Pinkerton v. Transp. Sec. Admin.

Decision Date31 March 2014
Docket NumberCase No. 11-CV-421-JED-FHM
CourtU.S. District Court — Northern District of Oklahoma

Before the Court is the defendants' Motion to Dismiss / Motion for Summary Judgment (Motion) (Doc. 28). The Motion asserts several grounds of dismissal under Fed. R. Civ. P. 12(b)(6) and 12(b)(1).

I. Background

The plaintiff, John Ellis Pinkerton, seeks a declaratory judgment as well as money damages against the defendants, arising out of his assertion that the Department of Justice (DOJ) has maintained inaccurate records in the database maintained by the National Crime Information Center (NCIC). Those records reflect that Mr. Pinkerton has a criminal conviction for second degree murder and a parole violation thereafter. According to Mr. Pinkerton, the maintenance of those records has resulted in a number of problems for him "for the better part of Fifty (50) years." (Doc. 1 at 1-2). Specifically, based upon the reported 1957 conviction for second degree murder, Mr. Pinkerton alleges that has suffered a "loss of his military career andassociated benefits" after he was discharged from the United States Navy in 1957, a loss of his job as an authorized driver with a company in Florida (due to being denied a Hazardous Materials Endorsement (HME) on his commercial driver's license), and the loss or denial of jobs with the Boys & Girls Club of Jay, Oklahoma and other potential employers. (Doc. 1 at 2-3; Doc. 40). Mr. Pinkerton claims that, contrary to the NCIC record, he "has never . . . ever been charged with, tried for, or convicted of a felony crime, nor legally sentenced to an adult correctional institution." (Doc. 41 at 1; see also Doc. 1 at 2) (emphasis added). He asserts that the NCIC records, upon which the Transportation Security Administration (TSA) relied in denying the HME, are "false and malicious; slanderous and defamatory." (Doc. 1 at 1).

Mr. Pinkerton seeks "some proof of the 'false and malicious, slanderous and defamatory' statements . . ., or an order that they be either destroyed or sealed from public view." (Id. at 2). He seeks proof from the defendants of his convictions or, alternatively, a declaratory judgment of the Court under 28 U.S.C. § 2202 that he is "a free born citizen who has never been charged nor convicted of a felony crime and that therefore any statement to the contrary is declared 'false and malicious; slanderous and defamatory.'" (Id.). Mr. Pinkerton also requests that the Court award him money damages, in the amount of $6,500,000.00, to compensate for the loss of his military career and associated benefits, physical and mental humiliation, and the loss of jobs. He requests that the Court declare that his military discharge is void and an order that he be returned to duty and then discharged with a service record of 48 years of service and granted compensation for eight years of lost veteran's benefits.

II. Standards

Defendants seek dismissal pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim. Their Motion is dependent upon the Court's consideration of several documents outside the pleadings (see Doc. 28, Exhibits A-C; Doc 43, Exhibit D), and plaintiff has also submitted several materials in response.Generally, in considering a motion to dismiss, the Court must rely only on the allegations contained in the complaint. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). However, when a party seeks dismissal pursuant to Rule 12(b)(1), challenging the allegations supporting subject matter jurisdiction, the district courts have wide discretion to consider affidavits and other documents to resolve disputed jurisdictional facts. Id. at 1003; Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir. 2003) (quoting Holt, 46 F.3d at 1003). "In such instances, a court's reference to evidence outside the pleadings does not convert the motion [to dismiss] to a Rule 56 motion [for summary judgment]." Id.

