1

 In a Federal Torts Claim Act (FTCA) case, the only proper defendant is the United States of

America. 28 U.S.C. § 2671(a). Although Plaintiff filed this claim against the Secretary of the

United States Department of the Air Force, Defendant states that it moves to dismiss on the

behalf of the United States. (See Def.’s Motion at 1).

MEMORANDUM OPINION AND ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

JOHN ALDRIDGE, §

 §

Plaintiff, §

 §

v. §

 § Civil No. 7:05-CV-088-R

SECRETARY, UNITED STATES §

DEPARTMENT OF THE AIR FORCE §

 §

Defendant. §

 §

MEMORANDUM OPINION AND ORDER

Now before the Court is the Motion to Dismiss filed by the United States1 (filed June 27,

2005) and Plaintiff John Aldridge’s Response (filed July 8, 2005). After a thorough review of

all parties’ submissions, all matters of record, and all applicable law, Defendant’s Motion to

Dismiss is GRANTED.

I. BACKGROUND

On December 20, 2001, Plaintiff filed an Original Complaint, Cause No. 7:01-CV-0252,

in this court alleging medical malpractice on the part of United States Air Force physicians at

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS 

WICHITA FALLS DIVISION

FILED

October 27, 2005

CLERK, U.S. DISTRICT COURT

 

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2

 Plaintiff has filed multiple lawsuits against Defendant (four of which, Cause No. 7:05-CV-265,

Cause No. 7:05-CV-065, Cause No. 7:04-CV-0098, Cause No. 7:01-CV-0252, and Cause No.

7:04-CV-0001, were consolidated into Cause No. 7:01-CV-0252). In light of this, for

convenience this Court will hereinafter refer to the original December 20, 2001 claim, Cause No.

7:01-CV-0252, as “Aldridge I.”

3

 “A tort claim against the United States shall be forever barred unless it is presented in writing

to the appropriate federal agency within two years after such claim accrues. . .” 28 U.S.C. §

2401(b). 

MEMORANDUM OPINION AND ORDER – PAGE 2

Sheppards Air Force Base, Wichita Falls, Texas.2 Among other things, he claimed that the Air

Force physicians violated their standard of care when they failed to properly diagnose a scalp

lesion prior to October 1991. Plaintiff filed an administrative claim on this issue in 1999, eight

years after his claim accrued. As Plaintiff failed to meet the statute of limitations requirement

of the FTCA,3 this Court dismissed the skin cancer claim in Aldridge I on October 31, 2002 due

to lack of jurisdiction. 

On April 26, 2005, Plaintiff filed the present complaint pro se under the FTCA, alleging

that he had a “hazy memory,” and, in fact, he did not call attention to the lesion on or before

October 1991, as he had originally claimed. (See Compl. at 1). Instead, he alleges that his

FTCA claim accrued in June 2002, when he received medical records during Aldridge I

discovery revealing record of the lesion in a September 1968 physical examination. (See

Compl. at 3). Plaintiff contends that the Air Force’s failure to provide “follow up action. . .”

after the September 1968 physical constituted negligence. (See Compl. at 2). As a new basis

for his present claim, Plaintiff presented an administrative claim to the Department of the Air

Force on April 19, 2004. The Air Force issued an administrative denial to Plaintiff’s claim on

February 4, 2005. Defendant filed its Motion to Dismiss on June 27, 2005.

 

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MEMORANDUM OPINION AND ORDER – PAGE 3

II. ANALYSIS

A. Standard for 12(b)(1) and 12(b)(6) Motions 

Defendant moves to dismiss under Rule 12(b)(1) lack of subject matter jurisdiction and 

Rule 12(b)(6) failure to state a claim. (See Def.’s Mot. at 3-4). Rule 12(b)(1) authorizes

dismissal of an action where the court lacks subject matters jurisdiction, or where there is no

case or controversy presented. FED. R. CIV. P. 12(b)(1); Xerox Corp. v. Genmoora Corp., 888

F.2d 345, 350-51 (5th Cir. 1989). 

A Rule 12(b)(1) motion may be decided on the complaint alone, the complaint

supplemented by undisputed facts evidenced in the record, or the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts. Barrera-Montenegro v. United

States, 74 F.3d 657, 659 (5th Cir. 1996). A court must take the facts as true and resolve

inferences and doubts in the plaintiff’s favor. In re Supreme Beef Processors, Inc., 391 F.3d

629, 633 (5th Cir. 2004). 

Rule 12(b)(1) challenges come in two forms: “facial” attacks and “factual” attacks. See

Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A facial attack, which consists of a

Rule 12(b)(1) motion unaccompanied by supporting evidence, challenges jurisdiction based

solely on the pleadings. Id. The court examines whether the allegations in the complaint are

sufficient to invoke the court’s subject matter jurisdiction, assuming the allegations to be true. 

Id. When accompanied by supporting evidence, however, a 12(b)(1) challenge is a factual

attack. Id. A plaintiff responding to a factual attack on the court’s jurisdiction bears the burden

 

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4

 If, however, the facts necessary to sustain jurisdiction implicate the merits of the plaintiff’s

cause of action, then the court must proceed as it would under Rule 12(b)(6). See Xerox Corp.,

888 F.2d at 350-51.

5

 Although this court takes notice of matters which occurred in Aldridge I, this does not convert

Defendant’s Motion to Dismiss into a motion for summary judgment. See Lovelace v. Software

Spectrum, Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996) (“Normally, in deciding a motion to

dismiss for failure to state a claim, courts must limit their inquiry to facts stated in the complaint

and the documents either attached to or incorporated in the complaint. However, courts may

also consider matters of which they may take judicial notice.”); see also FED. R. EVID. 201 (A

judicially noticed fact must be one. . . generally known within the territorial jurisdiction of the

court. . .”).

