United States District Court, E.D. North Carolina, Western Division
JONATHAN P. GRAHAM, Plaintiff,
SECRETARY OF THE ARMY, Defendant.
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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.
OF THE CASE
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 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.
facts alleged in the complaint 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.).
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.).
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.).
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. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009) (citations omitted).
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
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).
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