Graham v. Sec'y of the Army
| Decision Date | 26 September 2018 |
| Docket Number | NO. 5:17-CV-502-FL,5:17-CV-502-FL |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | JONATHAN P. GRAHAM, Plaintiff, v. SECRETARY OF THE ARMY, Defendant. |
This matter is before the court on defendant's motion to dismiss for lack of jurisdiction and failure to state a claim (DE 8). Plaintiff responded, including with a motion for extension of time to serve (DE 12). The issues raised have been fully briefed by the parties, and in this posture are ripe for ruling. For the following reasons, defendant's motion is granted in part and denied in part. Plaintiff's motion for extension of time to serve is granted in part, as set forth herein.
Plaintiff commenced this action pro se on October 4, 2017, asserting claims for violation of his civil rights and constitutional rights arising from an investigation conducted by the Army Criminal Investigation Division ("CID"). Specifically, plaintiff asserts the following claims:
1) Conspiracy against rights in violation of 18 U.S.C. § 241 ("Count I");
2) Deprivation of rights under color of law in violation of 18 U.S.C. § 242 ("Count II");
3) Engaging in an unlawful pattern or practice that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws in violation of 34 U.S.C. § 12601 ("Count III");1
4) Violation of plaintiff's rights under color of state law, pursuant to 42 U.S.C. § 1983. ("Count IV");
5) Conspiracy to interfere with civil rights under 42 U.S.C. § 1985. ("Count V");
6) Violation of plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution (collectively "Count VI, VII, and VIII");
7) Violation of the Privacy Act of 1974, 5 U.S.C. § 552a. ("Count IX");
8) Unlawful discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 24 U.S.C. § 2000d. ("Count X");
9) Violation of the Administrative Procedure Act in conducting the criminal investigation against defendant under 5 U.S.C. § 702. ("Count XI").
10) Violation of the Freedom of Information Act, 5 U.S.C. § 552. ("Count XII").
Plaintiff seeks damages, as well as declaratory and injunctive relief requiring defendant to reopen the investigation into his case to correct alleged errors in the investigatory process.
Defendant raises multiple grounds for dismissal of the claims against him, as detailed further in the court's discussion herein. In support of the motion to dismiss, defendant relies in part on supporting documents, including an order of dismissal from the EEOC without prejudice ("EEOC Order") (DE 9-1), and a letter of decision regarding plaintiff's request to amend the Report of Investigation in his case ("Appeal Letter") (DE 9-2).
In opposition to defendant's motion to dismiss, plaintiff submits extensive documentation detailing the criminal investigation against him, including 1) investigative reports written by CID'sagents ("CID Reports" (DE 1-2, 1-6, 1-8, 1-11, 1-12, 1-13, 1-22, 1-24)), 2) sworn statements and declarations made by plaintiff and other relevant individuals ("Statements and Declarations" (DE 1-3, 1-7, 1-9, 1-17, 1-21, 1-23, 1-25, 1-27), 3) other evidence submitted during the CID investigation and subsequent court proceedings ("CID Investigation Evidence" (DE-1-4, 1-5, 1-10, 1-14, 1-15, 1-16, 1-18, 1-19, 1-20).2 In plaintiff's response to the motion to dismiss, plaintiff also requests the court excuse him for failure to properly serve the defendant in this case pursuant to the Federal Rules of Civil Procedure (DE 13 at 3). The court shall construe this statement as a motion for extension of time to serve, and will consider it in conjunction with defendant's rule 12(b)(5) motion.3
The facts alleged in the complaint may be summarized as follows.4 Plaintiff worked for the Army as a civilian employee in the Program Executive Office Command, Control, Communication-Tactical at Fort Bragg in North Carolina. (Compl. ¶ 2). On September 24, 2012, Derek Kinlaw ("Kinlaw"), plaintiff's co-worker, reported to the Army Criminal Investigative Division ("CID") that plaintiff had stolen military equipment from the government while plaintiff was assigned to work in Iraq. (Id. ¶ 4.b.). CID then subsequently conducted an investigation into the activities of plaintiff based on the testimony of Kinlaw and plaintiff's other co-workers, including Richard Crider ("Crider"), and Raymond Krechko ("Krechko"). (Id.). During that investigation, CID found that plaintiff and his wife had been selling military equipment on eBay. (Id.).
Plaintiff disputed the allegations as CID conducted its investigation and provided his own theory to the investigators in his defense. Specifically, according to plaintiff, he had not stolen the military equipment in his possession, but he had lawfully obtained the equipment through valid sales of government liquidation products. (Id. ¶ 4.e.). Furthermore, according to plaintiff, Kinlaw and Crider fabricated their testimony to CID in order to cover up their own thefts of government property, while Krechko lied about the theft in retaliation for plaintiff previously counseling him for violating employee policies. (Id. ¶¶ 4.b, 4.f.).
CID concluded from its investigation that probable cause existed to find that plaintiff had stolen government property; however, criminal proceedings were not instituted by the United States Attorney's Office because the prosecution allegedly did not believe it could meet its burden of proof at trial. (Id. ¶¶ 4.i., 4.j.). Plaintiff appealed the findings of CID, seeking to have the investigative report corrected. (Id. ¶ 4.i.). Plaintiff alleges that CID's investigation of him was an act of racial discrimination, that similarly situated white co-workers were not investigated for committing the same crime, and that CID's handling of the investigation violated plaintiff's constitutional rights, making the factual findings fundamentally flawed and injuring plaintiff as a consequence.
The court also notes the following facts pertinent to the instant motion. Plaintiff initially raised his claim of racial discrimination in violation of Title VII by filing a Charge of Discrimination with the EEOC, but later voluntarily dismissed the EEOC action without prejudice on June 14, 2017. (EEOC Order (DE 9-1) at 1). Additionally, plaintiff appealed to the U.S. Army Criminal Investigation Command to amend the CID's investigative report on August 12, 2016, but his appeal was denied on November 21, 2017. (Appeal Letter (DE 9-2) at 1). Plaintiff was advised to appeal the amendment denial by writing to the Army Board for Correction of Military Records. (Appeal Letter at 2).
Additional facts pertinent to the instant motions will be discussed below.
A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction. Such motion may either 1) assert the complaint fails to state facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject matter jurisdiction in fact, apart from the complaint. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where a defendant raises a "facial challenge[] to standing that do[es] not dispute the jurisdictional facts alleged in the complaint," the court accepts "the facts of the complaint as true as [the court] would in context of a Rule 12(b)(6) challenge." Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018).When a defendant challenges the factual predicate of subject matter jurisdiction, a court "is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving party in such case "must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists." Id.
A motion under Rule 12(b)(5) challenges the sufficiency of service of process. See Fed. R. Civ. P. 12(b)(5). "When the process gives the defendant actual notice of the pendency of the action, the rules ... are entitled to a liberal construction" and "every technical violation of the rule or failure of strict compliance may not invalidate the service of process." Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984). Nevertheless, "the rules are there to be followed, and plain requirements for the means of effecting service of process may not be ignored." Id. The plaintiff bears the burden of establishing that process properly has been served. Dalenko v. Stephens, 917 F. Supp. 2d 535, 542 (E.D.N.C. 2013); see also Mylan Labs., Inc. v. Akzo, N.V.,2 F.3d 56, 60 (4th Cir. 1993) ().
"To survive a motion to dismiss" under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, "[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff," but does not consider "legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
Although 18 U.S.C. §§ 241 and 242 both address civil rights, they are federal criminal statutes and do not create civil liability or confer civil jurisdiction...
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