                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 5, 2009
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                  TENTH CIRCUIT                     Clerk of Court



 STEVEN LEE CRAIG,

      Plaintiff - Appellant,

 v.                                                      No. 09-6082
                                                   (D.C. No. CV-09-343-F)
 UNITED STATES OF AMERICA,                               (W.D. Okla.)

      Defendant - Appellee.




                               ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


        Plaintiff-Appellant Steven Lee Craig appeals from the district court’s

dismissal of his claims against the United States. Exercising jurisdiction pursuant

to 28 U.S.C. § 1291 and affording solicitous consideration to Mr. Craig’s pro se

filings, see Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we

affirm the district court’s order insofar as it dismisses the action, but we remand

to the district court to modify the dismissal to be without prejudice.


        *
             This Order and Judgment is not binding precedent, except under the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. After examining the Plaintiff’s brief and the appellate record, this
three-judge panel has determined unanimously that oral argument would not be of
material assistance in the determination of this appeal. See Fed. R. App. P. 34(a).
The case is therefore ordered submitted without oral argument.
                                 BACKGROUND

      The district court granted in forma pauperis status to Mr. Craig at the time

he filed his first pro se complaint against the United States, in which he alleged a

violation of his civil rights under 42 U.S.C. § 1983. The district court sua sponte

dismissed this first complaint as frivolous and advised Mr. Craig that he could

seek leave to amend his complaint. Mr. Craig then filed a motion for leave to

amend and submitted a proposed amended complaint. The district court denied

leave to amend. Alternatively, it deemed Mr. Craig’s amended complaint to be

filed. The court then sua sponte dismissed the action with prejudice for lack of

subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a

claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). The

district court entered judgment for the United States, and Mr. Craig now appeals. 1

      As explained by the district court, Mr. Craig’s first complaint and his

proposed amended complaint—as well as his motion for declaratory judgment and

motion for class certification—primarily addressed the alleged distinction

      1
              Although it is not entirely clear from the district court’s docket, it
appears that the United States was not properly served with the first complaint.
Although a party proceeding in forma pauperis is entitled to have the summons
and complaint served by a marshal or an officer of the court, see Fed. R. Civ. P.
4(c)(3), the district court advised Mr. Craig that he need not serve the amended
complaint on the United States in light of the dismissal of the action. See R., Vol.
I, Doc. 13, at 6 n.2. The district court dismissed the case prior to the expiration
of the deadline for service, which is 120 days after the filing of the complaint.
See Fed. R. Civ. P. 4(m). Thus, the United States has not been served and has not
appeared as a party in this case. Cf. Farmer v. Perrill, 275 F.3d 958, 960 n.2
(10th Cir. 2001) (noting that it was permissible to extend judgment of dismissal to
unserved, nonappearing defendants when claims against those defendants were
barred).

                                         -2-
between the rights of citizenship that attach to naturalized citizens and those that

attach to natural-born citizens. Mr. Craig asserted that he, as a “Legacy,” or

natural-born citizen, suffered from discrimination due to “exclusion of

distinctions” and “omission of acknowledgement” due to Congress’s failure to

enact laws recognizing this distinction, whereas it has enacted laws defining the

requirements to become a naturalized citizen. R., Vol. I, Doc. 11 Attach. 1 at III-

IV, VII. Mr. Craig thus sought redress in the form of a declaratory judgment

defining “natural born Citizen,” as it appears in art. II, § 1, cl. 4 of the

Constitution, and providing a means for citizens bearing that moniker to obtain

certification of that fact from the federal government, as well as punitive

damages. R., Vol. I, Doc. 11 Attach. 1 at I-II, X.

      Though it is somewhat difficult to distill Mr. Craig’s arguments on appeal,

he continues to assert that due to the lack of a legal definition for natural-born

citizen, the existence of citizens who are naturally born, as understood by the

Constitution’s Framers, is no longer acknowledged. According to Mr. Craig, this

has resulted in the “involuntary expatriation” of those whom he believes fall into

this category of citizens. Mr. Craig argues that the definition is knowable, and he

proffers a definition from a 1758 Swiss philosophical treatise. He further argues

that the district court should legally define “natural born Citizen” in an effort to

prevent the deprivation of citizenship legacy, as contemplated by the Constitution,

and the diminution of his and purported class members’ “rights and intrinsic

property as . . . multi-generational citizen[s].” Aplt. Opening Br. at 15.

                                     DISCUSSION

      The district court denied Mr. Craig’s request for leave to file an amended


                                           -3-
complaint because it determined that the proposed amended complaint would still

be jurisdictionally defective. We generally review the district court’s denial of

leave to amend for abuse of discretion. Merida Delgado v. Gonzales, 428 F.3d

916, 921 (10th Cir. 2005). “Where the decision was based on futility of

amendment, however, we review de novo whether the complaint, as amended,

would withstand a jurisdictional challenge.” Id. Here, as discussed in greater

detail below, Mr. Craig’s amended complaint does not withstand a jurisdictional

challenge.

