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Peavey v. United States

United States District Court, D. Columbia.

August 26, 2015

MORRIS J. PEAVEY, Plaintiff,
UNITED STATES, et al., Defendant

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          MORRIS J. PEAVEY, Plaintiff, Pro se, Lakeland, FL.

         For UNITED STATES OF AMERICA, JOHN M. MCHUGH, Secretary of U.S. Army, E. SHESKNI, Secretary of Vetrans Affairs, ADRIENNE THOMAS, NARA Archivist, JENNIFER KALDOR, FOIA Agent, Defendants: Derrick Wayne Grace, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Wayne Holden Williams, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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         Plaintiff Morris J. Peavey, proceeding pro se, filed suit against the United States and five federal officials, asserting a variety of claims relating to Plaintiff's military service dating back to the 1960s, as well as his discharge from the military and his efforts to obtain benefits and correct his military records in the years following his discharge. The current action is the latest in a series of cases filed by Plaintiff relating to similar issues. E.g., Peavey v. United States, No. 11-937 (D.D.C. Filed May 19, 2011); Peavey v. Gonzales, No. 05-819 (D.D.C. Filed April 25, 2005). Defendants have filed a Motion to Dismiss Plaintiff's Complaint arguing that Plaintiff's claims are either barred by res judicata and collateral estoppel, time-barred by statutes of limitations, or have not been administratively exhausted. Upon consideration of the pleadings,[1] the relevant legal authorities, and the record as a whole, the Court finds that all of Plaintiff's claims must be dismissed because they are barred by res judicata, collateral estoppel, or a statute of limitations, because they have not been administratively exhausted, or because Plaintiff has failed to sufficiently plead his allegations pursuant to Federal Rule of Civil Procedure 8. Accordingly, the Court shall GRANT Defendants' Motion to Dismiss.[2]

         I. BACKGROUND

         Plaintiff's 65-page, single-spaced Complaint is far from a model of clarity. Nevertheless, the Court has been able to discern the following factual allegations from the Complaint and will accept these allegations as true for the purposes of this Motion to Dismiss. See Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681, 386 U.S. App.D.C. 144 (D.C. Cir. 2009) (" On review of a motion to dismiss, we treat the complaint's factual allegations as true and must grant [plaintiff] the benefit of all inferences that can be derived from the facts alleged." (quotation marks and alteration omitted)). According to his Complaint, while enlisted in the Army, Plaintiff was injured when he was struck as a pedestrian by an automobile in September 1966. Compl., ECF No. [1], at 12.[3] Plaintiff suffered from various health issues thereafter. Id. at 13-14. Plaintiff alleges that his injuries were not correctly

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diagnosed by the Army and, as a result, he was forced to go " AWOL seeking proper medical care." Id. at 13. Despite being allegedly " unfit for military service," Plaintiff was denied his request for a Medical Evaluation Board (" MEB" ) and was not released from service. Id. While in the Army, Plaintiff also alleges that he was " physically assaulted by a squad of Caucasian soldiers" and, after the attack, falsely imprisoned. Id. at 14, 37. Plaintiff alleges he was improperly court-martialed, demoted, and issued a Certificate of Unsuitability for Enlistment/Reenlistment. Id. at 15, 37. Plaintiff was honorably discharged from the Army on August 5, 1967. Id. at 8, 21.

         Subsequently, Plaintiff alleges, the Army and the Department of Veterans Affairs (" VA" ) " altered, substituted, or destroyed" and " obstruct[ed] access" to his U.S. Army Health Records and personnel files. Id. at 12, 38. In addition, the VA sent Plaintiff a " notice of death" and improperly " discontinued his disability benefits." Id. at 50. After his discharge, Plaintiff petitioned the Army Board for Correction of Military Records (" ABCMR" ) on May 9, 1968, to correct his military records. Id. at 11. Specifically, Plaintiff sought to have removed from his records a court-martial conviction, negative conduct efficiency reports, and a disciplinary action. Defs.' Ex., ECF No. [19-2], at E1.[4] The ABCMR denied Plaintiff's 1968 petition because there was " insufficient evidence . . . to indicate probable material error or injustice." Id. at E2; Compl. at 4.

         Several decades later, Plaintiff filed FOIA requests with the VA and the National Personnel Records Center (" NPRC" ) seeking military medical records. See Compl. at 5; Peavey I, at 188-90. Plaintiff was provided many of his requested documents. See Peavey I, at 188-90. On May 18, 2006, Plaintiff again petitioned the ABCMR for correction of his military records. Compl. at 52. Plaintiff's petition was closed without action because his " military records . . . could not be found" and, therefore, there was " not sufficient [evidence] for a thorough review of [his] case." Defs.' Ex. at E5; Compl. at 53. Plaintiff subsequently submitted several additional applications to the ABCMR requesting the same relief, as well as Freedom of Information Act (" FOIA" ) requests. However, the ABCMR indicated that it had searched for Plaintiff's military records, but had not been able to locate them and thus did not have sufficient information to review Plaintiff's case. Compl. at 5, 53. In 2010, Plaintiff petitioned the ABCMR yet again seeking removal of the court-martial and other disciplinary actions, removal of a Certificate of Unsuitability for Enlistment/Reenlistment, restoration of his rank, and a medical discharge. Id. at 21 (Nov. 3, 2010, ABCMR Application), 42, 55. Plaintiff apparently provided several documents to the ABCMR, see Defs.' Ex. at E23 (2011 ABCMR Decision), but alleges that medical records he provided were refused by

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the ABCMR because they were not authenticated, Compl. at 23. The Board conducted a review of Plaintiff's application and rendered a decision in November 2011. Although the ABCMR found Plaintiff's 2010 petition to be untimely pursuant to 10 U.S.C. § 1552(b), the ABCMR " elected to conduct a substantive review of [Plaintiff's petition] and, only to the extent relief, if any, is granted, [] determined it [was] in the interest of justice to excuse the applicant's failure to timely file." Defs.' Ex. at E23 (2011 ABCMR Decision); Compl. Ex., ECF No. [1-1], at 34 (Nov. 2, 2011, ABCMR Denial Letter). Ultimately, the ABCMR found that " [t]he evidence presented [did] not demonstrate the existence of a probable error or injustice" and, thus, there was an " insufficient" " basis for correction of the records." Defs.' Ex. at E37 (2011 ABCMR Decision).

