                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        June 17, 2015

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
EUGENE WIDEMAN, JR.,

             Plaintiff - Appellant,

v.                                                       No. 14-1483
                                                (D.C. No. 1:14-CV-02488-LTB)
DR. WILLIAM WATSON; THE MAPLE                              (D. Colo.)
LEAF ORTHOPAEDIC CLINIC,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.


      The district court, acting sua sponte, dismissed an amended complaint

(Complaint) filed by Eugene Wideman, Jr., for lack of subject-matter jurisdiction.

The dismissal was without prejudice. Nevertheless, Wideman appeals from it.




*
       After examining appellant’s brief and the 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is not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Because his Complaint does not fairly allege a legally sufficient federal connection,

we affirm.1

      Wideman claims to have suffered an injury while working as a federal

employee, for which he received compensation under the Federal Employees

Compensation Act (FECA), 5 U.S.C. §§ 8101-8152. According to his Complaint,

Dr. William Watson and The Maple Leaf Orthopaedic Clinic were negligent in

treating his work-related injury, causing him to suffer additional physical injuries and

other damages. It further alleges Watson ultimately refused to provide further

treatment because Wideman was “difficult to treat” and “an un-treatable patient.”

R. at 4, 5. Moreover, Wideman says, Watson also failed to identify another doctor

for Wideman and withheld his medical records, which prevented him from receiving

needed medical care and medication from another provider.

      Those acts, Wideman claims, violated his First Amendment right to free

speech, his property rights under the Fourth Amendment, and his right under 5 U.S.C.

§ 8101 to receive comprehensive, continuous, and competent medical care. He

admits to having received medical care for the injuries purportedly caused by Watson

under FECA, but has not been compensated for the related pain and suffering. His

prayer for relief seeks access to his medical records and $2 million in damages.

      We review de novo a district court’s dismissal of a complaint for lack of

subject matter jurisdiction. Becker v. Ute Indian Tribe of the Uintah & Ouray
1
      This court’s jurisdiction derives from 28 U.S.C. § 1291.


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Reservation, 770 F.3d 944, 946 (10th Cir. 2014). Wideman must demonstrate how

his claims fall within the limited scope of federal jurisdiction. Id. at 947. The basis

for federal jurisdiction must appear on the face of his well-pleaded complaint. See

Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1023 (10th Cir. 2012). Wideman’s

assertion of federal subject-matter jurisdiction comes from two federal statutes,

42 U.S.C. § 1983 and 5 U.S.C. § 8101.2

      Under 28 U.S.C. § 1331, federal district courts “have original jurisdiction of

all civil actions arising under the Constitution, laws, or treaties of the United States.”

“For a case to arise under federal law within the meaning of § 1331, the plaintiff’s

well-pleaded complaint must establish one of two things: either that federal law

creates the cause of action or that the plaintiff’s right to relief necessarily depends on

resolution of a substantial question of federal law.” Firstenberg, 696 F.3d at 1023.

      Wideman’s Complaint asserts a claim under 42 U.S.C. § 1983 for violation of

his rights under the First and Fourth Amendments.3 These allegations would

ordinarily be sufficient to establish federal subject-matter jurisdiction. See Kitchen v.

Herbert, 755 F.3d 1193, 1208 n.3 (10th Cir.), cert. denied, 135 S. Ct. 265 (2014).

But “jurisdiction under § 1331 exists only where there is a ‘colorable’ claim arising

2
      We treat Wideman’s reference to “42 U.S.C. § 8101” as an attempt to cite
5 U.S.C. § 8101, a provision of FECA.
3
       Ordinarily, we liberally construe a pro se party’s complaint. See Firstenberg,
696 F.3d at 1024. We assume, without deciding, the same liberal-construction
principles apply to this jurisdictional inquiry. See id.



                                           -3-
under federal law.” McKenzie v. USCIS, 761 F.3d 1149, 1156 (10th Cir. 2014),

cert. denied, 135 S. Ct. 970 (2015). “A claim can be meritless while still being

colorable, but a court may dismiss for lack of subject-matter jurisdiction when the

claim is so insubstantial, implausible, foreclosed by prior decisions of [the Supreme

Court], or otherwise completely devoid of merit as not to involve a federal

controversy[.]” Id. (citation and internal quotation marks omitted).4

       “A § 1983 claim requires a plaintiff to show both the existence of a

federally-protected right and the deprivation of that right by a person acting under

color of state law.” Wittner v. Banner Health, 720 F.3d 770, 773 (10th Cir. 2013)

(citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982)). Indeed, courts

cannot enforce a federal constitutional right as against a private actor. See Hill v.

Kemp, 478 F.3d 1236, 1256 (10th Cir. 2007). Here, Wideman’s Complaint does not

allege defendants are state actors or were otherwise acting under color of state law.

