Bailey v. USA et al
MEMORANDUM OPINION & ORDER: ORDERED that the defendant's Motion to Dismiss [Record No. 10 is GRANTED. Signed by Judge Danny C. Reeves on 7/24/17.(MRS)cc: COR, Pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LARRY R. BAILEY,
UNITED STATES OF AMERICA, et al., )
Civil No. 6: 17-90-DCR
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Plaintiff Larry Bailey sued the United States and several of its agents based on his
dissatisfaction with the amenities at the Marsh Branch Boat Ramp (“Marsh Branch”),
which is operated by the United States Forest Service. Bailey asserts purchased an annual
pass to access Marsh Branch but found that the site had neither a working light nor a picnic
table. He requests injunctive relief directing the Forest Service to correct the noted
deficiencies. He has also requested summary judgment in his favor. [Record No. 1] The
defendants in response filed a motion to dismiss or, in the alternative, for summary
judgment. [Record No. 10] For the reasons that follow, the defendants’ motion will be
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to seek
dismissal of a complaint which fails to state a claim upon which relief can be granted.
Under this rule, “[t]he defendant has the burden of showing that the plaintiff has failed to
state a claim for relief.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
Federal Rule 8 requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, to survive a motion to
dismiss, the complaint must contain allegations establishing each material element required
for recovery under some actionable legal theory. Bishop v. Lucent Technologies, Inc., 520
F.3d 516, 519 (6th Cir. 2008) (internal citation and quotation marks omitted).
When reviewing a Rule 12 motion, the Court “construe[s] the complaint in the light
most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all reasonable
inferences in favor of the plaintiff.” DirecTV, Inc., 487 F.3d at 476 (citation omitted).
While pleadings drafted by pro se litigants are held to less stringent standards than those
written by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court, “need not accept
as true legal conclusions or unwarranted factual inferences.” DirecTV, Inc., 487 F.3d at
467. (citation omitted). Moreover, “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, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Thus, the plaintiff must at least “provide the grounds of his entitlement to relief,
[which] requires more than labels and conclusions. . . .” Twombly, 550 U.S. at 555 (internal
citations and quotation marks omitted).
It is also noteworthy that the Court generally may not consider matters presented
outside the pleadings without converting the motion into one for summary judgment under
Rule 56. Fed. R. Civ. P. 12(d); Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d
393, 405 (6th Cir. 2012). However, certain matters beyond the allegations in the complaint,
such as “matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint, also may be taken into account.” Amini v. Oberlin
College, 259 F.3d 493, 502 (6th Cir. 2001) (citations and internal quotation marks omitted).
In the present case, the Court is not required to consider items outside the Complaint and
its attachments. Therefore, the motion need not be converted to one seeking summary
The parties agree that the Federal Lands Recreation Enhancement Act (“FLREA”),
16 U.S.C. § 6801 et seq., governs the Secretary of Agriculture’s ability to charge fees and
provide amenities at Marsh Branch. The Secretary may charge a “standard amenity
recreation fee” for recreational lands which contain all of the following amenities:
designated parking; a permanent toilet facility; a permanent trash receptacle; an interpretive
sign, exhibit, or kiosk; picnic tables; and security services. § 6802(f)(4)(D). The plaintiff
contends that the Secretary charges a standard amenity recreation fee for access to Marsh
Branch and, therefore, must provide all of the amenities listed, including a “security light.”
[See Record No. 1, ¶ 15.]
FLREA also provides that an “expanded amenity recreation fee” may be charged
when the Secretary determines that the visitor uses a specific or specialized facility,
equipment or service. § 6802(g). The Act contemplates an expanded amenity fee for the
use of “highly developed boat launches” which include specialized features such as
mechanical or hydraulic boat lifts, multi-laned paved ramps and parking, restrooms, and
other improvements such as boarding floats, loading ramps, and fish-cleaning stations. §
6802(g)(2)(B). This fee may be charged “in addition to a standard amenity fee or by itself.”
§ 6802(g)(2). Notably, the provision regarding highly-developed boat launches does not
require the Secretary to provide safety features, a picnic table, or any other amenities. See
The defendants maintain that Marsh Branch is classified as a highly-developed boat
launch. The plaintiff concedes that Marsh Branch features multi-lane paved ramps, paved
parking, boarding floats and, of course, the boat ramp itself. 1 [Record No. 12, p. 3] A
plain reading of the statute language demonstrates that when the expanded amenity
recreation fee is charged, on its own, the Secretary is not obligated to provide the standard
recreation amenities listed under § 6802(f). While some expanded amenity sites have
safety features and picnic tables, highly-developed boat launches do not fall within that
The plaintiff raises arguments in his response that fall outside of the claims raised
in his Complaint. Essentially, he contends that citizens park at Marsh Branch for purposes
other than utilizing the boat ramp and the defendants charge them a fee. The plaintiff
argues that this amounts to a standard amenity fee. [Record No. 12, p. 3] However, the
defendants are permitted to charge for a fee for access to the boat ramp. If individuals who
Accordingly, it is not necessary to consider the affidavit of Dan Olsen, the Acting Forest
Supervisor at the Daniel Boone National Forest. [Record No. 10-2] Olsen declared that Marsh
Branch, which is within the Daniel Boone National Forest, is classified as a highly-developed
For example, developed campgrounds must have a majority of amenities listed in the statute,
which include picnic tables and “reasonable visitor protection.” § 6802(g)(2)(A).
park there choose to engage in other activities as the plaintiff suggests, this does not relieve
them of paying the required fee. Further, the plaintiff does not allege that he ever parked
at Marsh Branch for any purpose other than using the boat ramp.
The plaintiff also raises an implied-contract theory for the first time in his response.
[Record No. 12, p. 6] However, the Contract Disputes Act of 1978 governs contracts
claims against the United States. See 41 U.S.C. §§ 7101-7109. Although it does not appear
that the plaintiff has provided a colorable basis for this claim, the Court of Federal Claims
has exclusive jurisdiction for judicial review over claims under the Act. §7107. To the
extent the plaintiff’s claims are contractual in nature, the Court does not have jurisdiction
to consider them. See RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1136
(6th Cir. 1996).
Finally, the defendants report that, despite the lack of a legal obligation to do so, the
light in question has been replaced. [Record No. 10-1, p. 6] The plaintiff contends that
this development does not render the issue moot because there is a “reasonable
expectation” and a “demonstrated possibility” that the same controversy will recur. See,
e.g., Murphy v. Hunt, 455 U.S. at 478, 482 (1982). Taking the allegations of the plaintiff’s
Complaint as true, and assuming arguendo that the same controversy is likely to recur, the
plaintiff is not entitled to relief for the reasons explained above.
Based on the foregoing, it is hereby
ORDERED that the defendant’s Motion to Dismiss [Record No. 10] is
This 24th day of July, 2017.
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