Bond v. Hughes et al

Filing 14

MEMORANDUM OPINION AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis; granting 7 Motion to Dismiss; denying as moot 13 Motion to Expedite; dismissing complaint. Signed by Judge David A. Faber on 11/24/2015. (c/m 11/24/15 ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
AT BALTIMORE

WILLIAM C. BOND,
Plaintiff,
v.

Civil Action No.: 1:15-00199-DAF

JOHNNY L. HUGHES, et al.
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court are plaintiff’s motion to proceed
in forma pauperis, (Doc. No. 2), defendant Hughes’s motion to
dismiss, (Doc. No. 7), and plaintiff’s motion to expedite.
(Doc. No. 13).

For good cause shown, plaintiff’s motion to

proceed in forma pauperis is GRANTED.

For the reasons that

follow, defendant’s motion to dismiss is GRANTED, plaintiff’s
motion to expedite is DENIED as moot, and plaintiff’s complaint
is DISMISSED.
I.

Background

Plaintiff filed the instant action seeking injunctive
relief and “Qui Tam-style” relief against the United States
Marshals Service and “Unknown Named Maryland U.S. Judges.”

In

his complaint, plaintiff alleges that members of the Marshal’s
Service allow certain unnamed defendant judges to use a gun

range located within the U.S. District Courthouse in Baltimore,
Maryland.

(Doc. No. 1 at 4).

Plaintiff contends that this

practice violates federal law and the separation of powers
principles embodied in the Constitution.

Id. at 5, 6.

Plaintiff further contends that this course of conduct
improperly provides the judicial branch with a benefit
unavailable to members of the public.

Id. at 6.

Plaintiff

requests an immediate, “permanent injunction against the
illegal, unethical, and wrong use of the [United States Marshals
Service’s] gun ranges by and any all Maryland Article III, and
associated, judges.”

Id.

As part of plaintiff’s qui tam claim,

he seeks, on behalf of the United States government,
“reimbursement associated with all costs regarding the misuse of
the [United States Marshals Service’s] gun ranges by Maryland
Article III, and associated, judges going as far back as the law
allows . . .”.

Id. at 7.

Defendant Hughes filed a motion to dismiss plaintiff’s
complaint, arguing that plaintiff cannot demonstrate the
existence of subject-matter jurisdiction, preventing the court
from adjudicating plaintiff’s case.1

Defendant Hughes further

1

While counsel for defendant Hughes does not represent the
“Unknown Named Maryland U.S. Judges,” counsel represents and the
court acknowledges that the arguments raised in defendant
Hughes’s motion to dismiss apply to all defendants. (Doc. No.
7, Exh. 1 at 1).
2 

argues that, even if the court possessed jurisdiction to hear
the action, plaintiff’s complaint fails to state a claim upon
which the court can grant relief.
II.

Standard of Review

A.

Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss for lack of subject-matter jurisdiction
tests whether the court has the authority to hear a case or
controversy.

“Federal courts are courts of limited

jurisdiction, constrained to exercise only the authority
conferred by Article III of the Constitution and affirmatively
granted by federal statute.”

Gill v. PNC Bank et al., Civil

Action No. TDC-14-0677, 2015 WL 629004, at *3 (D. Md. Feb. 11,
2015) (quoting In re Bulldog Trucking, Inc., 147 F.3d 347, 352
(4th Cir. 1998)) (internal quotation marks omitted).

When a

defendant alleges that a court does not possess subject-matter
jurisdiction, the plaintiff bears the burden to demonstrate the
existence of subject-matter jurisdiction.

See Richmond,

Fredericksburg & Potomac R.R. Co. v. United States et al., 945
F.2d 765, 768 (4th Cir. 1991).

Questions of subject-matter

jurisdiction concern a court’s inherent power to adjudicate a
case and, as a result, the court must resolve these questions
before addressing the merits of a case or claim.

See Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (“The
requirement that jurisdiction be established as a threshold
3 

matter springs from the nature and limits of the judicial power
of the United States and is inflexible without
exception.”)(internal citation and quotation marks omitted).
B.

