Mackall v. U.S. Dep't of Def., Civil Action No. RDB-17-0774

• Decision Date: 20 November 2017
• Docket Number: Civil Action No. RDB-17-0774
• Parties: TOBY ROBERTO MACKALL, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Maryland

TOBY ROBERTO MACKALL, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

Civil Action No. RDB-17-0774

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

November 20, 2017

MEMORANDUM OPINION

Pro se Plaintiff Major Toby Roberto Mackall ("Plaintiff" or "Major Mackall") filed this action against the United States Department of Defense ("Department of Defense"), Major General Clark W. LeMasters, Jr. ("Major General LeMasters"), Colonel Timothy D. Luedecking ("Colonel Luedecking"), Lieutenant Colonel Myron L. Bell ("Lieutenant Colonel Bell"), and Major Matthew D. Tobin ("Major Tobin") (collectively, "Defendants").¹ Originally filed as two separate actions (RDB-17-0774 and RDB-17-0865), the cases were consolidated and the RDB-17-0865 case was dismissed by Memorandum Order dated November 16, 2017 (ECF No. 20).

Currently pending before this Court are Defendants' Motion to Dismiss (ECF No. 8), Plaintiff's Motion for Partial Summary Judgment (ECF No. 16), and Defendants' Motion to Stay (ECF No. 17). The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Defendants'Motion to Dismiss (ECF No. 8) is GRANTED. Accordingly, Plaintiff's Motion for Partial Summary Judgment (ECF No. 16) is DENIED AS MOOT and Defendants' Motion to Stay (ECF No. 17) is DENIED AS MOOT.

BACKGROUND

When reviewing a Motion to Dismiss, the Court accepts as true the facts alleged in the Plaintiff's Complaint. Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011); Quintana v. City of Alexandria, Case No. 16-1630, 692 Fed. App'x. 122, 124 (4th Cir. June 6, 2017). Plaintiff Major Toby Mackall's claims stem from his demotion following the active shooter event in Fort Hood, Texas in April of 2014.² (Compls., ECF Nos. 1, 21.)³ At that time, Major Mackall was serving as the Executive Officer ("XO") of the 49^th Movement Control Battalion. (ECF No. 8-1 at 2.) He served under Defendant Lieutenant Colonel Bell, who reported to Defendant Colonel Leudecking, who in turn reported to Defendant Major General LeMasters. (Id. at 2-3.) On April 2, 2014, Plaintiff was leading a staff meeting with his unit when the active shooter event began. (Id. at 3.) After the unit heard the gunshots, Plaintiff decided to exit the building. (Id.) He maintains, however, that he remained "present and responding to the shooting." (ECF No. 1 at 6.) At the same time, Sergeant First Class Daniel Ferguson stayed to prevent the shooter from entering the meeting, and was shot and killed in the process. (ECF No. 8-1 at 3.)

Major Mackall was subsequently removed from his leadership position on April 14, 2017. (ECF No. 1 at 6.) Plaintiff claims that his abrupt removal was due to allegations that he was insensitive in the aftermath of the event and his filing of a "pre-event complaint [in December of 2013 and March of 2014] regarding the command climate and insubordination on-going in the unit." (Id.) Further, that there was an organized effort to "discredit his leadership by unit leaders and responsible management officials . . . in an attempt to discredit any and all communications attempted to disclose the truth about the command climate and organization that contributed to the horrific actions of the shooter." (Id.) Specifically against Defendants Colonel Luedecking and Lieutenant Colonel Bell, Plaintiff claims that they presented false and misleading statements to investigators regarding his leadership and allegations of senior leaders' misconduct. (ECF No. 21 at 6.) As a result, Plaintiff's leadership style was labeled "toxic." (Id.) Plaintiff brought a claim of whistleblower reprisal, which Defendant Major Tobin, acting as Detailed Inspector General, investigated. (ECF No. 1 at 6; ECF No. 8-1 at 5.) Plaintiff claims that Defendant Major Tobin defamed him "when re-stating the findings from the investigation conducted by the unit, instead of conducting an independent investigation." (ECF No. 21 at 6.)

Plaintiff brings claims against all Defendants for violating his 5^th and 14^th Amendment rights and for whistleblower retaliation in violation of 10 U.S.C. § 1034. (ECF No. 1 at 4; ECF No. 21 at 4.) Against the Department of Defense, Plaintiff also brings a negligence claim for his "personal injury caused by negligent government employees acting within the scope of their employment and the subsequent personnel actions not properly addressed regarding alleged corruption." (ECF No. 1 at 7.) Against the IndividualDefendants, Plaintiff also brings claims for deprivation of rights under 42 U.S.C. § 1983,⁴ making fraudulent and false statements in violation of 18 U.S.C. §§ 1001, 1038(b), retaliation, and defamation and libel. (ECF No. 21 at 4.)

STANDARD OF REVIEW

I. Motion to Dismiss Under Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of the evidence, the existence of subject matter jurisdiction. Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). A challenge to jurisdiction under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting "that the jurisdictional allegations of the complaint [are] not true." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted).

In a facial challenge, a court will grant a motion to dismiss for lack of subject matter jurisdiction "where a claim fails to allege facts upon which the court may base jurisdiction." Davis, 367 F. Supp. 2d at 799. Where the challenge is factual, however, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Kerns, 585 F.3d at 192. The court, therefore, "may regard the pleadings as mere evidence on theissue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004).

II. Motion to Dismiss Under Rule 12(b)(6)

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). To satisfy Rule 8(a)(2), a complaint need not include "detailed factual allegations." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, a plaintiff must plead more than bald accusations or mere speculation. Twombly, 550 U.S. at 555. A complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely." Id. at 556 (internal quotations omitted).

In reviewing a Rule 12(b)(6) motion, a court "'must accept as true all of the factual allegations contained in the complaint'" and must "'draw all reasonable inferences [from those facts] in favor of the plaintiff.'" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); Hall v. DirectTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017). Further, a pro se plaintiff's pleadings are "to be liberally construed" and are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus,551 U.S. 89, 94 (2007); Alley v. Yadkin County Sheriff Dept., No. 17-1249, ___ Fed App'x ___, 2017 WL 4415771 (4th Cir. Oct. 5, 2017). However, even a pro se litigant's complaint must be dismissed if it does not allege a "plausible claim for relief." Iqbal, 556 U.S. at 679.

ANALYSIS

I. Constitutional claims

A. Constitutional claims against the Individual Defendants

An individual can bring "a suit for damages against federal officials whose actions violated [the] individual's constitutional rights." Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). However, before determining that a Bivens action is appropriate, courts must consider "special factors counseling hesitation" against permitting such suit. Chappell v. Wallace, 462 U.S. 296, 298, 103 S.Ct. 2362, 2365 (1983). In Chappell, the Court considered such factors and held that "the unique disciplinary structure of the military establishment and Congress' activity in the field constitute 'special factors' which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers." Id. at 304. Accordingly, the Court stated that, "enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations." Id. at 305.

Four years after Chappell, the Court adopted the "incident to service" test for determining whether a Bivens action is available in the military context. United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054 (1987) (citing Feres v. United States, 340 U.S. 135, 71 S.Ct. 153 (1950)); see also Aiken v. Ingram, 811 F.3d 643, 649 (4th Cir. 2016) ("Stanley clarified that the Feres "incident to service" test is applicable to constitutional claims under Bivens.") Under thistest, "no Bivens...