The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
DENISE JACKSON,
DECISION AND ORDER
Plaintiff,
19-CV-6765L
v.
OFFICE OF PERSONNEL MANAGEMENT,
Defendant.
___________________________________________
The pro se plaintiff in this case, Denise Jackson, filed a complaint and an application to
proceed in forma pauperis (“IFP”) on October 15, 2019. After reviewing the complaint pursuant to
28 U.S.C. § 1915(e)(2)(B), the Court dismissed the complaint without prejudice, based on the
complaint’s failure to state a claim. The Court also denied the IFP application because plaintiff’s
incompletely filled out IFP application form did not demonstrate economic need. (Dkt. #3.)
Regarding the complaint, the Court stated that “the plaintiff’s complaint does not merely fail
to state a claim; it fails to state anything at all.” Other than the names of the parties and a statement
that plaintiff wanted the Court to “[m]ake sure there is no Fraud on [some unspecified] policy” and
to “give to Right person,” the complaint gave no indication of what the claim is or what the case is
even about. The Court gave plaintiff leave to replead, and explained that if plaintiff did file an
amended complaint, it should contain a statement of alleged facts and the legal basis for plaintiff’s
claim.
Plaintiff filed an amended complaint, together with another IFP application. The Court
granted the IFP application on April 7, 2021, and summonses were issued to the U.S. Office of
Personnel Management (“OPM”), the U.S. Attorney, and the U.S. Attorney General. (Dkt. #6.)
On July 29, 2021, OPM filed a motion to dismiss the complaint for lack of subject matter
under Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Dkt. #11.) Plaintiff has not responded
to the motion. For the following reasons, defendant’s motion is denied, but the complaint is
dismissed.
As explained below, the amended complaint is so bare-bones that it is difficult to determine
the precise nature or basis of the claim. But since OPM has moved to dismiss for lack of subject
matter jurisdiction, which is a threshold matter in every case, the Court addresses that issue first.
Defendant construes the complaint as asserting a claim concerning the proceeds of a life
insurance policy issued to Willa Mae Allen, who worked for the United States Postal Service from
1967 to 1975, when she began receiving disability annuity payments. Defendant states that in 2009,
OPM received a designation of beneficiary form from Allen designating two beneficiaries, neither
of whom is the plaintiff. Allen died in March 2018.
Defendant contends that the complaint must be dismissed because it arises under the Federal
Employees’ Group Life Insurance Act, 5 U.S.C. § 8701 et seq., and Congress has not waived the
United States’ sovereign immunity with respect to such claims. While that is a correct statement of
the law, at this point it is impossible to determine whether the instant complaint is subject to
dismissal on that ground, because the complaint itself does not show that plaintiff’s claim is as
described by defendant. The complaint says nothing about where Allen worked, or about any
specific life insurance policy. Those facts are alleged by defendant in their motion papers.
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Though the Court has no reason to doubt the truth of defendant’s factual assertions, that does
not mean that I can assume them to be true at this juncture. Although on a motion to dismiss for lack
of subject matter jurisdiction under Rule 12(b)(1) a district court may refer to evidence outside the
pleadings, see Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000), at this point the facts
relied on by defendant are contained only in OPM’s attorney’s declaration and memorandum of law.
If the facts are as described by defendant, then it appears the complaint would have to be dismissed
for lack of subject matter jurisdiction for the reasons stated in OPM’s motion, but at this point the
Court cannot make that determination based on the record before me.
That does not save the complaint from dismissal, however. Under 28 U.S.C. § 1915(e)(2),
“the court shall dismiss the case at any time if the court determines that ... the action ... is frivolous
or malicious; fails to state a claim on which relief may be granted; or
seeks monetary relief against a defendant who is immune from such relief.” (Emphasis added;
formatting altered for clarity.) See also Strauss v. Kentucky Board of Medical Licensure,
19-CV-6537, at *5, 2020 WL 1493963, at *5 (W.D.N.Y. Mar. 26, 2020) (dismissing pro se
complaint under that standard). It is plain that the complaint here must be dismissed for failing to
state a claim upon which relief may be granted.
Even given the most generous construction, the amended complaint represents, at best, only
a marginal improvement over the initial complaint. Where the complaint form asks for “Basis of
Jurisdiction in Federal Court,” plaintiff states, “giving the Voluntary Administration find [sic] about
Policy Insurance to inherit.”1 Under “Nature of Suit,” she states, “Policy Insurance Fund and value
on it.” (Dkt. #4 at 1.)
1 The final word in that sentence is nearly illegible, but it appears to be “inherit.”
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In the “Statement of Claim” section of the form, plaintiff states that the defendant is “Office
of Personnel Management, Agency,” but where the form directs the litigant to state what the
defendant is alleged to have done, plaintiff left that portion completely blank. She states that the
federal basis for the claim is “about Insurance,” and that for relief she is “seeking the Insurance fund
of Willa Mae Allen who is deceased, she is Aunt, her niece.” Id. at 4. Under “Summary of Relief
Sought,” plaintiff writes, “Seeking to collect the Insurance policy.” Id. at 5.
The above recitation is not a summary of the contents of the complaint; it is the contents of
the complaint, other than the parties’ names and addresses.
That is wholly insufficient to state a claim. The complaint literally contains no allegations
about anything that happened, much less shows that plaintiff is or even might be entitled to relief.
All that can be gleaned is that the claim relates to some insurance policy for Willa Mae Allen, who
was allegedly plaintiff’s aunt. There is no explanation whatsoever for why plaintiff is bringing this
claim against OPM, or what connection OPM has to any of this.
As the Court stated with respect to the initial complaint, “the complaint does not contain a
cogent factual statement of any kind, let alone ‘enough facts to state a claim to relief that is plausible
on its face.’” (Dkt. #3 at 3) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That
is as true of the amended complaint as it was of the original complaint, and the complaint is therefore
dismissed.
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CONCLUSION
Defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1) (Dkt. #11) is denied.
The complaint is dismissed for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915(e)(2)(B).
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 13, 2021.
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