Nothing in the Complaint indicates either defendant is anything other than a private

medical provider. Absent an allegation of action under color of state law, Wideman’s

§ 1983 cause of action is “so patently without merit as to justify the court’s dismissal



4
       We disagree with the district court’s reasoning in holding that the court lacked
subject-matter jurisdiction over Wideman’s Complaint because it failed to state a
claim upon which relief can be granted. See Bell v. Hood, 327 U.S. 678, 682 (1946)
(“Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail
to state a cause of action on which petitioners could actually recover. For it is well
settled that the failure to state a proper cause of action calls for a judgment on the
merits and not for a dismissal for want of jurisdiction.”).


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for want of jurisdiction.” McKenzie, 761 F.3d at 1156 (internal quotation mark

omitted).

      Moreover, even if we liberally construe the Complaint as attempting to allege

a constitutional-violation claim under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), that claim is also subject to

dismissal for lack of federal subject-matter jurisdiction. Such a claim is patently

meritless because Wideman does not allege any facts indicating either of the

defendants is a federal officer or was acting “under color of federal law or

authority,” as required for a Bivens action. Dry v. United States, 235 F.3d 1249,

1255 (10th Cir. 2000).

      Wideman’s Complaint also cites FECA as a basis for federal subject-matter

jurisdiction. FECA defines the United States’ exclusive liability for claims by

federal employees for work-related injuries. See 5 U.S.C. §§ 8102(a), 8116(c); see

also Farley v. United States, 162 F.3d 613, 615 (10th Cir. 1998). Wideman asserts

he has a cause of action against defendants under § 8101. But that section defines the

terms used in the statute; it does not provide for a cause of action in federal court.

See 5 U.S.C. § 8101. Rather, injured federal employees seeking compensation from

the United States must file a written claim with the Secretary of Labor, as provided in

5 U.S.C. § 8121. And compensation under FECA is paid solely from the United

States’ Treasury. See id. § 8147 (providing for payment of compensation under

FECA from the Employees’ Compensation Fund). Within these parameters, FECA


                                          -5-
indisputably does not create a federal cause of action for an injured federal employee

against a private medical provider. Thus, the claim purportedly asserted under

§ 8101 “does not present a colorable claim arising under federal law.” McKenzie,

761 F.3d at 1157 (holding complaint failed to present a colorable federal claim where

federal regulation did not create a private cause of action).

      In the absence of a cause of action created by federal law, Wideman can

establish federal subject-matter jurisdiction only if his state-law claims present a

substantial question of federal law. See Becker, 770 F.3d at 947. He “must show that

a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and

(4) capable of resolution in federal court without disrupting the federal-state balance

approved by Congress.” Id. (internal quotation marks omitted). This narrow branch

of federal-question jurisdiction requires more than “the mere presence of a federal

issue in a state cause of action.” Id.

      Wideman’s Complaint alleges defendants were negligent in treating his

work-related injury.5 To bring a state-law medical malpractice claim he must show

“(1) the plaintiff suffered injuries, losses, and damages; (2) the defendant was

negligent; and (3) the defendant’s negligence caused the plaintiff’s injuries, damages,

and losses.” Hartmann v. Nordin, 147 P.3d 43, 51-52 (Colo. 2006). Wideman

further asserts he is entitled under § 8101 of FECA “to medical care that will bring

[him] back to a state [of] health as close as possible to what [he] enjoyed prior to
5
      According to the Complaint, all parties are Colorado residents.


                                           -6-
[his] accident.” R. at 4. And he claims § 8101 entitles him “to [whatever] medical

devi[c]es and medication [he] need[s].” Id. at 5. According to Wideman, Watson’s

treatment failed to meet the federal statutory standards he alleges.

       These allegations are not sufficient to invoke federal-question jurisdiction.

The first two considerations are met: a federal issue is necessarily raised—whether

FECA requires physicians treating federal employees for work-related injuries to

meet the standard of care Wideman alleges—and we assume defendants would

dispute that issue. See Gilmore v. Weatherford, 694 F.3d 1160, 1173 (10th Cir.

2012). But the federal issue does not appear to be “substantial,” and even if it were,

federal jurisdiction would disrupt the federal-state balance approved by Congress.

See id. at 1173-76.

       We assess different factors in determining whether a federal issue is

“substantial.” See id. Here, the private nature of the dispute and the lack of a direct

interest by the United States weigh against finding a substantial federal question. See

id. at 1174-75. In addition, a federal standard of care is not an essential element of

Wideman’s state-law negligence claim. See id. at 1175 (noting in that case plaintiffs

could succeed on their state-law claim only if defendants failed to meet federal

requirements). But even if the federal question Wideman raises were substantial, “[a]

general rule of exercising federal jurisdiction over state claims resting on federal . . .

statutory violations would . . . herald[] a potentially enormous shift of traditionally

state cases into federal courts.” Grable & Sons Metal Prod., Inc. v. Darue Eng’g &


                                           -7-
Mfg., 545 U.S. 308, 319 (2005). Thus, in the absence of a federal cause of action, the

type of federal issue raised in Wideman’s Complaint does not provide a basis for

federal court jurisdiction. See id. at 318-19. The district court did not err in

dismissing Wideman’s Complaint for lack of federal subject-matter jurisdiction.

      Affirmed.

                                                Entered for the Court


                                                Terrence L. O’Brien
                                                Circuit Judge




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