United States District Court, W.D. Oklahoma
OPINION AND ORDER
BERNARD M. JONES UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs pro se Complaint alleging that
Defendants Shanda L. Adams and Rick Dane Moore “began
posting online that they were ‘selling'
cybercurrency.” Compl. [Doc. No. 1] at 4. Plaintiff
alleges that Defendants “are bullies and have
threatened to harm [her]. They are ‘cyber
bullies.'” Id. Plaintiff seeks a
protective order requiring Defendants “to have
absolutely no contact with [her] whatsoever under any
circumstances.” Id. Plaintiff alleges federal
question jurisdiction under the Securities and Exchange
Commission (SEC) Whistleblower Protection Program and the
False Claims Act (FCA). Id. at 3. The Court has
reviewed Plaintiffs Complaint and finds that it should be
dismissed upon filing as frivolous.
courts have the inherent power to manage their dockets.
See United States v. Schneider, 594 F.3d 1219, 1226
(10th Cir. 2010) (citing Link v. Wabash R.R. Co.,
370 U.S. 626, 630-31 (1962); United States v.
Nicholson, 983 F.2d 983, 988 (10th Cir. 1993)). This
power includes the ability to “dismiss a frivolous or
malicious action . . . even in the absence of [a] statutory
provision.” Mallard v. U.S. Dist. Court for the S
Dist. of Iowa, 490 U.S. 296, 307-08 (1989) (internal
quotation marks omitted). In considering whether to dismiss a
claim sua sponte for failure to state a claim under rule
12(b)(6) of the Federal Rules of Civil Procedure, the court
must accept as true all factual allegations in the complaint
and must draw all reasonable inferences in the plaintiffs
favor. See Hall v. Bellmon, 935 F.2d 1106, 1109
(10th Cir. 1991). In reviewing a pro se complaint, the court
applies the same legal standards applicable to pleadings that
counsel drafts, but the complaint must be liberally
construed. See Id. at 1110. However, “[t]he
broad reading of the plaintiffs complaint does not relieve
the plaintiff of alleging sufficient facts on which a
recognized legal claim could be based.” Id.; see
also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(explaining that “a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief
that is plausible on its face” (internal quotation
SEC Whistleblower Protection Program
Plaintiff seeks a protective order under the SEC
Whistleblower Protection Program. Plaintiff does not specify
federal statutes related to this program, but under federal
law, whistleblowers who report violations of securities law
are protected by the Sarbanes-Oxley Act of 2002, 116 Stat.
745 (Sarbanes-Oxley), and the 2010 Dodd-Frank Wall Street
Reform and Consumer Protection Act, 124 Stat. 1376
(Dodd-Frank). See Digital Realty Tr., Inc. v.
Somers, 138 S.Ct. 767, 772 (2018). Both Acts protect
whistleblowers in specific circumstances; but none of those
circumstances are indicated by Plaintiffs factual
passed Sarbanes-Oxley to “‘protect investors by
improving the accuracy and reliability of corporate
disclosures.'” Genberg v. Porter, 882 F.3d
1249, 1253-54 (10th Cir. 2018) (quoting 116 Stat. 745, 745).
To further this goal, Sarbanes-Oxley protects employees of
publicly traded companies who report violations of federal
securities law. 18 U.S.C. § 1514A; Genberg, 882
F.3d at 1254. Sarbanes-Oxley protects such whistleblowers by
allowing suit against the company or its officers for
employment retaliation. 18 U.S.C. § 1514A;
Genberg, 882 F.3d at 1254. Whistleblower protection
under Sarbanes-Oxley requires, among other things, a showing
that the employee engaged in protected activity and suffered
an unfavorable employment action. Genberg, 882 F.3d
at 1254; Lockheed Martin Corp. v. Admin. Review Bd, U.S.
Dep't of Labor, 717 F.3d 1121, 1129 (10th Cir.
2013). The anti-retaliation procedures under Sarbanes-Oxley
include an administrative-exhaustion requirement.
See 18 U.S.C. § 1514A(b)(1)(A); Digital
Realty Tr., Inc., 138 S.Ct. at 774-75.
passed Dodd-Frank in response to perceived shortcomings in
financial regulation, including the SEC's need for
additional means with which to regulate securities markets.
Digital Realty Tr., Inc., 138 S.Ct. at 773.
Dodd-Frank established '"a new,
robust whistleblower program designed to motivate people who
know of securities law violations to tell the SEC'”
Id. (quoting S. Rep. No. 111-176, p. 38 (2010)).
Dodd-Frank also protects whistleblowers from employment
discrimination in retaliation for providing such information.
15 U.S.C. § 78u-6; Digital Realty Tr., Inc.,
138 S.Ct. at 773-74. Unlike the initial administrative
process under Sarbanes-Oxley, the anti-retaliation procedures
under Dodd-Frank permit a whistleblower to sue a current or
former employer directly in federal district court.
See 15 U.S.C. § 78u-6(h)(1)(B)(i); Digital
Realty Tr., Inc., 138 S.Ct. at 775.
