* This order and judgment is not binding precedent, except under the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 judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 26 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN CALON,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No. 98-3190

(D.C. No. 97-CV-2600-GTV)

(D. Kan.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and 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.
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Plaintiff, appearing pro se, appeals the district court’s dismissal of this

action for lack of jurisdiction. Reviewing the district court’s decision de novo,

see Ordinance 59 Ass’n v. United States Dep’t of Interior Secretary , 163 F.3d

1150, 1152 (10th Cir. 1998), and liberally construing plaintiff’s pleadings, see,

e.g. , Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam), we affirm in

part, reverse in part and remand for further proceedings.

Plaintiff challenges the administrative law judge’s denial of his application

for disability benefits and supplemental security income. Because plaintiff failed

to exhaust his administrative remedies, see Bowen v. City of New York , 476 U.S.

467, 472, 482 (1986), we do not have jurisdiction to consider the merits of this

claim. See Mathews v. Eldridge , 424 U.S. 319, 327 (1976). The circumstances of

this case do not suggest exhaustion should be waived. See generally Bowen , 476

U.S. at 482-83 (discussing factors that may excuse claimant’s failure to exhaust

administrative remedies). 

Plaintiff also seeks Social Security funds to pay for his euthanasia and

burial. Because he failed to allege that he presented this specific claim to the

Social Security Administration (SSA), we lack jurisdiction to consider it. See

Eldridge , 424 U.S. at 326-28. Even if he did assert this claim to the SSA, his

failure to exhaust his administrative remedies would also foreclose our review of

this claim. 
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In addition to these claims for Social Security benefits, however, plaintiff

also asserts several causes of action independent from the administrative

entitlement proceedings. Although the district court did not specifically address

these causes of action, we will still affirm their dismissal, but only if 

it is obvious that the plaintiff cannot prevail on the facts he has

alleged and it would be futile to give him an opportunity to amend. 

In determining whether dismissal is proper, we must accept the

allegations of the complaint as true and we must construe those

allegations, and any reasonable inferences that might be drawn from

them, in the light most favorable to the plaintiff. Further, we must

liberally construe the allegations of a pro se complaint. See Haines

v. Kerner , 404 U.S. [at] 520-21. 

 

Perkins v. Kansas Dep’t of Corrections , 165 F.3d 803, 806 (10th Cir. 1999)

(further citations omitted). 

Plaintiff alleges that the SSA refused to provide him with his records. 

Under the Freedom of Information Act (FOIA), see 5 U.S.C. § 552, and the

Privacy Act, see 5 U.S.C. § 552a, plaintiff may assert a cause of action to obtain

SSA records, independent of any claim for entitlement of benefits. See also, e.g. ,

20 C.F.R. §§ 401.35, 401.130. Furthermore, liberally construing his pleadings,

plaintiff’s allegations that he has exhausted the applicable administrative

remedies are sufficient to withstand summary dismissal with prejudice. Cf.

Taylor v. United States Treasury Dep’t , 127 F.3d 470, 476-78 (5th Cir. 1997)

(failure to exhaust administrative remedies justified dismissing Privacy Act claim

without prejudice); Taylor v. Appleton , 30 F.3d 1365, 1367-68, 1370 (11th Cir.
1 The Assisted Suicide Funding Restriction Act of 1997, see 42 U.S.C.

§§ 14401-14408 (Supp. 1998), does preclude expenditure of federal funds for

assisted suicide. Because plaintiff has not established any basis for his

entitlement to federal funds for this purpose, this federal statute is not implicated

in this case.

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1994) (same holding with regard to FOIA claim). The district court, therefore,

erred in summarily dismissing this claim for relief. 

