United States District Court, D. Columbia.
MORRIS J. PEAVEY, Plaintiff,
UNITED STATES, et al., Defendant
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
J. PEAVEY, Plaintiff, Pro se, Lakeland, FL.
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.
KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
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, 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.
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. , at 12. Plaintiff suffered from
various health issues thereafter. Id. at 13-14.
Plaintiff alleges that his injuries were not correctly
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.
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. 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.
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
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).
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" ). 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.
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. . 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
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).
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
Lack of Subject Matter Jurisdiction (12(b)(1))
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)
Failure to State a Claim (12(b)(6))
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)).
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 ...