restrictions and asserted that his claims are not frivolous.
Noting that the deadline to object to the filing restrictions had passed, the court
concluded that neither the nature of his claims nor his asserted good faith justified
Kucera’s noncompliance. It therefore dismissed Kucera’s claims without prejudice,
leaving only the claims raised by Blessing-Kucera.
The district court then construed the amended complaint as attempting to
assert claims under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Privacy Act, 5 U.S.C. § 552a(g)(1)(A-D), and the
Federal Tort Claims Act (FTCA). The district court dismissed Blessing-Kucera’s
Bivens and Privacy Act claims for failure to state a claim after concluding she failed
1 After Kucera filed two more actions without first complying with these filing
restrictions, the district court imposed an additional restriction in 2019 requiring him
to prepay the filing fee in all future actions. He prepaid the filing fee in this action.
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to sufficiently allege who did what to her or when and how they did it. In addition to
failing to provide fair notice of her Bivens and Privacy Act claims, the district court
noted that Blessing-Kucera failed to allege facts identifying which Privacy Act
provisions the identified federal agencies allegedly violated. Lastly, the court held it
lacked subject-matter jurisdiction over Blessing-Kucera’s FTCA claim because she
failed to allege that she had exhausted administrative procedures, as required by
28 U.S.C. § 2675(a). Although the amended complaint attached a claim she filed
with a federal agency, Blessing-Kucera did not allege facts demonstrating that claim
had been finally denied or that she had administratively exhausted any other FTCA
claim.
The district court entered final judgment dismissing the action without
prejudice, after which Kucera and Blessing-Kucera filed a timely notice of appeal.
Because Appellants are proceeding pro se, we construe their filings liberally, but we
do not act as their advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir.
2008).
We review the district court’s dismissal of Kucera’s claims for an abuse of
discretion. See Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002)
(reviewing dismissal for failure to follow court order for abuse of discretion).
Kucera does not assert that he complied with the filing restrictions by having counsel
sign his pleading or by obtaining the district court’s permission to proceed pro se.
And to the extent he seeks to challenge those restrictions, the time to do has passed.
See Werner v. Utah, 32 F.3d 1446, 1448 (10th Cir. 1994) (“[I]f petitioner disagrees
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with the district court’s filing restrictions, his avenue for review is an appeal from the
order establishing the restrictions.”). 2 We therefore affirm the district court’s
dismissal of Kucera’s claims.
We review de novo the district court’s dismissal of Blessing-Kucera’s claims.
See McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001) (reviewing dismissal for
failure to state a claim de novo); Lopez v. United States, 823 F.3d 970, 975 (10th Cir.
2016) (reviewing issue of subject-matter jurisdiction de novo). She bears “the
burden of alleging sufficient facts on which a recognized legal claim could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). And “conclusory allegations
without supporting factual averments are insufficient.” Id. Ultimately, a complaint
must “give the defendant fair notice of what the claim is and the grounds upon which
it rests.” Smith v. United States, 561 F.3d 1090, 1104 (10th Cir. 2009) (internal
quotation marks omitted).
Blessing-Kucera fails to address the district court’s rationales for dismissing
her Bivens and Privacy Act claims. Asserting that the district court erred, without
advancing a “reasoned argument as to the grounds for the appeal,” is insufficient
appellate argument. Habecker v. Town of Estes Park, 518 F.3d 1217, 1223 n.6
(10th Cir. 2008) (internal quotation marks omitted); see also Murrell v. Shalala,
43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (stating “perfunctory” allegations of error
are not “sufficient to invoke appellate review”). Thus, we affirm the district court’s
2 Kucera filed a notice of appeal following the district court’s imposition of
filing restrictions in 2018, but his appeal was dismissed for lack of prosecution.
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dismissal of Blessing-Kucera’s Bivens and Privacy Act claims for failure to state a
claim.
Turning to her FTCA claim, we note that Blessing-Kucera’s appeal argument
is unclear. But liberally construing her brief, she may be asserting that the district
court erred in dismissing her FTCA claim for lack of subject-matter jurisdiction
because, contrary to the court’s conclusion, she did allege sufficient facts to
demonstrate that she administratively exhausted that claim. But her oblique
references to Kucera’s allegations in previous litigation, to which she was not a party,
fail to show that the amended complaint in this action sufficiently alleged exhaustion
as to her FTCA claim. And as the district court held, the claim form Blessing-Kucera
attached to the amended complaint did not, by itself, demonstrate that the agency had
finally denied that claim before she filed this action. 3 Because Blessing-Kucera fails
to show the district court erred in dismissing her FTCA claim for lack of
subject-matter jurisdiction, we affirm that ruling. 4
3 Although Blessing-Kucera could deem her claim finally denied if the agency
failed to make a final decision within six months of her claim’s filing date, see
§ 2675(a), she did not wait six months before filing this action, compare R. at 34
(administrative claim dated July 9, 2021), with id. at 1 (original complaint filed on
August 23, 2021).
4 The district court cited Lopez, 823 F.3d at 976, for the proposition that the
exhaustion requirement in § 2675(a) is jurisdictional. We note there is a circuit split
on whether § 2675 is a jurisdictional rule or a claims-processing rule. Compare
White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456-58 (3d Cir. 2010) (holding the
sum-certain requirement in § 2675(b) is jurisdictional because the FTCA’s
jurisdiction-granting provision, 28 U.S.C. § 1346(b)(1), states that district courts
have jurisdiction “[s]ubject to the provisions of chapter 171,” and § 2675 is contained
in chapter 171 (internal quotation marks omitted)), and Mader v. United States,
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We affirm the district court’s judgment. The pending motions and petition for
a writ of mandamus are denied.
Entered for the Court
Nancy L. Moritz
Circuit Judge
654 F.3d 794, 806-08 (8th Cir. 2011) (applying the same reasoning in holding that
the exhaustion requirement in § 2675(a) is jurisdictional), with Copen v. United
States, 3 F.4th 875, 880-82 (6th Cir. 2021) (rejecting that court’s longstanding
holding that § 2675(b) is jurisdictional, as well as the reasoning in White-Squire and
Mader, and holding that § 2675(b) is a claims processing rule because: (1) the
Supreme Court has not spoken on the issue, (2) § 2675 itself does not include
jurisdictional language, and (3) chapter 171 contains many other provisions that are
clearly not jurisdictional). We do not reach this issue because Blessing-Kucera does
not raise it on appeal.
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