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

                             FOR THE TENTH CIRCUIT                       September 18, 2020
                         _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 PAMELA SMITH,

       Plaintiff - Appellant,

 v.                                                          No. 20-5042
                                                (D.C. No. 4:20-CV-00126-CVE-FHM)
 PACERMONITOR, LLC; OKLAHOMA                                 (N.D. Okla.)
 ATTORNEY GENERAL; TULSA
 COUNTY DISTRICT ATTORNEY,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Pamela Smith appeals the district court’s dismissal of her constitutional and

state law claims for lack of subject-matter jurisdiction. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and collateral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.
                                          -1-
                                           I

      In January 2000, Smith filed a lawsuit for claims arising from a sexual assault

she allegedly suffered at the hands of a state employee while she was incarcerated at

the Tulsa Community Correction Center. That case eventually resulted in a jury

verdict against Smith. See Smith v. Cochran, 182 F. App’x 854 (10th Cir. 2006).

      Years later, in May 2019, Smith filed suit against the Tulsa County District

Attorney’s Office, the Oklahoma Department of Public Safety, and the Oklahoma

Attorney General, arguing the defendants failed to supervise and investigate her

alleged assailant. Smith v. Oklahoma ex rel. Tulsa Cnty. Dist. Att’y Off., 798 F.

App’x 319, 320 (10th Cir. 2020) (“the Western District case”). The defendants

moved to dismiss and certified they had sent Smith a copy of their motion.

Smith denied having received the motion, so the district court ordered

defendants to send her a second copy.

failed to respond to the

motion, the district court deemed the motion confessed. The district court also

granted the motion based on other grounds, including timeliness and immunity.

the dismissal on the grounds of timeliness and immunity but

declined to address the district court’s ruling that the motion to dismiss had been

confessed.

      In December 2019, Smith initiated this lawsuit in the Southern District of New

York and the case was subsequently transferred to the Northern District of

Oklahoma. The substance of Smith’s current claim is that the defendants violated her

constitutional right to due process by conspiring to thwart her receipt and review of

                                           2
the motion to dismiss that was then granted against her. Smith also asserts a

defamation claim against two of the defendants.

       The district court dismissed the complaint sua sponte for lack of subject-matter

jurisdiction. Because Smith’s constitutional claims were “meritless” and lacked any

factual support, the district court concluded it had no subject-matter jurisdiction to

consider them. 1

                                                 II

       Federal Rule of Civil Procedure 12(b)(1) “allows a court to dismiss a

complaint for lack of subject matter jurisdiction. If the district court did so without

taking evidence, as the court did here, our review is de novo.” Safe Streets All. v.

Hickenlooper, 

, 877 (10th Cir. 2017) (quotation omitted). In the

absence of evidence-taking, both we and the district court “must accept the

allegations in the complaint as true.”

A federal court may lack subject-

matter jurisdiction if a federal claim is “so insubstantial, implausible, . . . or

otherwise completely devoid of merit as not to involve a federal controversy.” Steel

Co. v. Citizens for a Better Env't, 

, 89 (1998) (quotation omitted). The

party asserting subject-matter jurisdiction bears the burden of establishing it. Safe

.




       1
         The District Court dismissed Smith’s state law defamation claim on res
judicata grounds. Alternatively, the district court declined to exercise supplemental
jurisdiction over a state law claim after the federal claims were dismissed.
                                             3
       Smith’s claims are decidedly implausible. Her claim that the defendants

conspired to hide the motion to dismiss does not square with the clear appearance of

the motion to dismiss on the docket report and the availability of the motion from the

clerk’s office. It is also hard to discern what motivation the defendants would have

had to hide their motion to dismiss from Smith, given that the district court’s

dismissal in the Western District case was easily affirmed on appeal.

       Faced with the implausibility of her claims, Smith offers only scant evidence.

She notes that the defendants did not file a certificate of mailing as they were

instructed to do by the district court, but instead only certified that they had re-sent

the motion to dismiss. Smith also argues that the Oklahoma Attorney General

Office’s claim that it sent her a second copy of the motion to dismiss three days

before the district court ordered it to do so indicates deceit—notwithstanding the

Oklahoma Attorney General Office’s explanation that it sent a new copy as soon as it

was notified that Smith had not received the first copy. Neither of these facts

overcomes the facial implausibility of Smith’s claims.

       Moreover, Smith failed to allege in her complaint or explain on appeal how the

defendants’ purported failure to provide her with a copy of the motion to dismiss

violated her due process right. Such an explanation would be difficult, given that

Smith knew of the motion to dismiss more than a month before the district court

ruled on it and that the district court’s grant of the motion was affirmed on grounds

unrelated to her failure to respond. Lacking connective tissue between the facts



                                            4
Smith alleges and the constitutional rights she contends were violated, we hold Smith

has not met her burden of establishing subject-matter jurisdiction. 2

                                               III

      AFFIRMED.




                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




2
 Because Smith’s federal claims cannot be considered, the district court operated
within its discretion by declining to exercise supplemental jurisdiction to consider
Smith’s defamation claim. 28 U.S.C. § 1367(c)(3).
                                           5