Bryant v. Military Dept. of State of Miss.

• Decision Date: 26 August 2005
• Docket Number: No. CIV.A. 3:05CV179LN.,CIV.A. 3:05CV179LN.
• Citation: 381 F.Supp.2d 586
• Parties: Joe H. BRYANT, Jr. Plaintiff v. MILITARY DEPARTMENT OF THE STATE OF MISSISSIPPI, by and through the MISSISSIPPI AIR NATIONAL GUARD, Franklin E. Chalk, Frederick D. Feinstein, Roy A. Graham, Billy Joe Gressett, Donald E. Jones, Langford L. Knight, F. Gregory Malta, William F. Parten, Robert E. Pierce, Roger E. Shirley, Charles F. Steed, Aaron K. Wilson and Thomas Temple; and John does 1-20 Defendants.
• Court: U.S. District Court — Southern District of Mississippi

381 F.Supp.2d 586

Joe H. BRYANT, Jr. Plaintiff v. MILITARY DEPARTMENT OF THE STATE OF MISSISSIPPI, by and through the MISSISSIPPI AIR NATIONAL GUARD, Franklin E. Chalk, Frederick D. Feinstein, Roy A. Graham, Billy Joe Gressett, Donald E. Jones, Langford L. Knight, F. Gregory Malta, William F. Parten, Robert E. Pierce, Roger E. Shirley, Charles F. Steed, Aaron K. Wilson and Thomas Temple; and John does 1-20 Defendants.

No. CIV.A. 3:05CV179LN.

United States District Court, S.D. Mississippi, Jackson Division.

August 26, 2005.

COPYRIGHT MATERIAL OMITTED

Paul A. Koerber, Paul A. Koerber, Attorney, Jackson, MS, for Plaintiff.

Emerson Barney Robinson, III, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Michael Farrell, Mitchell, McNutt & Sams, PA, Jackson, MS, J. Stewart Parrish, Malta & Parrish, PLLP, Robert J. Bresnahan, Attorney, Meridian, MS, for Defendant.

CORRECTED MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

Defendant Mississippi Air National Guard (MSANG) has filed in this case a motion to dismiss pursuant to Rule 12(b)(1), 12(b)(6) and 12(c) and on the basis of the Eleventh Amendment, and for judgment on the pleadings, and has filed a separate motion for dismissal, sanctions and related relief pursuant to Rule 11, 28 U.S.C. § 1927 and Mississippi's Litigation Accountability Act, Miss.Code Ann. § 11-55-1 et seq. All of the individual defendants have joined in MSANG's motion.¹ Plaintiff Joe H. Bryant has responded in opposition to MSANG's motions and the court, having now considered the parties' memoranda of authorities, concludes that MSANG's motion is due to be granted, but the motions of the individual defendants must be denied.

According to the complaint in this cause, Bryant began his military service in 1974, and in 1980, was assigned to duty with MSANG's 186th Tactial Recon Group, which later became the 186th Refueling Wing, located at Key Field in Meridian, Mississippi. He eventually was assigned to MSANG Headquarters, as its Director of Operations. Bryant states that between 1990 and 1998, he "began to observe wrongful actions by superiors in the method and manner in which his fellow airmen were being treated."² He alleges that in an effort "to protect and defend his fellow airmen at the 186th, in their jobs, ranks and assignments, as well as to protect the integrity of the 186th," he "took certain actions," including first addressing his allegations and concerns to superior officers, and ultimately to requesting an investigation by the Inspector General of the Department of the Air Force pursuant to 10 U.S.C. § 1034.

According to Bryant, as a result of his allegations of wrongdoing against senior Guard officials, he was humiliated, intimidated and harassed by various defendants. He claims, for example, that when he first brought his allegations to the attention of then — Brigadier General of the MSANG, Harold Cross, in October 1988, Cross dismissed his complaint. Thereafter, while Bryant was deployed to Bosnia-Herzegovina during January 1999 through July 1999, Cross "sought Plaintiff's voluntary separation from MSANG," directing that plaintiff sign a letter of resignation (which plaintiff refused), and relieved plaintiff of his duties as Director of Operations; when plaintiff returned from Bosnia, he was not reinstated to his former position as Director of Operations but rather was assigned to the position of an officer junior in grade, lieutenant colonel, was directed to assist an officer junior to him, and was directed to "occupy" an office that was actually in a storage room; he was ordered to never report to anyone or perform any duties regarding the Wing's flight operations, even though he was a pilot and a colonel; certain of the defendants composed a career-damaging report in an effort to adversely affect his military record; Cross threatened him with loss of his career; Walker threatened him with dismissal from MSANG; he was assigned to a "storeroom" during a mandatory drill weekend and was ridiculed by Weaver and others; he was ordered by defendant Malta to sign dismissal paperwork associated with his dismissal from MSANG; and someone (presumably one of the defendants) forged Bryant's signature to an acknowledgment that he would be separated from MSANG.

