Dickson v. Wojcik

• Decision Date: 27 May 2014
• Docket Number: Case No. 1:13–CV–644.
• Parties: Lyle E. DICKSON, Plaintiff, v. John WOJCIK, individually and as General Counsel for the State of Michigan Army National Guard, and the State of Michigan Army National Guard, Defendants.
• Court: U.S. District Court — Western District of Michigan

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Lyle E. DICKSON, Plaintiff
v.
John WOJCIK, individually and as General Counsel for the State of Michigan Army National Guard, and the State of Michigan Army National Guard, Defendants.

Case No. 1:13–CV–644.

United States District Court, W.D. Michigan, Southern Division.

Signed May 27, 2014.

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Lyle E. Dickson, Law Office of Lyle Dickson, Howell, MI, for Plaintiff.

Ryan D. Cobb, U.S. Attorney, Grand Rapids, MI, for Defendants.

OPINION

ROBERT J. JONKER, District Judge.

This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (docket # 24). The Motion is fully briefed. After a thorough review of the record and careful consideration of the applicable law, the Court finds that oral argument is not necessary to resolve the motion. The motion is ready for decision.

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Background

Plaintiff Dickson brings a series of claims arising out of his service with and separation from Defendant Michigan National Guard (the “Guard”). Plaintiff filed a Second Amended Complaint laying out the factual details of his claims.¹ According to Plaintiff's Second Amended Complaint, he was employed as a Military Police Sergeant until September 2008, when Plaintiff received a promotion to the position of First Lieutenant in the Judge Advocates Corps. (Second Am. Compl., docket # 18, at ¶ 3.) Defendant LTC John Wojcik served as general counsel for Defendant Michigan Army National Guard (the “National Guard”) and as Plaintiff's supervisor. (Id. at ¶ 2.) Days before he was commissioned as a First Lieutenant in the JAG Corps, Plaintiff was ordered to have a physical examination. (Id. at ¶ 4.) During the exam, Plaintiff “was forced, with great nervousness, embarrassment and hesitation, to publicly report to medical personnel that he was the victim of a sexual assault as a child.” (Id. ) Plaintiff also “expressed concerns about the physical exam process based upon an incident that had occurred at his enlistment physical exam.” (Id. ) Plaintiff “was also required to give employment history involving his career as a Police Officer and Attorney.” (Id. ) In January 2009, the Guard discontinued Plaintiff's commission “for allegedly failing to reveal a contempt conviction and other allegations by Brigadier General Anderson.” (Id. at ¶ 5.) Plaintiff “was honorably discharged and not allowed to reenlist in his prior position, although he was eligible and BG Anderson indicated he would authorize it.” (Id. at ¶ 5.)

According to Plaintiff, the allegations based on which the Guard discontinued his commission were false. (Id. at ¶ 6.) Plaintiff asserts that “the GUARD refused, and continues to refuse, to identify the source of the false statements.” (Id. ) In July 2012, “Plaintiff filed a Motion to expunge the contempt conviction in the court of original jurisdiction,” which Plaintiff identifies as Michigan's 53d District Court. (Id. at ¶¶ 7–8.) Judge Brennan of the 53d District held a hearing on the motion to expunge the contempt conviction. (Id. at ¶ 9.) During the hearing, “Judge Brennan stated that Plaintiff had been dismissed from the GUARD for failing to reveal the contempt conviction.” (Id. ) “Plaintiff denied the statement [that he had failed to reveal the contempt conviction.]” (Id. ) Plaintiff inquired who provided the court with information that Plaintiff had been dismissed for failing to reveal the contempt commission. (Id. at ¶ 10.) Judge Brennan “asked if ‘John Wojcik’ would have knowledge about the facts, thus naming for the first time the source of the false information to Plaintiff.” (Id. ) The court “refused to expunge the conviction, at least in part [ ] based upon the false statement by Defendant WOJCIK and/or his agents[ ] or assigns.” (Id. at ¶ 11.)

According to Plaintiff, the affidavit of Major Joseph Ljubicic “verifies that Plaintiff did, in fact, disclose the contempt citation prior to his commissioning as Ljubicic is the person who completed Plaintiff's application for commissioning.”² (Id. at ¶ 12.) Plaintiff says he “also disclosed the contempt conviction prior to his re-enlistment

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as a Military Police Specialist years earlier” and “was an exemplary soldier who was promoted before his peers to the rank of Sergeant and also served as a Unit Career Counselor for other soldiers prior to commissioning.” (Id. at 14.) Plaintiff “has requested several investigations into the matter via military and political channels,” but “the situation was covered up by Defendant(s).” (Id. at ¶ 15.)

Based on these assertions, Plaintiff alleges ten separate causes of action against Defendants Wojcik and the Guard. Plaintiff claims Intentional or Negligent Infliction of Emotional Distress (Count I); Defamation (Count II); Invasion of Privacy–False Light (Count III); Tortious Interference with a Contracted Business Relationship (Count IV); Business Defamation or Injurious Falsehood (Count V); Breach of Contract or Detrimental Reliance (Count VI); Violation of First Amendment under 42 U.S.C. § 1983 (Count VII); Conspiracy to improperly discharge Plaintiff from military service (Count VIII); Violation of Right to Privacy Act of 1974 (Count IX); and Violation of Due Process (Count X). Plaintiff seeks damages for the alleged loss of his “military career; retirement; pay; benefits; social prestige; promotions; comraderie [sic] of fellow soldiers” and for “severe emotional distress.” Defendants move to dismiss the case under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

LEGAL STANDARD

A challenge to subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) may be a facial attack, challenging the sufficiency of a plaintiff's factual allegations, or a factual attack, challenging the fact of subject matter jurisdiction. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994) ; Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 324 (6th Cir.1990). When a defendant mounts a factual attack on subject matter jurisdiction, a court may weigh the evidence regarding jurisdiction, including affidavits and other evidence outside the pleadings, and the plaintiff bears the burden of proving jurisdiction. Ritchie, 15 F.3d at 598 ; Rogers v. Stratton Indus., 798 F.2d 913, 916 (6th Cir.1986).

Fed. R. Civ. P. 8(2)(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” To satisfy this standard, a complaint need not contain detailed factual allegations, but it must contain “more than ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.’ ” Hensley Mfg., Inc. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir.2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all well-pleaded factual allegations in the complaint. Id. “[T]o survive a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient ‘to raise a right to relief above the speculative level,’ ... and ‘to state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). A claim is facially plausible “ ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ). “The plausibility standard is not akin to a ‘probability requirement.’ ” Ashcroft, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 556–57, 127 S.Ct. 1955 ). The Court need not accept as true legal conclusions framed as factual allegations. Hensley Mfg., 579 F.3d at 609.

ANALYSIS

1. Tort Claims (Counts I–V)

The Federal Tort Claims Act (“FTCA”) creates a waiver of sovereign immunity

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under which the United States may be held liable for “tort claims, in the same manner and to the same extent as a private individual under like circumstances....” 28 U.S.C. § 2674 ; see also 28 U.S.C. § 1346(b)(1) (granting exclusive jurisdiction to the federal district courts ‘of civil actions on claims arising against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred [,]” subject to the procedures set forth in the FTCA). The FTCA contains an exception for intentional torts, stating that the United States has not waived sovereign immunity for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.”28 U.S.C. § 2680(h).

The...