Bond v. Hughes et al

Filing 24

MEMORANDUM OPINION AND ORDER denying 17 Motion to Alter/Amend Judgment. Signed by Judge David A. Faber on 4/8/2016. (c/m 4/8/16 ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NORTHERN DIVISION

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 is plaintiff’s motion to alter or
amend the court’s judgment.1

(Doc. No. 17).

For the reasons

that follow, plaintiff’s motion is DENIED.
I.

Background

Plaintiff filed the above 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 alleged that members of the Marshals 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).

The court dismissed plaintiff’s complaint on

November 24, 2015, finding that plaintiff did not have standing
to bring the suit, the court could not exercise subject-matter

1

Plaintiff also filed a motion to supplement his Rule 59(e)
motion. (Doc. No. 20). For good cause shown, the motion is
GRANTED.

jurisdiction over the controversy and, furthermore, plaintiff had
not stated a claim for relief.

(Doc. No. 14).

In his motion to alter or amend, plaintiff seeks vacation of
the court’s order dismissing Count II of his complaint, which
sought relief under the False Claims Act (“FCA”).2
Exh. 1 at 27).

(Doc. No. 17,

Plaintiff reiterates his request for

disqualification of the entire United States Attorney’s Office
for the District of Maryland and seeks an expedited scheduling
order for the remainder of the case.

Id.

In support of his

motion, plaintiff asserts a number of errors related to the
court’s dismissal of his FCA claim, as well as arguing that the
court was required to remove the United States Attorney’s Office
from this action.

Id. at 5–26.

Plaintiff also filed a

voluminous record of exhibits to accompany his motion.

(Doc. No.

17 at Exhs. 2–7).
Furthermore, plaintiff filed a supplement to his motion to
alter or amend.

(Doc. No. 20).

In this motion, plaintiff argues

that he has been subject to intimidation and pervasive bias for
some time, (Doc. No. 20, Exh. 1 at 8–9), alleges “potential
witness obstruction” by the United States Marshals Service, and

2

The court also dismissed the first claim of plaintiff’s
complaint, seeking injunctive relief, because plaintiff did not
have standing to bring such a claim. (Doc. No. 14 at 5–11).
However, plaintiff’s motion does not appear to seek alteration or
modification of this portion of the court’s ruling.
2

alleges ethical violations on the part of the United States
Marshals Service and the Department of Justice.
II.

Id. at 7, 12–3.

Standard of Review

In his motion and supporting memoranda, plaintiff seeks to
use Federal Rule of Civil Procedure 59(e) to alter or amend the
court’s ruling dismissing the second claim of his complaint.
“Although Rule 59(e) does not itself provide a standard under
which a district court may grant a motion to alter or amend a
judgment,” the Fourth Circuit recognizes “three grounds for
amending an earlier judgment:

(1) to accommodate an intervening

change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice.”

Vance v. CHF Int’l et al., 914 F.

Supp. 2d 669, 686 (D. Md. 2012) (quoting Pac. Ins. Co. v. Am.
Nat’l Fire Ins., 148 F.3d 396, 403 (4th Cir. 1998)) (internal
quotation marks omitted).
However, a Rule 59(e) motion is not the proper mechanism to
re-litigate those matters already decided.

11 Wright et al.,

Federal Practice & Procedure, § 2801.1 (3d ed.); see also In re.
Reese, 91 F.3d 37, 39 (7th Cir. 1996) (Posner, C.J.) (“A motion
under Rule 59(e) is not authorized to enable a party to complete
presenting his case after the court has ruled against him.”)
(internal citations and quotation marks omitted).

The grant of a

Rule 59(e) motion is “an extraordinary remedy which should be
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used sparingly.”

Id.

In plaintiff’s case, he asserts no change

in controlling law and no new evidence unavailable previously.3
As a result, plaintiff’s only potential avenue for success is the
third ground for amendment of an earlier judgment:

to correct a

clear error of law or to prevent a manifest injustice.
III. Analysis
As defendant Hughes argues in his response to plaintiff’s
motion, the court addressed the substance of plaintiff’s
contentions in its denial of his motion for post-judgment
discovery.

(Doc. No. 18).

Plaintiff raises few issues in his

instant motion for alteration of judgment that the reasoning of
the court’s prior order does not address.

However, in an effort

to address plaintiff’s many arguments, the court has reexamined
his complaint and its dismissal in light of his subsequent
filings.

Upon this review, the court finds that alteration of

the court’s previous order dismissing plaintiff’s complaint is
unnecessary to correct a clear error of law or to prevent a
manifest injustice.
A.

