Appellate Case: 21-1358 Document: 010110665258 Date Filed: 03/31/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 31, 2022 _________________________________ Christopher M. Wolpert Clerk of Court RODNEY DEWALT,
Plaintiff - Appellant,
v. No. 21-1358 (D.C. No. 1:20-CV-02681-WJM-NYW) UNITED STATES OF AMERICA, (D. Colo.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. _________________________________
Plaintiff Rodney DeWalt, a pro se litigant, appeals the district court’s dismissal
of his Federal Tort Claims Act (“FTCA”) lawsuit for lack of subject-matter
jurisdiction. See Fed. R. Civ. P. 12(b)(1). Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
This case has its roots in two unsuccessful lawsuits DeWalt previously brought
against the city of Overland Park, Kansas. See DeWalt v. City of Overland Park, 794
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-1358 Document: 010110665258 Date Filed: 03/31/2022 Page: 2
F. App’x 804 (10th Cir. 2020) (unpublished). Frustrated with the federal judges’
disposition of his prior proceedings, DeWalt filed the present action against the United
States asserting three FTCA claims. He contends the federal judges during his prior
lawsuits committed the following torts: (1) abuse of process, (2) intentional inflection
of emotional distress, and (3) negligence.
DeWalt’s present case was initially assigned to a magistrate judge, but, after he
refused to consent to the magistrate judge’s jurisdiction, it was reassigned to a district
judge and referred to a magistrate. The United States filed a motion to dismiss arguing
DeWalt could not establish subject-matter jurisdiction. The magistrate judge agreed,
recommending the district court grant the Government’s motion to dismiss because
DeWalt’s first claim was barred by 28 U.S.C. § 2680(h) and his second and third claims
were barred because he failed to show the existence of any private analogues under
Kansas law sufficient to impose liability on a “private individual under like
circumstances.”1 28 U.S.C. § 2674. The district court adopted the magistrate judge’s
recommendation in its entirety and dismissed DeWalt’s complaint for lack of subject-
matter jurisdiction.
DeWalt’s first claim of error is the magistrate judge did not have legal authority
to rule on the Government’s motion to dismiss because he never consented to the
magistrate’s authority. But the magistrate only recommended a disposition, never
1 The magistrate also recommended dismissing for lack of subject-matter jurisdiction because DeWalt failed to exhaust his administrative remedies. See Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999). Because the parties focus on a different, independently sufficient reason for dismissal, we need not decide this issue. 2 Appellate Case: 21-1358 Document: 010110665258 Date Filed: 03/31/2022 Page: 3
ruling on the motion to dismiss. Ruling on a motion and recommending a ruling on a
motion are legally distinct concepts. A district court can, without the parties’ consent,
ask a magistrate judge to prepare a recommended disposition for a motion to dismiss
for lack of subject-matter jurisdiction. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(1). Because there was nothing out of the ordinary in the handling of DeWalt’s
case, we hold DeWalt’s first argument is meritless. See Garcia v. City of Albuquerque,
232 F.3d 760, 766 (10th Cir. 2000); Zhu v. Countrywide Realty Co., 66 F. App’x 840,
842 (10th Cir. 2003) (unpublished).
Second, DeWalt contends the district court improperly dismissed his complaint
for lack of subject-matter jurisdiction. In reviewing DeWalt’s brief, we must construe
it liberally and hold it to a less stringent standard than briefs drafted by lawyers, but
the “court cannot take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). Under this liberal standard, we hold
DeWalt cannot establish subject-matter jurisdiction and, therefore, dismissal was
appropriate.
“Under the doctrine of sovereign immunity, the United States is not subject to
suit absent its consent.” Faber v. United States, 921 F.2d 1118, 1119 (10th Cir. 1990).