         Plaintiff filed the present lawsuit on April 30, 2012, naming as Defendants the United States, Attorney General Eric Holder, Army Secretary John McHugh, Veterans Affairs Secretary Eric Shinseki, National Archives and Records Administration Archivist Adrienne Thomas, and FOIA Officer Jennifer Kaldor (" Officer Kaldor" ).[5] Plaintiff's causes of action assert that Defendants denied Plaintiff proper medical care and committed medical malpractice, assault and battery, and false imprisonment; obstructed Plaintiff's access to his U.S. Army Health Records under FOIA and suppressed, altered, and attempted to destroy those records; failed to correct his military records (with respect to the 2011 ABCMR decision); deprived Plaintiff of medical benefits; sent false notices of Plaintiff's death to his family; and violated various constitutional rights. See Compl. at 3, 5, 8-11, 46, 50.

         Plaintiff has filed three prior lawsuits involving the same nucleus of defendants, facts, and causes of action. The first case, filed in 2005 in this District and decided by Judge Richard Roberts in 2009, dismissed Plaintiff's complaint for lack of jurisdiction and for failure to state a claim, and entered summary judgment in favor of Defendants on Plaintiff's FOIA claims. See Peavey v. Holder, 657 F.Supp.2d 180 (D.D.C. 2009) ( Peavey I ). Plaintiff appealed and the United States Court of Appeals for the District of Columbia Circuit summarily affirmed the District Court, holding that " [t]he merits of the parties' positions are so clear as to warrant summary action." Peavey v. Holder, No. 09-5389, 2010 WL 3155823, at *1 (Aug. 9, 2010). The second case, filed in the Middle District of Florida and decided in 2011, was dismissed for failure to submit pleadings with the minimal standard of clarity after Plaintiff was given two opportunities to amend the complaint. See Peavey v. Black, No 8:09-cv-1975, 2011 WL 2457901 (M.D. FL 2011) ( Peavey II ). The third lawsuit was filed in this District in 2011 and decided by Judge James E. Boasberg. See Peavey v. United States, 846 F.Supp.2d 10 (D.D.C. 2012) ( Peavey III ). The complaint before Judge Boasberg was substantially similar to Plaintiff's Complaint presently before the Court--indeed, entire sections of Plaintiff's present Complaint have been copied word-for-word from Plaintiff's complaint in Peavey III. See Peavey III, Compl., ECF No. [1]. Judge Boasberg dismissed all of Plaintiff's claims in 2012 finding that most of the claims were based on facts and causes of actions that had been litigated and finally determined in the prior two actions and were thus barred by claim and issue preclusion. Id. at 12. As to Plaintiff's remaining

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claims, Judge Boasberg found that Plaintiff had either failed to exhaust the administrative remedies as to those claims or they were moot. Id. at 17-18. Plaintiff appealed and his appeal was dismissed as untimely. See Peavey v. United States, No. 12-5163 (Dec. 4, 2012).

         In response to Plaintiff's present Complaint filed before this Court, Defendants have moved the Court to dismiss the Complaint on the basis that it " makes largely the same claims against the same parties" at issue in Peavey III and, thus, is likewise barred by the doctrines of res judicata and collateral estoppel. Defs.' Mot., at 4. Defendants also argue that Plaintiff has failed to exhaust his administrative remedies regarding his FTCA claim against Officer Kaldor and that the statute of limitations bars judicial review of the 2011 ABCMR ruling against Plaintiff. Plaintiff has filed an opposition to Defendants' Motion to Dismiss and Defendants have filed a reply. Accordingly, Defendants' Motion is ripe for the Court's review.


         A. Lack of Subject Matter Jurisdiction (12(b)(1))

         A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). To survive a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828, 376 U.S. App.D.C. 18 (D.C. Cir. 2007). In determining whether there is jurisdiction, the Court may " consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198, 357 U.S. App.D.C. 72 (D.C. Cir. 2003) (citations omitted). " At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106, 368 U.S. App.D.C. 297 (D.C. Cir. 2005). " Although a court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1)," the factual allegations in the complaint " will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (citations omitted).

         B. Failure to State a Claim (12(b)(6))

         Federal Rule of Civil Procedure 12(b)(6) provides that a party may challenge the sufficiency of a complaint on the grounds that it " fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). " Res judicata may be raised in a Rule 12(b)(6) motion to dismiss for failure to state a claim when the defense appears on the face of the complaint and any materials of which the court may take judicial notice." Sheppard v. District of Columbia, 791 F.Supp.2d 1, 5 n. 3 (D.D.C. 2011). " The court may take judicial notice of public records from other court proceedings." Lewis v. Drug Enforcement Admin., 777 F.Supp.2d 151, 159 (D.D.C. 2011) (citing Covad Commc'ns Co. v. Bell A. Corp., 407 F.3d 1220, 1222, 366 U.S. App.D.C. 24 (D.C. Cir. 2005)).

         When evaluating a motion to dismiss for failure to state a claim, the district court must accept as true the well-pleaded factual allegations contained in the complaint. Atherton, 567 F.3d at 681. Additionally, a court may consider " the facts alleged in the ...

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