Aikens v. Ingram

• Decision Date: 13 September 2007
• Docket Number: No. 5:06-CV-185-D.,5:06-CV-185-D.
• Citation: 513 F.Supp.2d 586
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Frederick AIKENS, Plaintiff, v. William E. INGRAM, Jr., et al., Defendants.

513 F.Supp.2d 586

Frederick AIKENS, Plaintiff, v. William E. INGRAM, Jr., et al., Defendants.

No. 5:06-CV-185-D.

United States District Court, E.D. North Carolina, Western Division.

September 13, 2007.

William W. Webb, Sr., William Woodward Webb, Jr., The Edmisten & Webb Law Firm, Raleigh, NC, for Plaintiff.

W. Dale Talbert, Attorney General's Office, R.A. Renfer, Jr., U.S. Attorney's Office, Raleigh, NC, for Defendants.

ORDER

JAMES C. DEVER, District Judge.

Frederick Aikens ("plaintiff"), a former Colonel in the North Carolina Army National Guard ("NCARNG"), filed this civil rights action against (1) Major General William Ingram ("Ingram") individually and in his official capacity as the Adjutant General of the NCARNG;¹ (2) Peter von Jess ("von Jess") individually and in his official capacity as a Lieutenant Colonel in the NCARNG; (3) Brian McCarthy ("McCarthy") individually and in his official capacity as a member of the NCARNG; and (4) Paul Jones ("Jones") individually and in his official capacity as a member of the NCARNG. Ingram and von Jess move to dismiss plaintiffs action pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). McCarthy and Jones move to dismiss the action for failure to achieve service of process. As explained below, the court dismisses plaintiffs amended complaint without prejudice as to Ingram and von Jess so that plaintiff may exhaust his intraservice administrative remedies with the Army Board for Correction of Military Records. As for plaintiffs amended complaint against McCarthy and Jones, the court concludes that plaintiff failed to achieve service of process. Thus, the action is dismissed without prejudice as to McCarthy and Jones.

I.

Plaintiff was a reserve soldier with the NCARNG from May 1973 until resigning on June 6, 2005. Am. Compl. ¶ 8. In or about November 2001, plaintiff and his unit were called to active duty at Fort Bragg, North Carolina. Am. Compl. ¶ 10. On November 10, 2001, plaintiff was promoted to Colonel and became the commanding officer of the 139th Rear Operations Center ("ROC"). Am. Compl. ¶ 11. On November 7, 2002, plaintiff was demobilized. Id. ¶ 16. In January 2003, plaintiff was advised that his unit would again be called to active duty and would deploy to the Iraqi Theater of Operation. Id. ¶ 21. On April 19, 2003, plaintiff and the 139th ROC deployed to Camp Doha in Kuwait in support of Operation Iraqi Freedom. Id. ¶ 25. While deployed, plaintiff used a computer that the ROC owned and that McCarthy and Jones (soldiers under plaintiffs command who were then on active duty in the United States Army) set up. Id. ¶¶ 4, 5, 27. Plaintiffs military email account was on a federal server. Id. ¶ 35.

Plaintiff alleges that while in Kuwait, Ingram (who remained in North Carolina) ordered McCarthy and Jones "to monitor, intercept and forward plaintiffs e-mails to von "Jess" in North Carolina. Id. ¶ 29. Plaintiff also alleges that von Jess (who was not on active duty and was in North Carolina employed by the NCARNG) delivered copies of plaintiffs e-mails to Ingram, who in-turn, "sent copies of the emails to plaintiffs [superiors in Kuwait and made] various allegations against plaintiff' on November 25, 2003. Id. ¶¶ 3, 31.

On or about November 25, 2003, plaintiff was summoned to Camp Arifjan in Kuwait and told that a Commander's Inquiry would be conducted to determine whether a formal investigation should proceed. Id. ¶ 32. On December 2, 2003, plaintiff returned from Kuwait to North Carolina along with the 139th ROC. Id. ¶ 33. In January 2004, plaintiff's commander from Kuwait informed him that a formal investigation would take place due to the Commander's Inquiry. Id. ¶ 33. Thereafter, according to plaintiff, at Ingram's behest, Colonel Garren and Colonel Baker (two NCARNG officers) conducted two investigations. Garren investigated an allegation of inappropriate relations with women, and Baker investigated an allegation of hostile command climate. Id. ¶¶ 37-38. The investigations were based (at least in part) on e-mails that plaintiff had exchanged with Major David Culbreth ("Culbreth") while deployed to Kuwait. Culbreth was a major in the NCARNG at the time the exchanged e-mails with plaintiff, but Culbreth was not on active duty and was in North Carolina. Culbreth sent the e-mails from his home computer in Fayettteville, North Carolina to Colonel Aikens on his federal computer in Camp Doha, Kuwait. See Am. Compl. ¶ 35.² Plaintiff received word from other NCARNG officers that "Ingram used illegal means to obtain the subject email message." Id. ¶ 35. Both investigations failed to substantiate the allegations against plaintiff. See id. ¶¶ 37-38. Plaintiff alleges that "[a]t the time the e-mail messages were obtained, the NCNG did not have authority over plaintiff since he saw not on actual duty in Kuwait and the proper authority to monitor plaintiff's e-mails was never obtained by the Army or the National Guard." Id. ¶ 39.