Federal Rule of Civil Procedure 12(b)(6)

Fundamentally, a 12(b)(6) motion to dismiss for failure to
state a claim upon which relief can be granted tests whether a
plaintiff’s complaint satisfies Rule 8(a)’s liberal pleading
requirements.

Rule 8(a) of the Federal Rules of Civil Procedure

requires a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
(2014).

Fed. R. Civ. P. 8(a)(2)

In deciding a motion to dismiss, the court may consider

the complaint, its attachments, and documents “attached to the
motion to dismiss, so long as they are integral to the complaint
and authentic.”

Sec’y of State for Defence v. Trimble

Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
Further, to survive a motion to dismiss, a complaint must
contain factual allegations sufficient to provide the defendant
with “notice of what the . . . claim is and the grounds upon
which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Rule

8(a)(2) requires the complaint to allege facts showing that the
plaintiff’s claim is plausible, and these “[f]actual allegations
must be enough to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.
4 

In the instant case, the heightened pleading standards of
Rule 9 apply to plaintiff’s False Claims Act claim because it
alleges fraudulent activity.

The Federal Rules of Civil

Procedure express a degree of skepticism toward claims of fraud.
Under Rule 9(b), “special matters” such as fraud must be “stated
with particularity.”

“[T]he circumstances required to be pled

with particularity under Rule 9(b) are the time, place, and
contents of the false representations, as well as the identity
of the person making the misrepresentation and what he obtained
thereby.”

Harrison v. Westinghouse Savannah River Co., 176 F.3d

776, 784 (4th Cir. 1999) (quoting 5 Wright & Miller, Federal
Practice & Procedure § 1297 at 590 (2d ed. 1990)).

Complaints

that fail to meet these heightened pleading requirements are
subject to dismissal.

Lasercomb Am., Inc. v. Reynolds, 911 F.2d

970, 980 (4th Cir. 1990).
III. Analysis
A.

The Court’s Subject-Matter Jurisdiction

Having reviewed plaintiff’s complaint and defendant
Hughes’s motion to dismiss, the court finds that it cannot
exercise subject-matter jurisdiction over the instant action
and, therefore, it must be dismissed.

As stated above, the

court can only exercise jurisdiction in those specific instances
outlined in the Constitution and by specific grant of federal
law.

As part of these limitations, Article III limits the
5 

subject-matter jurisdiction of federal courts to “cases” and
“controversies.”

See Allen v. Wright, 468 U.S. 737, 750 (1984).

As part of the “cases” and “controversies” requirement, a
plaintiff must demonstrate that he or she has standing to bring
an action.

“The Supreme Court has made clear that standing is

an essential and unchanging part of that case-or-controversy
requirement, one that states fundamental limits on federal
judicial power in our system of government.”

Doe v. Obama, 631

F.3d 157, 160 (4th Cir. 2011) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992); Allen, 468 U.S. at 750)
(internal quotation marks omitted).

To satisfy the standing

requirement, a plaintiff must demonstrate:
(1) that he has suffered an “injury in fact” that is
(a) particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.
Doe, 631 F.3d at 160 (citing Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).
Furthermore, a plaintiff cannot demonstrate standing by
stating that he or she brings suit on behalf of the general
public.

“Plaintiffs may not establish their standing to bring

suit merely because they disagree with a government policy or
because they share the ‘generalized interest of all citizens in
constitutional governance.’”

Moss et al. v. Spartanburg Cnty.

6 

Sch. Dist. Seven, 683 F.3d 599, 604–05 (4th Cir. 2012) (quoting
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,
217 (1974)).

As a result, a plaintiff may not predicate his

standing to sue “upon an interest . . . which is held in common
by all members of the public, because of the necessarily
abstract nature of the injury all citizens share.”

Raffety v.

Prince George’s Cnty. et al, 423 F. Supp. 1045, 1052 (D. Md.
1976) (quoting Schlesinger, 418 U.S. at 220) (internal quotation
marks omitted).
Plaintiff’s complaint does not evidence his standing to
bring this action because he does not allege that he has
suffered any injury as a result of the conduct for which he
complains.

