Koch v. Potter, (10th Cir. 2006)

Text

---

UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

VICKI L. KOCH (Butrick),

Plaintiff-Appellant,

v.

JOHN E. POTTER, Postmaster

General of United States Postal

Service Agency (USPS),

Defendant-Appellee.

No. 05-6114

(D.C. No. CIV-04-125-R)

(W.D. Okla.)

ORDER AND JUDGMENT
name="txt*">(*)

Before KELLY, BRISCOE,

and LUCERO, Circuit Judges.

In this pro se appeal plaintiff Vicki L. Koch (Butrick) challenges the

district court's order dismissing plaintiff's post-employment retaliation claims for

failure to state a claim, dismissing certain of plaintiff's tort claims for lack of

subject matter jurisdiction, and granting defendant summary judgment on all of

plaintiff's claims for employment discrimination and retaliation (based on

res judicata) and on plaintiff's Federal Tort Claim Act (FTCA) claims that arose

more than two years before this lawsuit was filed.
name="txt1a">(1) Plaintiff also apparently

challenges the district court's order granting defendant's motion to quash

deposition subpoenas, its order denying plaintiff's motion for court approval of

plaintiff's proposed discovery, and its order dismissing plaintiff's second

amended complaint for lack of subject matter jurisdiction.

Our jurisdiction arises under 28 U.S.C. 1291. We review de novo both

a district court's dismissal of a complaint for failure to state a claim upon which

relief can be granted, Fed. R. Civ. P. 12(b)(6), and its dismissal of a complaint

for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1). Colo. Envtl.

Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004). We conduct a

similar de

novo review of a district court's grant of summary judgment, applying the same

standard as that court under Fed. R. Civ. P. 56(c). Wilkes v. Wyo. Dep't of

Employment Div. of Labor Standards, 314 F.3d 501, 503 (10th Cir. 2002). And,

finally, we review de novo "[w]hether the doctrine of res judicata applies to [a]

case." Id. "We review discovery-related rulings for an abuse of discretion."

Procter & Gamble Co. v. Haugen, 427 F.3d 727, 743 (10th Cir. 2005).

Because

plaintiff is representing herself, we construe her pleadings liberally. Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The parties are familiar with the underlying facts and procedural history,

and we therefore restate neither here. Having reviewed the briefs, the record, and

the applicable law pursuant to the above-mentioned standards, we hold that

plaintiff has not identified any reversible error in this case. We therefore

AFFIRM the challenged decisions for substantially the same reasons stated by the

district court in its orders of October 7, 2004 (R. Doc. 27); December 17, 2004

(R. Doc. 50); February 14, 2005 (R. Doc. 60); and March 2, 2005 (R. Doc. 64).

Plaintiff's "Motion to File" and "Motion to File Supplemental Authority" are

DENIED.

Entered for the Court

Paul J. Kelly, Jr.



Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

1. In its order, the district court also

granted plaintiff limited leave to amend

her complaint with respect to certain of her FTCA claims to allege that she filed

an administrative claim before filing this lawsuit, and consequently, that the

district court possessed subject matter jurisdiction over these FTCA claims.

See Three-M Enters., Inc. v. United States, 548 F.2d 293, 294 (10th Cir. 1977)

("The United States has consented to be sued for torts in the Federal Tort Claims

Act. But as a prerequisite to suit under the Act . . . the claim [must] first be

presented to the appropriate federal agency and be finally denied by the agency.

This requirement is jurisdictional and cannot be waived." (emphasis added)

(citation omitted)).

---