Consent to suit is a jurisdictional prerequisite to hearing lawsuits against the
Government. United States v. Mitchell, 463 U.S. 206, 212 (1983); Garling v. EPA,
849 F.3d 1289, 1294 (10th Cir. 2017). The FTCA “is a limited waiver of sovereign
immunity, making the Federal Government liable to the same extent as a private party
3 Appellate Case: 21-1358 Document: 010110665258 Date Filed: 03/31/2022 Page: 4
for certain torts of federal employees acting within the scope of their employment.”
United States v. Orleans, 425 U.S. 807, 813 (1976). Subject to the exceptions listed
in 28 U.S.C. § 2680, the FTCA permits claims against the United States “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.”
Id. § 1346(b)(1). DeWalt bears the burden of proving sovereign immunity has been
waived—a burden he has not satisfied. James v. United States, 970 F.2d 750, 753
(10th Cir. 1992).
We lack jurisdiction over DeWalt’s first claim (abuse of process) because it falls
squarely within one of the exceptions reserved by Congress in 28 U.S.C.
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Appellate Case: 21-1358 Document: 010110665258 Date Filed: 03/31/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 31, 2022 _________________________________ Christopher M. Wolpert Clerk of Court RODNEY DEWALT,
Plaintiff - Appellant,
v. No. 21-1358 (D.C. No. 1:20-CV-02681-WJM-NYW) UNITED STATES OF AMERICA, (D. Colo.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. _________________________________
Plaintiff Rodney DeWalt, a pro se litigant, appeals the district court’s dismissal
of his Federal Tort Claims Act (“FTCA”) lawsuit for lack of subject-matter
jurisdiction. See Fed. R. Civ. P. 12(b)(1). Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
This case has its roots in two unsuccessful lawsuits DeWalt previously brought
against the city of Overland Park, Kansas. See DeWalt v. City of Overland Park, 794
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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. Appellate Case: 21-1358 Document: 010110665258 Date Filed: 03/31/2022 Page: 2
F. App’x 804 (10th Cir. 2020) (unpublished). Frustrated with the federal judges’
disposition of his prior proceedings, DeWalt filed the present action against the United
States asserting three FTCA claims. He contends the federal judges during his prior
lawsuits committed the following torts: (1) abuse of process, (2) intentional inflection
of emotional distress, and (3) negligence.
DeWalt’s present case was initially assigned to a magistrate judge, but, after he
refused to consent to the magistrate judge’s jurisdiction, it was reassigned to a district
judge and referred to a magistrate. The United States filed a motion to dismiss arguing
DeWalt could not establish subject-matter jurisdiction. The magistrate judge agreed,
recommending the district court grant the Government’s motion to dismiss because
DeWalt’s first claim was barred by 28 U.S.C. § 2680(h) and his second and third claims
were barred because he failed to show the existence of any private analogues under
Kansas law sufficient to impose liability on a “private individual under like
circumstances.”1 28 U.S.C. § 2674. The district court adopted the magistrate judge’s
recommendation in its entirety and dismissed DeWalt’s complaint for lack of subject-
matter jurisdiction.
DeWalt’s first claim of error is the magistrate judge did not have legal authority
to rule on the Government’s motion to dismiss because he never consented to the
magistrate’s authority. But the magistrate only recommended a disposition, never
1 The magistrate also recommended dismissing for lack of subject-matter jurisdiction because DeWalt failed to exhaust his administrative remedies. See Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999). Because the parties focus on a different, independently sufficient reason for dismissal, we need not decide this issue. 2 Appellate Case: 21-1358 Document: 010110665258 Date Filed: 03/31/2022 Page: 3
ruling on the motion to dismiss. Ruling on a motion and recommending a ruling on a
motion are legally distinct concepts. A district court can, without the parties’ consent,
ask a magistrate judge to prepare a recommended disposition for a motion to dismiss
for lack of subject-matter jurisdiction. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(1). Because there was nothing out of the ordinary in the handling of DeWalt’s
case, we hold DeWalt’s first argument is meritless. See Garcia v. City of Albuquerque,
232 F.3d 760, 766 (10th Cir. 2000); Zhu v. Countrywide Realty Co., 66 F. App’x 840,
842 (10th Cir. 2003) (unpublished).
