United States District Court, D. Columbia
August 30, 2005.
KURTIS E. ARMANN, Plaintiff,
DEPARTMENT OF THE ARMY, et al., Defendants.
The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
Plaintiff is a military prisoner serving a 35-year sentence
imposed by general courtmartial following a plea of guilty to
attempted premeditated murder and several other charges and
specifications. In this action brought under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), plaintiff accuses the Department of the Army and
individual officials of endangering his physical and mental
health by injecting experimental drugs into his body. Defendant
moves to dismiss the complaint pursuant to Fed.R.Civ.P.
12(b)(1) and (b)(6). They also seek dismissal pursuant to
28 U.S.C. § 1915A on the ground that the complaint is
Following the Court's advisements about responding to
defendants' motion to dismiss, see Order (Jan. 31, 2005),
plaintiff sought to voluntarily dismiss the complaint. He
subsequently withdrew that request and moved to enlarge the time to respond to
defendants' motion. Under the circumstances presented, an
enlargement of time will merely prolong the inevitable dismissal.
The Court is required to dismiss an action "[w]henever it appears
by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter." Fed.R.Civ.P. 12(h). Upon
consideration of the parties' submissions and the entire record,
the Court finds that it lacks subject matter jurisdiction and
therefore will deny plaintiff's motion for an enlargement of
time, grant defendants' Rule 12(b)(1) motion, and dismiss the
I. FACTUAL BACKGROUND
Plaintiff's plight, recounted in his 67-page amended complaint
[Dkt. No. 17 (Attachment)], began in 1995 when he was based in
Germany. He alleges that "a woman who later identified herself as
a member of the Central Intelligence Agency . . . asked [him] to
participate in a `clinical research study . . . concern[ing] the
use of ?human growth hormone in sustained use over a period of
12 months." Compl. at 8 ¶¶ 31-2. He agreed to participate in the
program, "which consisted of a waiver of informed consent" and
involved the placement of a "small time release rod" in
plaintiff's right arm. Id. ¶ 33. The program was "considered
CLASSIFIED [and] was not to be discussed with any other person
other than those predesignated by project staff." Id. ¶ 34. It
"was `active' about the first week of November 1995." Id. ¶ 35.
Between November 1995 and January 1996, plaintiff prepared for
deployment to Bosnia without any known medical problems. Id. ¶
36. In May 1996, plaintiff noticed physical changes to his body
while on leave in the United States. When he returned to service
in Hungary, he saw an Army doctor for "acne vulgaris." Id. ¶
43. After being prescribed Accutane in June 1996, plaintiff
alleges that as a side effect of the drug, he became
hypersensitive to sunlight and suffered sunburn. Id. ¶ 45. In December 1996, plaintiff sought
treatment for migraine headaches and photosensitivity. ¶ 47. In
February 1997, plaintiff was treated for overexposure to light
and a migraine headache. ¶ 49. Thereafter, plaintiff continued to
seek and receive medical treatment for a number of ailments.
Id. ¶¶ 50-57. He alleges that he was prescribed "powerful"
controlled substances. Id. ¶ 52. By September 1997, plaintiff
alleges that he was prescribed a number of medications and
experienced adverse behavioral changes about which he warned the
individuals defendants. Id. ¶¶ 57-68.
At some unspecified time, plaintiff alleges that he "placed a
phonecall [sic] to his `contact' in the Central Intelligence
Agency who stated that PFC B and any other person who knew about
the `agreement' was a liability, and accordingly, the Plaintiff
should murder PFC B according to the `reversion clause' of the
`contract.'" Id. ¶ 110. Apparently, this alleged communication
set in motion the conduct underlying plaintiff's convictions.
See id. ¶¶ 111, 122 ("Circumstances of the Offenses Against PFC
Plaintiff seeks declaratory relief and billions of dollars in
monetary damages. Military personnel cannot maintain a lawsuit
for damages "where the injuries arise out of or are in the course
of activity incident to service." Feres v. United States,
340 U.S. 135, 146 (1950) (barring claims against the government under
the Federal Tort Claims Act); see Chappell v. Wallace,
462 U.S. 296, 298-305 (1983) (extending Feres to Bivens claims against
superior officers); accord United States v. Stanley,
483 U.S. 669, 683-84 (1987) (extending Feres to Bivens claims against
non-superior officers). Plaintiff's injuries are alleged to have
occurred during his military service. The Court therefore lacks subject
matter jurisdiction over the Bivens claim for monetary damages.
Plaintiff also seeks declaratory relief. Specifically, he seeks
an order declaring that:
 defendants acted with depraved indifference to
the safety of other soldiers? and civilian
population . . . by subjecting Plaintiff to
experimental combinations of drugs then forc?ing
hi[m] to work as an aviation weapons technician; 
defendants . . . committed the act of assault
consumated[sic] by battery by forcing the Plaintiff
to go into the sun, knowing that such action was
harmful to the Plaintiff . . .  defendants . . .
committed acts of Extortion and Attempted to Effect
the Unlawful Separtation[sic] of the Plaintiff from
service by instructing the Plaintiff to violate
medical orders and the law . . .  defendants . . .
violated Plaintiff's rights by exposing [him] to
other more dangerous chemicals and experimental
depatterning[sic] procedures then subjecting the
Plaintiff to psychological reconditioning under
clandestine chemical warfare projects; and 
defendant [CIA] . . . committed the act of attempted
murder by exposing the Plaintiff to large,
experimental combinations of drugs after defendant
Meredith voiced intent, method, and justification to
take such action to end the Plaintiff's life, then
obstructed the due course of justice by concealing
their illegal actions against the Plaintiff.
Compl. at 68. The Court finds no basis for exercising its
discretion to entertain this claim under the Declaratory Judgment
Act, 28 U.S.C. § 2201(a). See Wilton v. Seven Falls Co.,
115 S.Ct. 2137, 2140 (1995); Mittleman v. United States Dept. of
Treasury, 919 F. Supp. 461, 470 (D.D.C. 1995), modified on
other grounds, 104 F.3d 410 (D.C. Cir. 1997). "Qualifying
litigants are not entitled to seek relief under the Act; rather,
the district court is to determine in its discretion whether the
litigant's claim is appropriate for a declaratory judgment."
Mittleman, 919 F. Supp. at 470 (citation omitted). Plaintiff's
allegations are the type of "fanciful claims" found so lacking in
merit as to warrant dismissal for lack of subject matter
jurisdiction. Best v. Kelly, 39 F.3d 328, 331 (D.C. Cir. 1994).
The Court therefore declines to consider plaintiff's claim for
declaratory relief. For the reasons stated, the Court grants defendants' motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(1).*fn2
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