He states plainly that he “brings this complaint

. . . as a member of the public.”

(Doc. No. 1 at 3 n.1).

Even

taking all of his allegations as true, plaintiff has not
established that any judicial officer’s use of the United States
Marshal’s firing range has personally affected him.

Plaintiff

argues in his response that “the direct injury to [him] is real,
as every litigant has a basic right to ‘a neutral and detached
judge.’”

However, plaintiff does not describe any instance

where he has experienced injury or even bias from a judge in
this district as a result of any judicial officer’s use of the
Marshal’s firing range.

Because plaintiff has not demonstrated

his standing to bring this suit, the court does not have
7 

constitutional authority to adjudicate this matter.
Consequently, the court must dismiss plaintiff’s complaint.2
Furthermore, plaintiff may not bring a qui tam suit without
representation.

“A lay person may not bring a qui tam action

under the False Claims Act.”

United States ex rel. Brooks v.

Lockheed Martin Corp. et al., 237 F. App’x 802 (4th Cir. 2007)
(citing United States ex rel. Lu v. Ou, 368 F.3d 773, 775–76
(7th Cir. 2004)).

Because the United States “is the real party

in interest, . . . the need for adequate legal representation on
behalf of the United States counsels against permitting pro se
suits.” Id. (citing United States ex rel. Milam v. Univ. of
Tex., 961 F.2d 46, 50 (4th Cir. 1992)).
Plaintiff argues in his response that the court must
appoint counsel for him, but the court does not find that his
case necessitates such an order.

Plaintiff does not have an

absolute right to court-appointed counsel.
[a] federal district court judge's
counsel under 28 U.S.C. § 1915(e)(1),
one, and may be considered where an
presents exceptional circumstances.
whether such circumstances exist in

Instead,
power to appoint
is a discretionary
indigent claimant
The question of
a particular case

2

While defendants “Unknown Named Maryland U.S. Judges” have not
entered an appearance in this action either pro se or through
counsel, dismissal of this action is nevertheless appropriate.
Courts have an inherent duty to analyze subject-matter
jurisdiction to ensure its existence. Arbaugh v. Y&H Corp., 546
U.S. 500, 514 92006) (citing Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999)) (“[C]ourts . . . have an independent
obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party.”).
8 

hinges on the characteristics of the claim and the
litigant. When a colorable claim exists but the litigant
has no capacity to present it, counsel should be
appointed.
Ravenell v. Corizon Med. Servs., Civil Action No. ELH-13-203,
2014 WL 470062, at *1 (D. Md. Feb. 5, 2014).
In light of plaintiff’s claims and his extensive history of
pro se representation in this district and in State court, the
court finds that his circumstances do not present an exceptional
case warranting court-appointed counsel.

As described above,

plaintiff has not demonstrated standing to bring this action and
his complaint does not assert that he has suffered any personal
injury as a result of the conduct alleged.

Furthermore,

plaintiff himself acknowledges that he is “a well known Maryland
and federal court litigator, both through counsel and pro se.”
(Doc. No. 1 at 1).

Plaintiff has capacity to present his case,

but has no colorable claim.

Taking into consideration the

characteristics of the claims at issue in this case and
plaintiff’s characteristics as a litigant, the court cannot find
that appointment of counsel is necessary.

Accordingly,

dismissal of his qui tam action is appropriate.
B.

Plaintiff’s Claim for Injunctive Relief

Plaintiff seeks a permanent injunction barring any judicial
officers from using the Marshal’s firing range, but his
complaint does not state a claim for injunctive relief, either

9 

preliminary or permanent.

“[I]njunctive relief [i]s an

extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.”

Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)
(citing Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam)).
To obtain a preliminary injunction, a plaintiff must establish
each of the following factors:

“(1) that he is likely to

succeed on the merits, (2) that he is likely to suffer
irreparable harm in the absence of preliminary relief, (3) that
the balance of equities tips in his favor, and (4) that an
injunction is in the public interest.”