Plaintiff cites the SEC Whistleblower Protection Program as
the basis for seeking a protective order against Defendants,
neither Sarbanes-Oxley nor Dodd-Frank provides for protective
orders such as Plaintiff seeks. See 18 U.S.C. §
1514A(c); 15 U.S.C. § 78u-6(h). Moreover, though
Plaintiff attached to the Complaint a letter indicating that
she had submitted information to the SEC Whistleblower
Program, see Compl., Exh. 1 [Doc. No. 1-1],
Plaintiffs minimal statement of her claim does not allege
that such information related to a securities law violation
or that she suffered employment retaliation for providing
such information. See Compl. at 4. Indeed, Plaintiff
does not identify the Defendants as her employers,
see Compl. at 3, and the Court takes judicial notice
of prior filings by Plaintiff in which she identifies
Defendants as attorneys adverse to her. See, e.g., Jones
v. Jones, No. CIV-17-1287-HE (W.D. Okla. Nov. 30, 2017)
(Complaint at 10); Jones v. USAA Cas. Ins. Co., et
al., No. CIV-17-1324-G (W.D. Okla. Aug. 8, 2018) (Motion
to Disqualify). As such, Plaintiff has failed to allege
facts upon which relief can be granted under either
Sarbanes-Oxley or Dodd-Frank. See Fed. R. Civ. P.
False Claims Act
the FCA protects against whistleblowers in specific
circumstances, though none of those circumstances is
indicated by Plaintiff's factual allegations. The FCA
provides for civil actions by the federal government to
recover damages for false or fraudulent claims for payment.
31 U.S.C. §§ 3729-3733; United States ex rel.
Reed v. KeyPoint Gov't Sols., 923 F.3d 729, 735-36
(10th Cir. 2019). The qui tam provisions of the FCA authorize
a private person, known as a relator, to initiate FCA actions
for the benefit of the federal government by alleging that a
third party made fraudulent claims for payment to the
government. See 31 U.S.C. § 3730(b);
Reed, 923 F.3d at 736. Recognizing the risks
relators face as prospective whistleblowers, the FCA
prohibits employers from retaliating against employees who
try to stop violations of the FCA. 31 U.S.C. § 3730(h);
Reed, 923 F.3d at 736, 738. To qualify for
whistleblower protection, an employee must show that he or
she engaged in specific types of activity that qualify as
“protected activity” and faced employment
discrimination as a result of the protected activity.
Reed, 923 F.3d at 738; Potts v. Ctr. for
Excellence in Higher Educ., Inc., 908 F.3d 610, 613-14
(10th Cir. 2018).
Plaintiff cites the FCA as the basis for seeking a protective
order against Defendants, the FCA does not provide for
protective orders such as Plaintiff seeks. See 31
U.S.C. § 3730(h). Moreover, Plaintiff has failed to
plead any facts supporting an FCA claim. At minimum, she has
not alleged that Defendants made fraudulent claims for
payment, as required for a qui tam action; nor that she has
faced employment retaliation due to engaging in protected
activity, as required for a retaliation claim. Additionally,
Plaintiff filed her complaint pro se and courts that have
examined the issue have concluded that a plaintiff proceeding
pro se may not act as a relator. See, e.g., Gunn v.
Credit Suisse Group AG., 610 Fed.Appx. 155, 157 (3d Cir.
2015); Jones v. Jindal, 409 Fed.Appx. 356 (D.C. Cir.
2011); United States ex rel. Mergent Servs. v.
Flaherty, 540 F.3d 89, 93-94 (2d Cir. 2008); Timson
v. Sampson, 518 F.3d 870, 873-74 (11th Cir. 2008) (per
curiam); Stoner v. Santa Clara Cnty. Office of
Educ., 502 F.3d 1116, 1126-28 (9th Cir. 2007);
United States ex rel. Brooks v. Lockheed Martin
Corp., 237 Fed.Appx. 802 (4th Cir. 2007); United
States ex rel. Lu v. Ou, 368 F.3d 773, 775-76 (7th Cir.
2004), rev'd on other grounds, 556 U.S. 928
(2009). As such, Plaintiff has failed to allege facts upon
which relief can be granted under the FCA. See Fed.
R. Civ. P. 12(b)(6).
Plaintiff's Complaint is devoid of a factual basis for
any cognizable claim under Sarbanes-Oxley, Dodd-Frank, or the
FCA, the Court finds that it is meritless and should be
dismissed. “Dismissal of a pro se complaint for failure
to state a claim is proper only where it is obvious that the
plaintiff cannot prevail on the facts [she] has alleged and
it would be futile to give [her] an opportunity to
amend.” Perkins v. Kan. Dep't of Corr.,
165 F.3d 803, 806 (10th Cir. 1999). “Although
dismissals under Rule 12(b)(6) typically follow a motion to
dismiss . . . a court may dismiss sua sponte when it is
patently obvious that the plaintiff could not prevail on the
facts alleged, and allowing [her] the opportunity to amend
[her] complaint would be futile.” Hall, 935
F.2d at 1109-1110 (internal quotation marks omitted). Though
a district court generally should allow leave to amend when a
pro se plaintiff is close to stating a claim but is not quite
there, see id. at 1110, here Plaintiff is not close.
Moreover, Plaintiff is under filing restrictions due to her
litigation history and has been advised that, though she is
"a pro se litigant and should not be expected to
evaluate or plead potential claims with the accuracy or
specificity of someone trained in the law[, her] history of
meritless positions goes beyond what might be excused on that