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Graham v. Secretary of Army

United States District Court, E.D. North Carolina, Western Division

May 2, 2019




         This matter is before the court on defendant's motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 23). The issues raised have been fully briefed by the parties, and in this posture are ripe for ruling. For the following reasons, defendant's motion is granted.


         Plaintiff, proceeding pro se, commenced this action on October 4, 2017, alleging numerous violations of federal law arising from an investigation into his affairs by the Army Criminal Investigation Division (“CID”). Defendant filed its first motion to dismiss for lack of subject matter jurisdiction, insufficient service of process, and failure to state a claim. On September 26, 2018, the court dismissed all of plaintiff's claims except his Bivens[1] claim for violation of the Fifth Amendment. The court allowed plaintiff leave to amend his complaint to correct deficiencies noted in the court's order, and extended time for plaintiff to properly serve defendant. Plaintiff declined to amend his complaint, but perfected service on defendant. Thereafter, defendant filed the instant motion to dismiss.


         The facts alleged in the complaint[2] may be summarized as follows. Plaintiff worked for the Army as a civilian employee in the Program Executive Office Command, Control, Communication-Tactical at Fort Bragg in North Carolina. (Compl. ¶ 2). On September 24, 2012, Derek Kinlaw (“Kinlaw”), plaintiff's co-worker, reported to CID that plaintiff had stolen military equipment from the government while plaintiff was assigned to work in Iraq. (Id. ¶ 4.b.). CID subsequently conducted an investigation into the activities of plaintiff collecting the testimony of Kinlaw and plaintiff's other co-workers, including Richard Crider (“Crider”), and Raymond Krechko (“Krechko”). (Id.) . During that investigation, CID found that plaintiff and his wife had been selling military equipment on eBay. (Id.).

         Plaintiff disputed the allegations as CID conducted its investigation and provided his own theory to the investigators in his defense. According to plaintiff, he had not stolen the military equipment in his possession, but he had lawfully obtained the equipment through valid sales of government liquidation products. (Id. ¶ 4.e.). Furthermore, Kinlaw and Crider fabricated their testimony to CID in order to cover up their own thefts of government property, while Krechko lied about the theft in retaliation for plaintiff previously counseling him for violating employee policies. (Id. ¶¶ 4.b, 4.f.).

         The Special Assistant United States Attorney (“AUSA”) reviewing CID's investigation concluded that probable cause existed to find that plaintiff had stolen government property; however, criminal proceedings were not instituted by the United States Attorney's Office because it did not believe it could meet its burden of proof at trial. (Id. ¶¶ 4.i., 4.j.).


         A. Standard of Review “To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff, ” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[, ] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).

         B. Analysis

         Plaintiff alleges CID violated his constitutional rights by investigating him but not investigating white co-workers. A Bivens claim against federal officials can be brought to remedy a violation of a person's constitutional rights. See Camreta v. Greene, 563 U.S. 692, 705 (2011); see also Ziglar v. Abbasi, 137 S.Ct. 1843, 1856 (2017) (“Bivens does vindicate the Constitution by allowing some redress for injuries...). “[T]he Constitution prohibits selective enforcement of the law based on considerations such as race.” Whren v. United States, 517 U.S. 806, 813 (1996); see Reichle v. Howards, 566 U.S. 658, 665 n.5 (2012); United States v. Mason, 774 F.3d 824, 829 (4th Cir. 2014); Williams v. Hansen, 326 F.3d 569, 585 (4th Cir. 2003). To prevail on a claim of selective law enforcement, plaintiff must allege “both discriminatory effect and that [the officer's action] was motivated by a discriminatory purpose.” Mason, 774 F.3d at 829 (citing United States v. Armstrong, 517 U.S. 456, 465 (1996)); see Iqbal, 556 U.S. at 676 (citing Washington v. Davis, 426 U.S. 229, 240 (1976)).

         “To show discriminatory effect, [plaintiff] must demonstrate . . . that ‘similarly situated individuals of a different race' were not similarly targeted by law enforcement.” Mason, 774 F.3d at 830 (citing United States v. Olvis, 97 F.3d 739, 743 (4th Cir.1996)). Factual allegations from which the court may infer discriminatory purpose include 1) evidence of a “consistent pattern” of actions by the decision maker disparately impacting a particular class of persons, 2) “historical background of the decision, ” 3) “the specific sequence of events leading up to the challenged decision, ” including “departures from the normal procedural sequence, ” and 4) “administrative history, ” including “contemporaneous statements . . . or reports.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977); Cent. Radio Co. Inc. v. City of Norfolk, Va., 811 F.3d 625, 635 (4th Cir. 2016) (internal citations omitted).

         Plaintiff alleges CID investigated him for theft, but other co-workers, Kinlaw and Young, stole property and CID did not investigate them. (See Compl. ¶ 4.i.). This allegation is sufficient to allege discriminatory effect. See Mason, 774 F.3d at 830. However, even viewed in the light most favorable to plaintiff, the discriminatory effect alleged is not a consistent pattern sufficient to infer discriminatory purpose behind the CID's investigation. See Arlington Heights, 429 U.S. at 266 (discussing the ...

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