Plaintiff also seeks an exception from state and federal laws prohibiting

assisted suicide. He does not identify, and we have not found, any such federal

law. 1 

Liberally construing his pleadings, plaintiff further alleged a federal

constitutional challenge to state laws prohibiting assisted suicide, apparently

based upon the First Amendment’s Free Exercise Clause. That allegation,

however, fails to state a claim for relief. See Shaffer v. Saffle , 148 F.3d 1180,

1181-82 (10th Cir.), cert. denied , 119 S. Ct. 520 (1998) (law that is

religion-neutral and generally applicable does not violate Free Exercise Clause,

despite incidental effect on religious practice). 

Further, the “‘right’ to assistance in committing suicide is not a

fundamental liberty interest protected by the Due Process Clause.” Washington v.

Glucksberg , 521 U.S. 702, 728 (1997); see also id. (further holding Washington’s

ban on assisted suicide was rationally related to several legitimate state interests). 

Nor does a state law making it “a crime to aid another to commit or attempt
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suicide, but [allowing] patients [to] refuse . . . lifesaving medical treatment,”

violate the Equal Protection Clause. Vacco v. Quill , 521 U.S. 793, 796-97 (1997)

(footnote omitted). Any other federal constitutional basis plaintiff may have

attempted to plead is too vague, even with a liberal construction, to present the

requisite federal question that would enable plaintiff to invoke the subject matter

jurisdiction of the federal courts under 28 U.S.C. § 1331. See Martinez v. United

States Olympic Comm. , 802 F.2d 1275, 1280 (10th Cir. 1986) (complaint must

identify statutory or constitutional bases under which claim arises, and allege

sufficient facts to show claim arises under federal law).

Plaintiff, however, may be able to amend his pleadings to allege a state law

cause of action challenging state laws prohibiting assisted suicide sufficient to

withstand summary dismissal. See, e.g. , Krischer v. McIver , 697 So.2d 97, 99,

100, 104 (Fla. 1997); Donaldson v. Lungren , 2 Cal. App. 4th 1614, 1618-19,

1622-24 (Cal. Ct. App. 1992). We, therefore, remand his claim challenging state

laws prohibiting assisted suicide, to the extent it can be construed to allege a state

law theory of recovery, for the district court to amend its dismissal to be without

prejudice. See, e.g. , Clymore v. United States , 164 F.3d 569, 571 (10th Cir.

1999).

Dismissal of these possible state law grounds for relief without prejudice is

proper, despite our remand of plaintiff’s federal claim seeking his SSA records,
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and despite 28 U.S.C. § 1367's grant of supplemental jurisdiction, which would

permit the district court, in the exercise of its discretion, to consider state law

claims that are sufficiently related to a pending federal claim. Plaintiff’s possible

state law causes of action challenging state laws prohibiting assisted suicide do

not state any claim that is “so related” to his claim for his SSA records “that they

form part of the same case or controversy.” 28 U.S.C. § 1367(a); see also City of

Chicago v. International College of Surgeons , 522 U.S. 156, 164-66, 172 (1997). 

Next, plaintiff seeks a protective order “preventing the State of Missouri or

anyone else for that matter from attempting to arrest or otherwise civilly confine

[him] for expressing or practicing his [religious] convictions.” Complaint at 4. 

Because he failed to allege that he “has sustained or is immediately in danger of

sustaining some direct injury as a result of the challenged official conduct and the

injury or threat of injury [is] both real and immediate, not conjectural or

hypothetical,” City of Los Angeles v. Lyons , 461 U.S. 95, 101-02 (1983) (further

quotation omitted), dismissal of this claim for lack of jurisdiction was

appropriate. See id. at 101-05. 

For the first time on appeal, plaintiff challenges the National Organ

Transplant Act, see 42 U.S.C. §§ 273-274e, which he asserts prevents him from

selling his organs to pay for his euthanasia. This court will generally not address
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issues raised for the first time on appeal. See, e.g. , Howell v. United States , 164

F.3d 523, 525 n.1 (10th Cir. 1998). 

The judgment of the United States District Court for the District of Kansas

is AFFIRMED in part, REVERSED in part and REMANDED for further

proceedings consistent with this order and judgment.

Entered for the Court

Robert H. Henry

Circuit Judge