* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 16 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN JOSEPH WILLIAMS, Plaintiff-Appellant,

v. UNITED STATES OF AMERICA; TOM S. UDALL, Congressman; NORMAN E. BROWNE; DR. JEFFREY KATZMAN; DR. THERESA MOYERS; 10 UNKNOWN DOES, Defendants-Appellees. No. 02-2133 (D. New Mexico) (D.C. No. CIV-01-694-WJ/DJS)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is1 The district court issued two separate orders of di smissal: one addressed

the claims against the United States, Mr. Browne, D rs. Katzman and Moyers, and the ten “Unknown Does”; the other addressed the cla im against Congressman Udall. Mr. Williams seeks review of both dismissal s. -2- therefore ordered submitted without oral argument. John Williams appeals the district court dismissal with prejudice of his pro se complaint for lack of subject matter jurisdictio n and failure to state a claim upon which relief can be granted. 1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We review de novo the dismissal of a complaint for lack of subject m atter jurisdiction, King v. United States, 301 F.3d 1270, 1273 (10th Cir. 2002), and failure to state a claim upon which relief can be g ranted, Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). In the latte r instance, “all well-pleaded allegations in the . . . complain t are accepted as true and viewed in the light most favorable to the nonmoving party. ” Id. (quotation marks and citation omitted). While we are obligated to “libe rally construe the allegations of a pro se complaint,” Hunt v. Uphoff, 199 F.3d 1220, 1223 (10th Cir. 1999) (citation omitted), we cannot rely on “conclusory a llegations” to sustain it, Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). Nor can we “supply additional factual allegations to round out a plain tiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. State of N.M., 113 F.3d 1170,-3-

1173-74 (10th Cir. 1997). Mr. Williams filed a seventy-three count complaint alleging the Defendants committed various federal statutory and constitutio nal violations stemming from his overnight involuntary detention in the psychiat ric ward of the Veterans Administration (V.A.) Medical Center in Albuquerque , New Mexico on October 14, 1999. He also asserts the Defendants conspiredto deprive him of mental health treatment outside of the V.A. system. The district court correctly relied on the doctrine of sovereign immunity and dismissed all claims against the United States for lack of jurisdiction. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477 (1994) (barring suits for constitutional torts alleged against the government ); Federal Tort Claims Act, 28 U.S.C. § 2680(h) (providing no cause of action agai nst the United States “arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation , deceit, or interference with contract rights”). We agree with the reasoning of the district court that, fairly construed, Mr. Williams’s complaints against the Un ited States rest alternatively on these two theories, and fail for want of jurisdi ction. Against the federal officials, Mr. Williams in effe ct alleged constitutional torts underBivens v. Six Unknown Named Agents of Federal Bure au of Narcotics, 403 U.S. 388, 389 (1971) (styled in many instances as alleged civil rights-4-

violations under 42 U.S.C. §§ 1985(3) and 1986), to gether with non-constitutional torts under the Federal Tort Claims Act. The distr ict court dismissed the constitutional tort and statutory civil rights clai ms for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b) (6). A careful review of the record, which is replete with attenuated and conclu sory allegations, sustains this decision. We agree with the district court that on e cannot construe Mr. Williams’s overnight detention as an intentional vi olation of his constitutional rights at the hands of federal officials. Nor can we identify any facts to suggest these officials conspired in any way to deny Mr. Wi lliams access to or funding for therapy outside the V.A. system. In particular, Mr . Williams’s personal conflict with Representative Udall has no remedy at law with out a cognizable, factually supported cause of action, not present here. Also, the district court correctly dismissed the claims brought under the Federal TortClaims Act for lack of jurisdiction because such claims are properly brought only against the United States and not against individual officers of the U nited States. 28 U.S.C. § 2679(b)(1) and (d)(1). The district court rightly dismissed the claims aga inst the ten Unknown Does for failure to factually connect any of them t o a cause of action, and correctly disposed of all remaining motions filed b y Mr. Williams as being moot in light of the dismissal of his claims.-5-

Mr. Williams complains on review he was not given an opportunity to amend his pleadings in order to survive a dismissal . But refusal to grant leave to amend is an exercise of discretion, Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999), not abused he re. Even sua sponte dismissals without notice of opportunity to amend are permitted in instances, like this one, where it is “patently obvious that the pl aintiff could not prevail on the facts alleged, . . . and allowing him an opportunity to amend his complaint would be futile . . . .” McKinney v. State of Okla., Dep’t. of Human Servs., Shawnee, OK, 925 F.2d 363, 365 (10th Cir. 1991) (quotation marks and citations omitted). Last, we reject Mr. Williams’s submission of supple mentary authority under Fed. R. App. P. 28(j) because it consists of additi onal factual allegations rather than legal authority, as required by the rule.
We AFFIRM the judgment of the district court. Entered by the Court: TERRENCE L. O’BRIEN United States Circuit Judge