Second, DeWalt contends the district court improperly dismissed his complaint
for lack of subject-matter jurisdiction. In reviewing DeWalt’s brief, we must construe
it liberally and hold it to a less stringent standard than briefs drafted by lawyers, but
the “court cannot take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). Under this liberal standard, we hold
DeWalt cannot establish subject-matter jurisdiction and, therefore, dismissal was
appropriate.
“Under the doctrine of sovereign immunity, the United States is not subject to
suit absent its consent.” Faber v. United States, 921 F.2d 1118, 1119 (10th Cir. 1990).
Consent to suit is a jurisdictional prerequisite to hearing lawsuits against the
Government. United States v. Mitchell, 463 U.S. 206, 212 (1983); Garling v. EPA,
849 F.3d 1289, 1294 (10th Cir. 2017). The FTCA “is a limited waiver of sovereign
immunity, making the Federal Government liable to the same extent as a private party
3 Appellate Case: 21-1358 Document: 010110665258 Date Filed: 03/31/2022 Page: 4
for certain torts of federal employees acting within the scope of their employment.”
United States v. Orleans, 425 U.S. 807, 813 (1976). Subject to the exceptions listed
in 28 U.S.C. § 2680, the FTCA permits claims against the United States “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.”
Id. § 1346(b)(1). DeWalt bears the burden of proving sovereign immunity has been
waived—a burden he has not satisfied. James v. United States, 970 F.2d 750, 753
(10th Cir. 1992).
We lack jurisdiction over DeWalt’s first claim (abuse of process) because it falls
squarely within one of the exceptions reserved by Congress in 28 U.S.C. § 2680.
Congress explicitly barred FTCA claims “arising out of . . . abuse of process.” Id.
§ 2680(h). When an FTCA claim falls squarely within the parameters of one of the
§ 2680 exceptions, the Government retains its sovereign immunity—precluding
jurisdiction over the claim. See Garcia v. U.S. Air Force, 533 F.3d 1170, 1175–76
(10th Cir. 2008).
We also lack jurisdiction over DeWalt’s second and third claims (intentional
infliction of emotional distress and negligence, respectively). An FTCA claim can
only proceed under circumstances “where local law would make a private person liable
in tort.” United States v. Olson, 546 U.S. 43, 44 (2005) (cleaned up). If the plaintiff
cannot show that, under state law, a “private individual under like circumstances”
could be liable in tort, the plaintiff’s claims are jurisdictionally barred. See Ayala v.
United States, 49 F.3d 607, 610 (10th Cir. 1995); Daniel A. Morris, Federal Tort
4 Appellate Case: 21-1358 Document: 010110665258 Date Filed: 03/31/2022 Page: 5
Claims § 1:6 (2021) (“A claimant’s failure to establish analogous private person
liability may be held a jurisdictional defect warranting dismissal of a claim under the
FTCA.”). DeWalt fails to identify any analogous claims under Kansas law where
persons acting in like circumstances—adjudicating lawsuits—were held liable for
intentional infliction of emotional distress or negligence. This is not surprising
because the adjudication of federal lawsuits is a unique activity which we cannot—at
least, independently—analogize to any situation a private person may find themselves
in. Because DeWalt fails to show the federal judges could have been liable under
Kansas law if they had been private individuals, he fails to meet his burden to show
Congress consented to this suit. We, therefore, lack jurisdiction to hear DeWalt’s
claims.
For the reasons stated herein, we AFFIRM the district court’s judgment.2
Entered for the Court
Bobby R. Baldock Circuit Judge
2 Even if the United States consented to DeWalt’s suit, his claims would likely be barred by the judicial immunity doctrine. See Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000); 28 U.S.C. § 2674 (“[T]he United States shall be entitled to assert any defense based upon judicial . . . immunity.”). 5