MEMORANDUM OPINION AND ORDER – PAGE 4

of proving by a preponderance of the evidence that the court has subject matter jurisdiction. Id.

4

When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the

court should consider the 12(b)(1) jurisdictional attack before addressing the attack on the

merits. Id. Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon

which relief can be granted.”5 FED. R. CIV. P. 12(b)(6). Such dismissals are rare, Clark v.

Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986), and should only be granted if “it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim that would

entitled him to relief.” Conley v. Gibson, 255 U.S. 41, 45-46 (1957); Leffall v. Dallas Indep.

Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994) (“[A] claim may not be dismissed unless it appears

certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle

him to relief.”). In other words, a Rule 12(b)6) dismissal is not warranted merely because the

court “believes the plaintiff is unlikely to prevail on the merits.” Clark, 794 F.2d at 970. “Even

if it seems ‘almost a certainty. . . that the facts alleged cannot be proved to support the legal

claim,’ the claim may not be dismissed so long as the complaint states a claim.” Id. (quoting

Boudelouche v. Grow Chem. Coatings Corp., 728 F.2d 759, 762 (5th Cir. 1984)). 

In considering Defendant’s motion, this Court must liberally construe the complaint in

 

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6

 This Court notes that its resolution of the Motion to Dismiss was facilitated by what it

considers to be the excellent organizational structure of the motion. . . which is more than can be

said for other motions to dismiss filed by the Defendant during related proceedings. For

example, in this Motion, Defendant separately identifies the proper standard for dismissal, and

each counterclaim and ground for dismissal. The Court appreciates Plaintiff’s care in structuring

its arguments for the Court’s consideration. 

MEMORANDUM OPINION AND ORDER – PAGE 5

favor of the plaintiff, accept all well-pleaded facts as true, and view all facts in the light most

favorable to the plaintiff. See Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir.

1995); Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th

Cir. 1982), cert. denied, 459 U.S. 1105 (1983). “However, conclusory allegations or legal

conclusions masquerading as factual conclusions will not suffice to prevent a motion to

dismiss.” Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.1993). 

B. Res Judicata

Defendant advances three different arguments in favor of dismissal.6 The first is that

Plaintiff’s claim is barred by res judicata. (See Def.’s Mot. at 5). The second is that Plaintiff

failed to present his claim to the proper administrative agency. (See Def. Mot. at 8). The third

is that Plaintiff’s claim is barred because his injury was incident to service. (See Def.’s Mot. at

11). 

For a prior judgment to bar an action on the basis of res judicata, or claim preclusion, a

four-part test must be satisfied: (1) the parties in both suits must be identical; (2) the prior

judgment must have been rendered by a court with proper jurisdiction; (3) there must have been

final judgment on the merits; and (4) the same cause of action must be involved in both cases. 

See United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994); Nilsen v. City of Moss Point,

Mississippi, 701 F.2d 556, 559 (5th Cir. 1983) (en banc) (citation omitted); see also Kilgoar v.

Colbert County Board of Education, 578 F.2d 1033, 1035 (5th Cir. 1978). If these factors are

 

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7

 Although this Court affords Plaintiff a certain measure of leniency as he proceeds pro se, see

Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam), it simply can not allow

Plaintiffs to relitigate claims based solely on assertions of “faulty memory.” The Court is not

only bound by res judicata, but concerns for judicial efficiency and fairness. 

MEMORANDUM OPINION AND ORDER – PAGE 6

met, res judicata prohibits either party from raising claims or defenses in the later action that

were or could have been raised in support of or in opposition to te cause of action asserted in

the prior action. See Matter of Howe, 913 F.2d 1138, 1144 (5th Cir. 1990) (emphasis omitted).

 The first three factors are clearly met - parties are identical, and this court had proper

federal jurisdiction when it made a final determination dismissing the case due to the tolling of

the statute of limitations under the FTCA. Thus, the factor at issue in this case is whether both

suits involve the same cause of action. Plaintiff argues that he brings a different cause of action

because his original claim actually did not accrue until June 2002. (See Pl.’s Resp. at 3).

In determining whether two suits involve the same claim, the Fifth Circuit looks to

“whether plaintiff bases the two actions on the same nucleus of operative facts.” Matter of

Howe, 913 F.2d at 1144. Plaintiff appears to have raised his present claim against the

Defendant in his prior action. Further, the claim he asserts now rises from the same nucleus of

operative facts. Despite his contentions otherwise, Plaintiff is merely attempting to reargue the

same claim under the FTCA, 28 U.S.C. §§ 1346, 2671-2680, with a different accrual date, under

Aldridge I. Consequently, Defendant’s claims must be dismissed. See Icee of America, Inc. v.

Mid-American Icee Corp., 2005 WL 2415940, *16 (N.D. Tex. 2005) (“The doctrine of res

judicata prevents the relitigation of claims that have already been finally adjudicated or that

should have been litigated in a prior lawsuit.”).7

 As Plaintiff’s claim is barred by res judicata, it

is unnecessary to address Defendant’s subsequent alternative arguments. 

 

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MEMORANDUM OPINION AND ORDER – PAGE 7

CONCLUSION

For the reasons stated above, Defendant’s Motion to Dismiss is hereby GRANTED.

It is so ORDERED.

ENTERED: October 27, 2005.

___________________________________

JERRY BUCHMEYER, 

SENIOR U.S. DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

 

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