Real Truth About Obama,

Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir. 2009)
(quoting Winter, 555 U.S. at 20), vacated on other grounds, 130
S.Ct. 2371 (2010).
As explained above, plaintiff’s complaint does not
establish either of the first two elements.

The court has

determined that plaintiff’s action cannot succeed on its merits
because he does not have standing to bring this action.
Further, the court has also determined that plaintiff’s
complaint fails to allege that he has suffered any injury as a
result of the conduct he claims has taken place.

As a result,

he cannot establish a likelihood of success on the merits or
that he himself is likely to suffer irreparable harm in the
absence of an injunction.

Because plaintiff cannot state a
10 

claim for preliminary injunctive relief, it follows a fortiori
that he cannot state a claim for permanent injunctive relief.
JW & JJ Entm’t, LLC et al. v. Sandler, Civil Action No. 8:13-cv01609-AW, 2013 WL 5423985, at *12 (D. Md. Sept. 26, 2013).
Accordingly, dismissal of his claim is appropriate.
Furthermore, plaintiff cannot seek injunctive relief
through use of a criminal statute or regulation.

In his

complaint, plaintiff states that defendants’ conduct is a
violation of 18 U.S.C. § 1031 and C.F.R. § 2635.704.
1 at 5).

(Doc. No.

However, 18 U.S.C. § 1031 is a criminal fraud statute

that does not allow a civil cause of action.

See El-Bey v.

Rogalski, No. GJH-14-3784, 2015 WL 1393580, at *3 (D. Md. Mar.
24, 2015) (citing Taccino v. City of Cumberland, Md., No. 092703, 2010 WL 3070146, at *2 (D. Md. Aug. 5, 2010)).

Similarly,

5 C.F.R. § 2635.704 does not create a private cause of action,
either.

The statute and regulation cited by plaintiff as the

basis for injunctive relief do not allow a private citizen to
bring suit against the government or its actors and, as a
result, dismissal of plaintiff’s claim for injunctive relief is
appropriate.
C.

Plaintiff’s False Claims Act Claim

Like his claim for injunctive relief, plaintiff’s complaint
fails to state a claim for relief under the False Claims Act.
The test for False Claims liability is (1) whether there was a
11 

false statement or fraudulent course of conduct; (2) made or
carried out with the requisite scienter; (3) that was material;
and (4) that caused the Government to pay out money or to
forfeit moneys due (i.e., that involved a “claim”).

Harrison v.

Westinghouse Savannah River Co., 176 F.3d 776, 788 (4th Cir.
1999).

Under the statute, a “claim” is a demand for money or

property presented to an officer of the United States.

See 31

U.S.C. § 3729(b)(2).
Even under Rule 8’s more lenient pleading standard,
plaintiff’s complaint fails to state a claim under the False
Claims Act.

Plaintiff’s complaint does not detail any claim

made for payment.

The failure to plead a core element of a

claim necessitates dismissal.

The same result flows from the

more exacting standard of Rule 9, which requires plaintiff to
provide significant details about the claims alleged:

who made

the claim, when it was made, to whom it was made, the amount of
money or property claimed.

Plaintiff’s complaint does not

include any such information, meaning the court must dismiss his
claim.
In his response, plaintiff argues that he “has adequately
alleged the existence of a fraudulent scheme under which every
claim submitted by defendant Hughes regarding the subject gun
range was false.”
case.

(Doc. No. 11 at 12).

To allege such a scheme, plaintiff’s complaint would
12 

This is simply not the

necessarily allege that the firing range in its entirety, from
its inception, was built for the sole purpose of allowing the
Article III judges of the District of Maryland to use it.
Plaintiff’s complaint does not allege such an origin and,
indeed, such an argument would strain credulity.

With all of

these considerations in mind, the court finds that plaintiff’s
complaint fails to state a claim for relief under the False
Claims Act.
D.

Final Considerations

The court notes that plaintiff has objected to the United
States Attorney’s Office for the District of Maryland serving as
counsel in this action.