      We agree with the district court that even if the amended complaint were

deemed filed, dismissal of this action would be proper. Although we construe a

pro se litigant’s pleadings liberally, parties proceeding pro se must follow the

same procedural rules that govern other litigants. Kay v. Bemis, 500 F.3d 1214,

1218 (10th Cir. 2007). “If the court determines at any time that it lacks subject-

matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

Federal courts have a duty to determine their own jurisdiction whether or not the

parties raise the issue. Tuck v. United Servs. Auto. Ass’n, 859 F.2d 842, 844 (10th

Cir. 1988). In reviewing the sufficiency of a complaint under Fed. R. Civ. P.

12(b)(1) for lack of subject-matter jurisdiction, the court “must accept the

allegations in the complaint as true.” Holt v. United States, 46 F.3d 1000, 1002

(10th Cir. 1995).

      The district court correctly determined that it lacked subject-matter

jurisdiction over this case. Where a complaint seeks recovery directly under the

Constitution or the laws of the United States, an exception to subject matter

jurisdiction lies when “‘such a claim is wholly insubstantial and frivolous.’” See


                                         -4-
Davoll v. Webb, 194 F.3d 1116, 1129 (10th Cir. 1999) (quoting Bell v. Hood, 327

U.S. 678, 682-83 (1946)); accord Steel Co. v Citizens for a Better Envt., 523 U.S.

83, 89 (1998) (“Dismissal for lack of subject-matter jurisdiction because of the

inadequacy of the federal claim is proper only when the claim is so insubstantial,

implausible, foreclosed by prior decisions of this Court, or otherwise completely

devoid of merit as not to involve a federal controversy.” (internal quotation marks

omitted)).

      In Cardtoons, L.C. v. Major League Baseball Players Ass’n, we explained

that “[d]ismissal of a complaint for lack of subject matter jurisdiction would only

be justified if ‘that claim were so attenuated and unsubstantial as to be absolutely

devoid of merit’ or ‘frivolous.’” 95 F.3d 959, 965 (10th Cir. 1996) (quoting

Baker v. Carr, 369 U.S. 186, 199 (1962)). Having carefully reviewed Mr. Craig’s

amended complaint, we find that it is “very plain,” Baker, 369 U.S. at 199, that

his “alleged claim under the Constitution or federal statu[t]es” falls within this

“wholly insubstantial and frivolous” category such that federal jurisdiction is not

extant. See Davoll, 194 F.3d at 1129.

      Mr. Craig has no legally cognizable right to be deemed “the First Legally

recognized ‘Natural Born American Citizen’” or “the Last” of them. R., Vol. I,

Doc. 11 Attach. 1, at VII. Mr. Craig’s amended complaint does not describe any

unlawful discrimination that he has suffered or will suffer due to the allegedly

“extensive opportunities of immigrants and naturalized citizens to obtain, protect




                                         -5-
and preserve their status.” 2 Id. at IV. Even liberally construed, Mr. Craig’s claim

is not grounded in a constitutional or federal question: there is no such “right” (a)

to have courts adopt his proffered legal definition, (b) to be classified as a citizen

pursuant to that definition, or (c) to obtain certification of the status he attempts

to define.

      Insofar as Mr. Craig is attempting to assert a deprivation of due process, an

Eighth Amendment argument (i.e., that he is being unlawfully denationalized or

expatriated), or another constitutional violation there is no indication from his

complaint that he is being deprived of his citizenship or rights thereof—only that

      2
             In any case, the Supreme Court long has rejected the notion that
naturalized citizens may or should possess rights different from those of other
citizens under the law:

            We start from the premise that the rights of citizenship of the native
      born and of the naturalized person are of the same dignity and are
      coextensive. The only difference drawn by the Constitution is that only the
      “natural born” citizen is eligible to be President. Art. II, § 1.

             While the rights of citizenship of the native born derive from §
      1 of the Fourteenth Amendment and the rights of the naturalized
      citizen derive from satisfying, free of fraud, the requirements set by
      Congress, the latter, apart from the exception noted, “becomes a
      member of the society, possessing all the rights of a native citizen,
      and standing, in the view of the constitution, on the footing of a
      native. The constitution does not authorize Congress to enlarge or
      abridge those rights. The simple power of the national Legislature, is
      to prescribe a uniform rule of naturalization, and the exercise of this
      power exhausts it, so far as respects the individual.”

Schneider v. Rusk, 377 U.S. 163, 165-66 (1964) (quoting Osborn v. Bank of U.S.,
22 U.S. (9 Wheat.) 738, 827 (1824)); see also Osborn, 22 U.S. (9 Wheat.) at 827-
28 (“[The naturalized citizen] is distinguishable in nothing from a native citizen,
except so far as the constitution makes the distinction. The law makes none.”).

