Stoyanov v. Winter

• Decision Date: 06 August 2009
• Docket Number: Civil Action No. 08-1386 (ESH).
• Citation: 643 F.Supp.2d 4
• Parties: Yuri J. STOYANOV, Plaintiff, v. Donaled C. WINTER, Secretary of the Navy, et al., Defendants.
• Court: U.S. District Court — District of Columbia

643 F.Supp.2d 4

Yuri J. STOYANOV, Plaintiff, v. Donaled C. WINTER, Secretary of the Navy, et al., Defendants.

Civil Action No. 08-1386 (ESH).

United States District Court, District of Columbia.

August 6, 2009.

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Yuri J. Stoyanov, Fulton, MD, pro se.

Mercedeh Momeni, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff has yet again filed a pro se complaint against his employer, the Department of Navy. In a fourteen-count complaint plaintiff alleges discrimination based on national origin and age and retaliation in violation of Title VII and the ADEA; constitutional violations and violations of the civil rights laws, as well as conspiracy and aiding and abetting civil rights violations; various torts, including abuse of process, fraud and misrepresentation; an implied right of action for obstruction of justice; and violations of the Whistleblower Protection Act of 1989. Consistent with his past practice, plaintiff has also filed a motion for sanctions (Dkt. No. 21) under Fed.R.Civ.P. 11, claiming that defendants' summary judgment motion includes "deliberate misrepresentations," "fraudulent assertions," and "deceitful contentions." (Pl.'s Mot. for Sanctions at 2.) In addition, plaintiff has filed for final judgment (Dkt. No. 27) and a motion for additional sanctions and leave to respond to defendants' June 26, 2009 reply. (Dkt. No. 30.)

In response to plaintiff's constant barrage of paper, defendant has filed oppositions to plaintiff's many motions, as well as a motion for summary judgment and to dismiss or in the alternative, for a more definite statement (Dkt. Nos. 16 and 17), which plaintiff opposes. Plaintiff's opposition consists primarily of an attack on defendant's factual assertions on the supposed grounds that they are fraudulent and deceitful, but as explained more fully below, his opposition consists of little more than disputes that are neither factual nor substantive and do nothing to rebut defendants' meritorious legal and factual arguments.

Therefore, plaintiff's pending motions will be DENIED and defendants' motions to dismiss and for summary judgment will be GRANTED.

BACKGROUND

I. PRIOR LITIGATION

While plaintiff does not appear to have brought suit in this Court before, he is a frequent filer in Maryland. As noted by Judge Davis in his Memorandum Opinion in Stoyanov v. Winter, No. 1:06-cv-01244-AMD, 2008 WL 6722765 (D.Md.), issued on August 11, 2008 (Dkt. No. 55), plaintiff has filed seven employment discrimination cases in Maryland.¹ As a result of his vexatious conduct, he is now subject to an order that limits him and his twin brother to only one active case at a time in the District of Maryland. See Stoyanov, No. 1:06-cv-01244-AMD, 2008 WL 6722765, at *1-2 & n. 1 (attached as Ex. I to Defs.' Mot. for Summary Judgment and to Dismiss [Defs.' SJ Mot.]). And, it bears noting that the tactic employed here of bringing multiple motions for sanctions was also used in Maryland, without success, in at least two of these actions. See, e.g., Stoyanov v. Winter, No. 1:06-cv-01244-AMD (Dkt. No. 49) (D.Md. May 13, 2008), and Stoyanov v. Winter, No. 1:05-cv-01567-RDB (Dkt. Nos. 64, 71 and 72) (D.Md. Oct. 30, 2006, Nov. 17, 2006).

