United States District Court, E.D. North Carolina, Western Division
KEVIN C. UMPHREYVILLE, Plaintiff,
UNITED STATES GOVERNMENT JUDICIAL BRANCH, Defendant.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on the government's motion
to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Plaintiff, proceeding in
this action pro se, has responded, the government
has replied, and plaintiff has filed a sur-reply. In this
posture, the motion is ripe for ruling. Also pending and ripe
for review is the government's motion to seal. For the
reasons that follow, the government's motions are
filed this action on January 20, 2017, alleging claims for
negligence by government employees and other individuals for
the improper dismissal of case No. 5:12-CV-635-F (E.D. N.C. )
and denial of all subsequent appeals and for corruption by
the court for ignoring evidence of prior corruption related
to criminal charges against plaintiff. Cmp. ¶¶ 49.
Plaintiffs prayer for relief seeks a monetary judgment for
fourteen years of lost liberty, the costs involved in the
pursuit of justice, and additional costs for correcting the
record and purging falsified entries in state and federal
databases. Plaintiff has filed this action pursuant to the
Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671
et seq., and the Constitution of the United States.
2002, plaintiff was a United States Marine stationed at
Parris Island, South Carolina and was charged with violating
four articles of the Uniform Military Code of Justice for
conspiring to impede an investigation and committing rape and
sodomy. Umphreyville v. Gittins, 662 F.Supp.2d 501,
503 (W.D. Va. 2009), aff'd, 366 Fed.App'x
460 (4th Cir. 2010). The charges against plaintiff were
resolved in an Article 15 nonjudicial punishment proceeding
wherein the Commanding Officer found plaintiff to have
violated two articles of the Uniform Military Code of Justice
and imposed a punishment which included a reduction in pay
grade and forfeiture of pay. Id. at 507. Plaintiff
was honorably discharged from the Marine Corps after
completing his term of enlistment. Id.
2007, plaintiff filed suit in the United States District
Court for the Western District of Virginia alleging claims
for breach of contract and legal malpractice against his
civilian attorney who represented him during a portion of the
military proceedings. Id. at 501. The court, Conrad,
J. presiding, granted the defendant's motion for summary
judgment, and that decision was affirmed by the court of
appeals. 366 Fed.App'x 460 (4th Cir. 2010). On September
27, 2012, plaintiff filed a complaint in this Court against
the United States District Court for the Western District of
Virginia and the Fourth Circuit Court of Appeals alleging
claims arising from improper acts and omissions committed by
the district court and for the court of appeals' failure
to provide proper oversight. The Court, Fox, J. presiding,
granted the government's motion for judgment on the
pleadings and dismissed plaintiffs claims; the court of
appeals affirmed the dismissal. Umphreyville v. U.S.
Dist. Court for W. Dist. of Virginia, No. 5:12-CV-635-F,
2013 WL 2635210, at *3 (E.D. N.C. June 12, 2013),
aff'd, 546 Fed.App'x 275 (4th Cir. 2013).
instant complaint alleges that the judgment in case No.
5:12-CV-635-F is incorrect and needs to be addressed. The
complaint further contends that this Court ignored past
corruption that has been established dating back to 2002 and
that by doing so it continued the corruption. Plaintiffs
allegations focus on perceived defects in plaintiffs military
proceedings and in the legal malpractice proceedings in the
Western District of Virginia. Plaintiff contends that the
defense of immunity is not applicable in light of the
corruption present in these v proceedings.
Rule of Civil Procedure 12(b)(1) authorizes dismissal of a
claim for lack of subject matter jurisdiction. When subject
matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th
Cir. 1999). "In determining whether jurisdiction exists,
the district court is to regard the pleadings'
allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment." Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). The movant's motion to
dismiss should be granted if the material jurisdictional
facts are not in dispute and the movant is entitled to
prevail as a matter of law. Id.
12(b)(6) motion tests the legal sufficiency of the complaint.
Papasan v. Allain, 478 U.S. 265, 283 (1986). When
acting on a motion to dismiss under Rule 12(b)(6), "the
court should accept as true all well-pleaded allegations and
should view the complaint in a light most favorable to the
plaintiff." Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). A complaint must allege
enough facts to state a claim for relief that is facially
plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007). Facial plausibility means that the facts
pled "allow the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,
" and mere recitals of the elements of a cause of action
supported by conclusory statements do not suffice.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
the United States, again raises the defense of judicial
immunity. It is well-settled that the United States, as
sovereign, is immune from suit unless it has consented to be
sued. United States v. Sherwood, 312 U.S. 584, 586
(1941). The "terms of [the United States'] consent
to be sued in any court define that court's jurisdiction
to entertain the suit." Id.; see also United States
v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA provides
the sole waiver of sovereign immunity for tort actions
against the United States, and provides for monetary
compensation when a government employee, acting within the
scope of employment, injures another by a negligent or
wrongful act or omission. 28 U.S.C. § 2674.
plaintiffs claims against the judicial branch of the United
States government are for negligence and corruption of the
judges presiding over his two prior federal district court
cases,  his claims fall under the FTCA. Under the
FTCA, the government is entitled to assert any defense based
upon judicial or legislative immunity which otherwise would
have been available to the employee whose act or omission
gave rise to the claim. Id. As the Court previously
held, plaintiffs claims for damages for acts of federal
judges in dismissing plaintiffs suits are barred by absolute
Few doctrines were more solidly established at common law
than the immunity of judges from liability for damages for
acts committed within their judicial jurisdiction .... This
immunity applies even when the judge is accused of acting
maliciously and corruptly, and it is not for the protection
or benefit of a malicious or corrupt judge, but for the
benefit of the public, whose interest it is that the judges
should be at liberty to exercise their functions with
independence and without fear of consequences.
Pierson v. Ray,
386 U.S. 547, 553-54 (1967)
(internal quotation and citation omitted). Judges are
entitled to absolute immunity unless it is demonstrated that
the judge acted in clear absence of all jurisdiction or that
the challenged act was not a judicial act. King v.
Myers,973 F.2d 354, 357 (4th Cir. 1992). Plaintiffs
allegations are directed at judicial acts, meaning those
normally performed by judges, and there has been no
allegation that either Judge Fox or Judge Conrad acted in
clear absence of all jurisdiction. Judicial immunity applies
to plaintiffs claims. See also Tinsley v. ...