Plaintiff alleges that after initiation of the Inspector General's investigation, and as a result of the ensuing investigation, defendants engaged in threats, violence and other intimidation tactics, in reprisal for his having communicated wrongful conduct to the Inspector General. He claims, for example, that he was met by armed MSANG airmen when he attempted to attend a Minority Awareness Council Meeting; repeated gun shots were fired in and around his residence; harassing telephone calls and anonymous hang-up calls were made to him; defendant Temple physically assaulted him; in a scheme to cause him to lose his civilian job with Federal Express, defendant Pierce attempted to get his pilot's license revoked by the FAA by falsifying medical information concerning plaintiff; the gasoline line to plaintiff's wife's vehicle was cut; the windows to his motor-home were shot out and appliances attached to the motor-home were destroyed; and the tires on his personal airplane were slashed.

Based on these allegations, Bryant has alleged claims for violations of the Military Whistleblower Protection Act, 10 U.S.C. § 1034, the Mississippi Whistleblower Protection Statute, Miss.Code Ann. § 25-9-171, et seq., and the First Amendment, and asserts claims under 42 U.S.C. §§ 1983, 1985 and 1986. He demands as relief compensatory and punitive damages, any penalties available under Mississippi Code Annotated § 25-9-171, et seq., prejudgment and post-judgment interest and attorney's fees.³

The resolution of MSANG's motion is rather straightforward. First, plaintiff's claim that MSANG violated the Military Whistleblower Protection Act, 10 U.S.C. § 1034, is due to be dismissed because that Act affords plaintiff no private cause of action. The Act, which prohibits any person from taking any unfavorable personnel action or withholding a favorable personnel action "as a reprisal against a member of the armed forces for making or preparing a communication to a Member of Congress or an Inspector General," 10 U.S.C. § 1034(b), provides only an administrative remedy and not a private cause of action. See Acquisto v. U.S., 70 F.3d 1010, 1011 (8th Cir.1995) (concluding, upon review of the statutory language, legislative history and administrative regulations, that "§ 1034 does not provide [a service member] with any private cause of action, express or implied"); Soeken v. U.S., 47 Fed.Cl. 430, 433 (Fed.Cl.2000) ("[T]he Military Whistleblower Protection Act provides solely an administrative process for handling complaints of improper retaliatory personnel actions" and does not provide a private cause of action).⁴ Accordingly, plaintiff has no viable claim in this court against any defendant for any alleged violation of § 1034.⁵

Further, inasmuch as MSANG, for present purposes, is a state agency, all of plaintiff's remaining claims against MSANG are barred by the Eleventh Amendment.⁶ The Eleventh Amendment bars an action in federal court by a citizen of a state against his own state, including a state agency, unless the state has waived its immunity or Congress has validly abrogated the state's immunity. See Martinez v. Texas Dept. of Criminal Justice, 300 F.3d 567, 573 (5th Cir.2002). Neither exception applies to any of the claims involved here.

While Bryant suggests that the Mississippi Whistleblower Protection Statute represents a waiver of the state's Eleventh Amendment immunity, the text of the statute belies his position. Specifically, the statute requires that suits under the Act be brought in the circuit courts of Mississippi. See Miss.Code Ann. § 25-9-177. In Martinez, supra, the Fifth Circuit explained that "[e]ven when a State consents to suit in its own courts, ... it may retain Eleventh Amendment immunity from suit in federal court," that "[a] State's consent to being sued in federal court must `be unequivocally expressed'," and that "for a state statute to waive Eleventh Amendment immunity, `it must specify the State's intent to subject itself to suit in federal court'." 300 F.3d at 575. Thus in Martinez, where the Texas Whistleblower Act contained a waiver of sovereign immunity and specified that the aggrieved employee could sue in a state district court, the Fifth Circuit found there was no waiver of the state's Eleventh Amendment immunity: "In other words, the Act waives state sovereign immunity only in Texas state courts." Id. The same conclusion pertains here.

Moreover, there has been no Congressional abrogation of state sovereign immunity as to claims under § 1983, 1985 or 1985. See Quern v. Jordan, 440 U.S. 332, 338-40, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Seibert v. University of Oklahoma Health Sciences Center, 867 F.2d 591 (10th Cir.1989), abrogated on other grounds, Federal Lands Legal Consortium ex rel. Robart Estate v. U.S., 195 F.3d 1190, 1195 (10th Cir.1999) (seeing "no reason why the Supreme Court's reasoning and holding (in Quern and Edelman) should not apply with equal force to plaintiff's civil rights claims under section 1985 (conspiracy) and section 1986 (failure to prevent conspiracy violations)"); Smith v. Johnson, 2005 WL 578470, *4 (N.D.Tex.2005) (claims under §§ 1983, 1985 and 19895 barred by Eleventh Amendment).⁷

In addition, Bryant's claims under §§ 1983, 1985 and 1986 are barred for the further reason that these statutes create rights solely against "persons" and a state is not considered a "person" under these statutes. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ("[N]either a State nor its officials acting in their official capacities are `persons' under § 1983").⁸

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