In May 2004, the Department of the Army Inspector General ("DAIG") investigated plaintiff concerning the alleged inappropriate relations with women and alleged hostile command climate. Id. ¶ 40. The DAIG investigation substantiated the charges. Id. ¶ 41. Plaintiff alleges that the DAIG investigation relied on "emails that were improperly browsed and obtained by Defendants." Id.

The DAIG then investigated plaintiff's claim that the DAIG's investigation relied on e-mails that the defendants improperly targeted and browsed. The DAIG investigation found that NCNG members violated Army Regulation 380-19 when they improperly targeted and browsed plaintiff's e-mail account. Id. ¶ 42-44. The DAIG investigation did not substantiate the allegation that members of the NCNG improperly released plaintiff's e-mails to Lt. Col. von Jess. See Am. Compl. ¶ 42 (Ex. A). Plaintiff resigned from the NCARNG and the United States Army effective June 6, 2005, and was transferred to the Retried Reserve effective August 31, 2005. Id. ¶ 45.

On April 27, 2006, plaintiff filed suit against all defendants. On May 4, 2006, plaintiff filed an amended complaint. In count one of the amended complaint plaintiff alleges invasion of privacy against all defendants. See Am. Compl. ¶¶ 46-51. In count two, he alleges that Ingram and von Jess violated his Fourth Amendment rights under 42 U.S.C. § 1983. See Am. Compl. ¶¶ 52-56. Finally, in count Three, he alleges that Jones and McCarthy violated his Fourth Amendment rights under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388. 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiff requests a declaratory judgment stating that defendants' actions "were unlawful and violative of plaintiff's privacy and civil and constitutional rights;" a preliminary and permanent injunction against defendants and their successors which would enjoin them from unlawful practices and future retaliation against plaintiff and require full reinstatement of benefits and seniority; damages, including back wages; attorney's fees; a jury trial; and any other relief the court deems proper. Id., Prayer for Relief.

On September 5, 2007, the court held oral argument. At oral argument and in his response to defendants' motion to dismiss, plaintiff clarified that he is not seeking relief in count one under North Carolina law or the Ninth Amendment for invasion of privacy. See Pl. Resp. 36-37. Rather, as clarified at oral argument, plaintiffs claims against Ingram and von Jess are based solely on section 1983 and the Fourth Amendment and his claims against McCarthy and Jones are based solely on Bivens and the Fourth Amendment. In support of the Fourth Amendment argument, plaintiff relies on Army Regulation 380-19.³ There are no other claims in the amended complaint.

II.

Defendants Ingram and von Jess argue that plaintiff's amended complaint must be dismissed because plaintiff failed to exhaust intraservice administrative remedies. See Defs.' I & J Mem. 28-29. Federal courts possess a "[t]raditional trepidation over interfering with the military establishment...." Guerra v. Scruggs, 942 F.2d 270, 276 (4th Cir.1991) (quoting Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir.1971)). That trepidation is "strongly manifested in an unwillingness to second-guess judgments requiring military expertise and in a reluctance to substitute court orders for discretionary military decisions." Id. To overcome that trepidation, a plaintiff must present "(a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of intraservice remedies." Williams v. Wilson, 762 F.2d 357, 359 (4th Cir.1985). Plaintiffs amended complaint alleges the deprivation of a constitutional right under the Fourth Amendment and thus satisfies the first element. Plaintiff has not, however, exhausted intraservice administrative remedies. See Guerra, 942 F.2d at 276; Williams, 762 F.2d at 359; Culbreth, 389 F.Supp.2d at 673-78.

Plaintiff argues that exhaustion would be futile because the ABCMR cannot address the alleged Fourth Amendment violation precipitating the alleged constructive discharge. See Pl.'s Mem. 7; cf. Guerra, 942 F.2d at 276 (if the outcome would be futile, the doctrine of exhaustion will not apply). Plaintiff notes that although the alleged violation of his federal rights occurred while he was federalized, the complaint focuses on two defendants — Ingram and von Jess — who at all times relevant to the complaint were in state status. Additionally, when plaintiff was allegedly forced to resign (i.e., constructively discharged), he was in state status. Thus, plaintiff argues that "[i]n the present case, there was no federal agency action, and [so] there is nothing for the ABCMR to review." Pl.'s Mem. 10. Moreover, plaintiff argues, the remedy he seeks "can only be granted by state personnel in state status." Id.

This court disagrees. The ABCMR has...