II. THIS CASE

Plaintiff was born in 1955 in the former Soviet Union, is now a naturalized citizen, and has worked for the Department of Navy as a scientist since 1986. He sues his employer, the Secretary of Navy, and three individuals in their personal and official capacities.² The dispute arises from plaintiff's complaint that he was not promoted to fill a vacancy in 2005 for a Supervisory Naval Architect in NAVSEA, Vacancy Announcement DON0871. Venue properly lies with this Court since the job at issue, a GS-15 position, is located in the Washington, D.C. Navy Yard. It is undisputed that plaintiff did not submit an application for the vacancy, although plaintiff claims that there was a conspiracy to conceal the vacancy announcement from him even though the announcement was posted on the Department of the Navy Human Resources website "CHART" system that is available to anyone, including plaintiff, with web access. In the alternative, defendants assert that plaintiff could not have been promoted to his position because he lacked the necessary qualifications. Plaintiff disputes this assertion.

ANALYSIS

I. MOTION TO DISMISS

A. Standard of Review

Although much of plaintiff's forty-six page opposition consists of little more than plaintiff's vitriolic characterization of defendants' factual assertions in their summary judgment motion and supporting statement of facts not in dispute as "intentional misrepresentations, fabricated assertions without evidentiary support and . . . deceptions to the Court with regard to material facts in deceitful attempt to defend defendants' intentional discrimination and retaliations against plaintiff . . .," (see, e.g., Pl.'s Mot. in Opp'n to Defs.' SJ Mot. at 35), the vast majority of plaintiff's claims can be dismissed under Fed.R.Civ.P. 12(b)(1) and (6) without any reliance on defendants' factual assertions.

"In determining whether a complaint fails to state a claim [under Rule 12(b)(6)], [courts] may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [courts] may take judicial notice." E.E.O.C. v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C.Cir.1997). "`[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.'" Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672, 681 (D.C.Cir.2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). "`So long as the pleadings suggest a "plausible" scenario to show that the pleader is entitled to relief, a court may not dismiss.'" Id. (quoting Tooley v. Napolitano, 556 F.3d 836, 839 (D.C.Cir.2009) (edits omitted)). However,

[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks and citations omitted).

And, "even a pro se complainant must plead `factual matter' that permits the court to infer `more than the mere possibility of misconduct.'" Atherton, 567 F.3d at 681-82 (quoting Iqbal, 129 S.Ct. at 1950).

Under Fed.R.Civ.P. 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction, "a plaintiff bears the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction." Martens v. United States, No. 05-CV-1805, 2007 WL 2007580, at *1 (D.D.C. July 6, 2007). "[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Marsoun v. United States, 591 F.Supp.2d 41, 43 (D.D.C.2008) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

The pleadings of pro se parties "[are] to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks and citations omitted). Nonetheless, "[a] pro se complaint, like any other, must present a claim upon which relief can be granted by the court." Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted as to excuse mistakes by those who proceed without counsel.").

B. Counts IV-XIV

Applying the above standards and based on a thorough review of all the pleadings and the record herein, the Court will grant defendants' motion to dismiss Counts IV-XIV for the following reasons.

1. The individual defendants cannot be sued, either in their official or individual capacities, under Title VII or the ADEA. See 42 U.S.C. §§ 2000e-2 and -5(f)(1). Only the Secretary of the Navy is a proper defendant. Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C.Cir. 1985) (citing 42 U.S.C. § 2000e-16(c)).

2. The individual defendants cannot be sued for any tort since the United States is the only proper defendant with respect to these claims under the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Federal Tort Claims Act" or "FTCA"), 28 U.S.C. § 2679(b)(1) and (d)(1).

3. The tort claims against the United Sates under the FTCA must be dismissed for lack of jurisdiction because plaintiff has failed to exhaust his administrative remedies. 28 U.S.C. § 2675. In addition, any claims for fraud, misrepresentation and malicious abuse of power against the United States, as well as any federal defendant in his or her official capacity, must be dismissed for lack of jurisdiction, since the FTCA exempts these claims from the general waiver of sovereign immunity, see 28 U.S.C. § 2680(h), and second, federal defendants cannot be sued in their official capacity for damages because of the...