"As a general rule, a 12(b)(1) motion cannot be converted into a motion for summary judgment under Rule 56." Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987) (citing Nichols v. United States, 796 F.2d 361, 366 (10th Cir. 1986)). "However, a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case." Holt, 46 F.3d at 1003 (emphasis added); see also Wheeler, 825 F.2d at 259. The merits are intertwined if "resolution of the jurisdictional question requires resolution of an aspect of the substantive claim." Paper, Allied-Indus., Chem. And Energy Workers Int'l Union v. Cont'l Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005). This exception provides plaintiffs with the protection of the standards associated with Rule 12(b)(6) and Rule 56 motions, depending on which standard the court chooses to apply. That is, facts are construed in the light most favorable to the non-movant and conflicting factual evidence is not weighed. See Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986) (noting that a court cannot resolve factual disputes when a motion is converted to one under Rule 56, but can do so under the ordinary 12(b)(1) standard); Genberg v. Porter, 935 F. Supp. 3d 1094 (D. Colo. 2013) (in ruling on atypical 12(b)(1) motion, "there is substantial authority that the trial court is free to weigh the evidence").

Here, because defendants moved pursuant to Rules 12(b)(1) and 12(b)(6) and the parties rely upon evidence outside the record, the Court converted the Motion and permitted the parties to supplement their submissions. To the extent that defendants have moved under Rule 12(b)(6), or their subject matter jurisdiction argument under Rule 12(b)(1) is intertwined with the merits of plaintiff's claims, the motion will be treated as a Rule 56 motion. Hence, any arguments that are not intertwined with the merits will be resolved under the Rule 12(b)(1) standard applicable to requests for dismissal for lack of subject matter jurisdiction.1

III. Analysis
A. Subject Matter Jurisdiction, Generally

"Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Subject matter jurisdiction cannot be conferred by the parties, nor can a defect in subject matter jurisdiction bewaived. United States v. Cotton, 535 U.S. 625, 630 (2002). Here, plaintiff cites 28 U.S.C. § 2201 as a basis for the Court's jurisdiction, and he generally refers to the First Amendment of the Constitution (Doc. 1 at 2), and to a denial of Equal Protection and Due Process (Doc. 41 at 3). The statute (§ 2201), by its terms, does not convey subject matter jurisdiction to the Court where such jurisdiction does not already exist. See § 2201 (a court may declare rights in cases of "actual controversy within its jurisdiction"). Assuming that Pinkerton is attempting to state a claim under 42 U.S.C. § 1983 for a violation of Due Process, Equal Protection, or First Amendment rights, he has not explained, and the Court has not identified, any nexus between those rights and his allegations, and he has presented no evidence which would support any such claims. Summary judgment is accordingly appropriate on any such alleged constitutional claims.

B. Plaintiff's Claims against the United States, the DOJ, and the FBI

The records upon which Mr. Pinkerton bases his claims are maintained on the NCIC system. The NCIC computer system "is a national criminal records data system administered by the Federal Bureau of Investigation [FBI]. NCIC contains criminal history information. . . ." United States v. Martinez-Jimenez, 464 F.3d 1205, 1210 (10th Cir. 2006) (citation omitted). The NCIC system is maintained pursuant to 28 U.S.C. § 534, which requires that the Attorney General "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records" and to "exchange such records and information with, and for the official use of, authorized officials of the Federal Government, . . . the States [and other entities]." The Attorney General's power and authority has been delegated to the FBI's CJIS division.

The United States, the DOJ, and the FBI seek dismissal, noting that Mr. Pinkerton has not alleged the existence of any statute that authorizes this Court to grant any of the relief he seeks against the United States, the DOJ, or the FBI. Construing Mr. Pinkerton's pleading liberally,these defendants assert that the only conceivable claim is a request for expungement of his criminal history records, under federal law or the Court's inherent authority. (See Doc. 28 at 4 and cited authority).2 The defendants argue that neither ground authorizes relief under the circumstances alleged by Mr. Pinkerton, because the statute governing the NCIC records does not provide any private right of action to request expungement, and the Court should decline any inherent authority to order expungement. (Doc. 28 at 4-5). Mr. Pinkerton does not respond directly to those arguments by the defendants, but he insists repeatedly that he has "never, ever" been charged, convicted, or sentenced for any crime. (See, e.g., Doc. 41 at 1; Doc. 1 at 2).

On its face, the statute directing the maintenance of NCIC records does not provide any private right of action in federal court to seek expungement of the NCIC record or any underlying state criminal records. See 28 U.S.C. § 534. No other federal statute provides the federal courts with jurisdiction...

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