Dismissal of Plaintiff’s FCA Claim

The court dismissed plaintiff’s complaint for a number of
reasons, namely because plaintiff cannot seek relief under the
3

While plaintiff proffers exhibits and evidence that he did not
include in his earlier filings, the court finds that these do not
relate to the court’s reasoning in dismissing his complaint and,
as a result, do not constitute new evidence previously
unavailable to plaintiff.
4

FCA as a pro se complainant and because he failed to state a
claim upon which relief can be granted.

In his motion, plaintiff

argues that the court clearly erred in these conclusions,
offering a number of arguments against dismissal of his FCA
claim.
1.

Failure to State Claim

Despite plaintiff’s arguments otherwise, his complaint did
not state a claim upon which the court could grant relief.

The

test for FCA liability is (1) whether a false statement or
fraudulent course of conduct occurred; (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).

Further, a complaint that presents an FCA claim is subject
to the heightened pleading standards of Rule 9 of the Federal
Rules of Civil Procedure, because an FCA claim alleges fraud.
Harrison, 176 F.3d at 784.

To satisfy Rule 9(b), the party who

asserts fraud “must, at a minimum, describe the time, place, and
contents of the false representations, as well as the identity of
the person making the misrepresentations and what he obtained
thereby.”

United States ex rel. Wilson v. Kellogg Brown & Root,
5

Inc., 525 F.3d 370, 379 (4th Cir. 2008) (citation and internal
quotation marks omitted).

One court has described this standard

as “the first paragraph of any newspaper story”:
when, where, and how.

the who, what,

United States ex rel. Lusby v. Rolls–Royce

Corp., 570 F.3d 849, 853 (7th Cir. 2009).

The court found that

plaintiff’s FCA claim did not detail any claim made for payment,
an omission that required dismissal.

Nothing in plaintiff’s

filings necessitates reversal or reconsideration of this finding.
Plaintiff claims that the court erred by applying a
heightened pleading standard to his FCA claim despite his pro se
status, but this is not the case.

The court found that

plaintiff’s FCA claim failed under the pleading requirements of
both Rule 8 and Rule 9.

(Doc. No. 14 at 12).

The court

acknowledges that plaintiff proceeds pro se and, as a result,
holds his filings to a less stringent standard if they were
prepared by a licensed attorney.
520-21 (1972).

Haines v. Kerner, 404 U.S. 519,

However, plaintiff’s pro se status does not

exempt him from following the Federal Rules of Civil Procedure.
Plaintiff’s FCA claim fell short of both Rule 8 and Rule 9
because he did not identify anyone who knowingly presented a
false, material claim for payment to the federal government, or
when or how such a claim was made.
Plaintiff further complains that the court should have known
that he was in possession of certain “gun range false billings”
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after he filed his complaint.

Plaintiff has attached and

summarized some of these documents in his filings related to his
motion.

However, as plaintiff acknowledges, these “false

billings” do not contain the name of the individuals who
requested payment, information which is necessary to survive a
motion to dismiss.4

The Federal Rules of Civil Procedure do not

provide plaintiff with a mechanism to file a complaint lacking
the basic essentials, then wait until he receives records to
support his claims.

His complaint did not offer sufficient facts

to survive a motion to dismiss and none of his later filings
alter this conclusion.
2.

Appointment of Counsel

Plaintiff next contends that the court erred in failing to
appoint counsel for him.

Plaintiff does not have an absolute

right to court-appointed counsel.

Instead, a judge has

discretion to appoint counsel where he or she finds exceptional
circumstances.

Ravenell v. Corizon Med. Servs., Civil Action No.

ELH-13-203, 2014 WL 470062, at *1 (D. Md. Feb. 5, 2014); see also
Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975).

4

Further, plaintiff acknowledges in his memorandum that “at no
time, as of yet, has plaintiff believed that he was in total
possession of a unified and coherent picture received via the
FOIA [sic] of the entirety of the false billings on behalf of
defendant Hughes in regard to the subject gun range.” (Doc. No.
17, Exh. 1 at 23) (emphasis in original). It is precisely this
“unified and coherent picture” that a plaintiff must present in
his or her complaint in order to survive a motion to dismiss.
7

Plaintiff’s case does not present exceptional circumstances
and, as a result, the court exercised its discretion and did not
appoint counsel to represent him.

As plaintiff himself admitted,

he sought representation but was unable to find an attorney who
would take his case.

(Doc. No. 11 at 10).

While plaintiff

argues that the nature of his case and defendants themselves are
exceptional, the court disagrees.
The recusal of the sitting judges does not render this case
exceptional, nor does the subject matter.