(Doc. Nos. 5, 11).

Plaintiff argues

that the United States Department of Justice is currently
processing four Freedom of Information Act requests that he
submitted, requests for information which relate directly to
this action.

(Doc. No. 11 at 3).

Plaintiff further contends

that the False Claims Act precludes the United States Attorney’s
Office from representing defendant Hughes because the Attorney
General has an obligation to investigate such claims on the
behalf of the United States.

(Doc. No. 5 at 2).

Disqualification of an entire United States Attorney’s
Office is a drastic step that is only rarely necessary.

See

United States v. Hasarafally, 529 F.3d 125, 128 (2d Cir. 2008)
(“While a private attorney’s conflict of interest may require
13 

disqualification of that attorney’s law firm in certain cases,
such an approach is not favored when it comes to the office of a
United States Attorney.”); Matter of Grand Jury Subpoena of
Rochon, 873 F.2d 170, 176 (7th Cir. 1989) (“[D]isqualification
is a drastic measure which courts should hesitate to impose
except when absolutely necessary.” (internal citations and
quotation marks omitted)); United States v. Basciano, 763 F.
Supp. 2d 303, 312 (E.D.N.Y. 2011) (“An entire U.S. Attorney’s
Office should only be disqualified, if ever, when special
circumstances demonstrate that the interest of justice could
only be advanced by this drastic remedy.”); see also Farrell et
al., Criminal Action No. 2:14-cr-00264, 2015 WL 3891640, at *13
(S.D.W. Va. June 24, 2015) (declining to disqualify United
States Attorney’s Office where members of the Office were among
those affected by chemical spill allegedly caused by
defendants).
Disqualification in this case is an unnecessarily extreme
step, one that is unwarranted either to protect plaintiff or to
prevent an appearance of impropriety.

Plainly, the government

has chosen not to intervene in this action.

This choice does

not prevent the government from defending one of its own actors
against the same action.

While another arm of the United States

Department of Justice may be processing plaintiff’s information
requests, this does not necessarily present a conflict of
14 

interest for the United States Attorney’s Office.

Plaintiff has

not alleged that he has experienced any delay with regard to
these requests; instead, plaintiff himself acknowledges that two
of these requests have been answered already.
1–2).

(Doc. No. 13 at

Upon review of these considerations, the court finds that

disqualification of the entire United States Attorney’s Office
is unnecessary in this case.
Finally, the court denies plaintiff’s request for
alternative dispute resolution (“ADR”).

Plaintiff requested ADR

in his response to defendant Hughes’s motion to dismiss and
reiterated that request in a recent letter to the court.
No. 11 at 14–6; Doc. No. 13 at 2).

(Doc.

Plaintiff contends that “ADR

is the proper first step for this matter as the personalities
involved on all sides have clouded any rational judgments toward
resolution of the substantive issues raised in this action.”
(Doc. No. 13 at 2).

By this statement, whether intentionally or

not, plaintiff himself acknowledges that ADR is not an
appropriate mechanism for resolution of this case.

A successful

ADR process necessarily includes parties who are willing to
reach a mutually beneficial resolution.

If the parties are as

“clouded” as plaintiff claims, referring them to ADR would not
constitute an efficient use of the court’s resources or the
parties’ collective time and effort.
request for ADR is denied.
15 

Therefore, plaintiff’s

IV.

Conclusion

Accordingly, for the reasons herein stated, plaintiff’s
motion to proceed in forma pauperis, (Doc. No. 2), is GRANTED,
defendant Hughes’s motion to dismiss, (Doc. No. 7), is GRANTED,
plaintiff’s motion to expedite, (Doc. No. 13), is DENIED as
moot, and plaintiff’s complaint is DISMISSED.

The court DIRECTS

the Clerk to remove this case from the court’s docket.
The Clerk is further directed to forward a copy of this
Memorandum Opinion and Order to counsel of record and plaintiff,
pro se.
IT IS SO ORDERED this 24th day of November, 2015.
Enter:

David A. Faber
Senior United States District Judge

16