                                          -6-
he wishes to receive a specifically defined status as a certain type of citizen

bearing the “legacy” designation that he has devised. Cf. Heffington v. Bush, No.

09-3052, 2009 WL 1803282, at *1 (10th Cir. June 25, 2009) (holding that the

district court lacked subject-matter jurisdiction over plaintiff’s claims where they

were both insubstantial and barred for various reasons). Thus, Mr. Craig’s claim

is sufficiently attenuated, insubstantial, and frivolous that the district court’s

dismissal of this case under Fed. R. Civ. P. 12(b)(1) was not in error. See

Cardtoons, 95 F.3d at 965; see, e.g., Kroll v. Finnerty, 242 F.3d 1359, 1362,

1365-66 (Fed. Cir. 2001) (holding that plaintiff’s sole basis for alleging federal

jurisdiction was so unfounded and devoid of merit as to warrant dismissal for lack

of subject-matter jurisdiction).

      Moreover, there are other flaws in Mr. Craig’s demonstration of subject-

matter jurisdiction that warrant dismissal of his case. For example, we agree with

the district court that the amended complaint did not present a “case or

controversy” within the meaning of Article III of the Constitution. “One of the

most important doctrines within” this case or controversy requirement is the

doctrine of standing, which “focuses upon whether a particular litigant is entitled

to have a federal court decide the merits of the particular dispute.” Raiser v.

United States, 325 F.3d 1182, 1183 (10th Cir. 2002). To satisfy Article III’s

standing requirements, the plaintiff bears the burden of demonstrating:

             (1) it has suffered an “injury in fact” that is (a) concrete and
             particularized and (b) actual or imminent, not conjectural or
             hypothetical; (2) the injury is fairly traceable to the challenged
             action of the defendant; and (3) it is likely, as opposed to
             merely speculative, that the injury will be redressed by a

                                          -7-
             favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,

180-81 (2000). According to Mr. Craig, the fact that no citizen has claimed the

status of citizenship by virtue of being naturally born is itself a case or

controversy, and the deprivation of legacy citizenship constitutes a cognizable

penalty (i.e., injury). However, as suggested by the discussion above, Mr. Craig’s

contentions actually are bottomed on the notion he has not been given a

specifically defined citizenship status, not that he has been deprived of identified

and concrete citizenship rights contemplated by the Constitution and other federal

law. Such contentions do not demonstrate an injury in fact sufficient to establish

standing; consequently, the district court appropriately determined that it lacked

subject-matter jurisdiction over the claims in Mr. Craig’s amended complaint.

      The district court additionally determined that the amended complaint

failed to state a claim upon which relief could be granted, see Fed. R. Civ. P.

12(b)(6), and so it dismissed Mr. Craig’s case with prejudice. See Brereton v.

Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with

prejudice is appropriate where a complaint fails to state a claim under Rule

12(b)(6) and granting leaving to amend would be futile.”). Because the court

lacked jurisdiction to consider the merits of the case, however, it was precluded

from making this merits-based determination, and dismissal with prejudice was

improper. Id. at 1218 (“[D]ismissals for lack of jurisdiction should be without

prejudice because the court, having determined that it lacks jurisdiction over the

action, is incapable of reaching a disposition on the merits of the underlying

                                          -8-
claims. A suit dismissed for lack of jurisdiction cannot also be dismissed ‘with

prejudice’; that’s a disposition on the merits, which only a court with jurisdiction

may render.” (citation, parentheses, and internal quotation marks omitted)); Fed.

R. Civ. P. 41(b); cf. Heffington, 2009 WL 1803282, at *1 (remanding for district

court to dismiss without prejudice). Mr. Craig’s failure to show that his

complaint could be amended to establish subject-matter jurisdiction, “while

justifying the denial of leave to amend his complaint” and the dismissal of this

action, “did not justify the entry of a dismissal with prejudice.” Brereton, 434

F.3d at 1219.

                                  CONCLUSION

      For the reasons outlined above, we AFFIRM the substance of the district

court’s order, but VACATE the portion of it that refers to the dismissal as being

with prejudice. We REMAND to the district court with instructions to dismiss

the case without prejudice for lack of jurisdiction. Mr. Craig’s pending motions




                                         -9-
are DENIED as moot. 3




                                              Entered for the Court




                                              Jerome A. Holmes
                                              Circuit Judge




      3
             In his appellant brief and in two separate documents, Mr. Craig
moves this court to suspend the district court’s local rules, an act he appears to
believe would permit him to file a second amended complaint, which he also
submitted. In light of our disposition of this case, we deny these motions as
moot. In any event, based upon our review of the proposed second amended
complaint, we are confident that allowing Mr. Craig leave to file yet another
incarnation of his complaint would be futile. See Anderson v. Merrill Lynch
Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008) (“A proposed
amendment is futile if the complaint, as amended, would be subject to dismissal.”
(internal quotation marks omitted)).

                                       -10-