While plaintiff did

not name any of the defendant judges, each judge in this district
could be considered a defendant to this action.

It would be

entirely improper for a judge to participate in a case where he
or she was a defendant.

Plaintiff initiated this litigation,

accusing judicial misconduct.

He cannot now argue that their

subsequent, entirely appropriate recusal renders his case
exceptional.

The circumstances of plaintiff’s action did not,

and still do not, impose upon the court a responsibility to
appoint counsel to represent him.
3.

Pre-Dismissal Mandated Hearings and Attorney
General Consent Under the FCA

Additionally, plaintiff argues that the FCA statutorily
mandates hearings prior to dismissal of FCA actions and that the
court erred in failing to hold one in this case.

However, a

hearing is required only when the government voluntarily

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dismisses or settles an FCA action.
3730(c)(2)(A), (B) (2012).

See 31 U.S.C. §§

The court dismissed plaintiff’s

complaint and, as a result, the statute did not mandate a
hearing.

Furthermore, Local Rule 105.6 states that, unless

otherwise directed by the court, “all motions shall be decided on
the memoranda without a hearing.”

The court was not required to

hold a hearing in this matter and did not err by dismissing
plaintiff’s case without one.
Plaintiff also argues that the FCA requires the Attorney
General’s consent prior to dismissal.

However, like § 3730(c),

31 U.S.C. § 3730(b) requires the Attorney General’s assent to
dismissal only in those cases dismissed by the parties’ consent,
rather than substantive dismissals by the court.

Accordingly,

the Attorney General’s consent was unnecessary for the court to
dismiss plaintiff’s FCA claim.

4.

Proper Filing of a Qui Tam Action

While the court dismissed plaintiff’s complaint as
deficient, it also recognizes that plaintiff attempted to seek
qui tam relief without following the requirements of the FCA.
Under 31 U.S.C. § 3730(b)(2), a party who files an action seeking
qui tam relief must serve upon the government his or her
complaint “and written disclosure of substantially all material
evidence and information the person possesses” pursuant to
9

Federal Rule of Civil Procedure 4(d)(4).

Further, the complaint

must be filed in camera and must remain under seal for sixty
days.

While the court recognizes plaintiff’s pro se status, as

stated above, this status does not release plaintiff from his
obligation to follow statutory dictates or the Federal Rules of
Civil Procedure.
B.

Disqualification of the
United States Attorney’s Office

In his arguments against dismissal, plaintiff insisted that
the court remove the United States Attorney’s Office from defense
of defendant Hughes.

The court found that plaintiff’s complaint

did not state a claim upon which relief could be granted and, as
a result, dismissed his complaint.

Nevertheless, the court

addressed plaintiff’s demand that the court disqualify the United
States Attorney’s Office and found that, even if plaintiff stated
a viable claim, disqualification was unnecessary and unwarranted.
A considerable number of the arguments, allegations, and
exhibits that plaintiff offers in his motion to alter or amend
the court’s judgment and corresponding supplement address this
finding.

However, this finding, as stated above, was not a core

conclusion of the court’s order dismissing plaintiff’s complaint.
Even if the court credited all of plaintiff’s arguments that the
United States Marshals Service engaged in witness obstruction and
attempted to entrap plaintiff, (Doc. No. 20, Exh. 1 at 7–8,

10

9–10), that plaintiff has been the subject of intimidation and
pervasive bias, Id. at 8–9, and that the United States Attorney’s
Office engaged in fraud upon the court, Id. at 10–14, these
arguments do nothing to change plaintiff’s complaint.

It was and

remains deficient and the proper subject of dismissal.
C.

Dismissal of “Unknown Named Maryland U.S. Judges”

Finally, plaintiff complains that “[t]he court was premature
to dismiss the defendant ‘Judges’ before discovery.”
17, Exh. 1 at 26).
order.

(Doc. No.

However, plaintiff misconstrues the court’s

The court’s order did not dismiss any party to this

action, but instead, dismissed the action entirely, having
concluded that the court cannot exercise subject matter
jurisdiction over plaintiff’s first claim for injunctive relief
and because plaintiff failed to state an FCA claim.

Accordingly,

this argument lacks merit, as well.
IV.

Conclusion

The grant of a motion pursuant to Rule 59(e) is an
extraordinary remedy, one which is not required in this case
either to correct a clear error of law or to prevent a manifest
injustice.

Plaintiff’s motion and arguments in support thereof

represent a clear attempt to relitigate those matters the court
has already decided.
Accordingly, for the reasons herein stated, plaintiff’s
motion to alter or amend the court’s judgment pursuant to Rule
11

59(e), (Doc. No. 17), is DENIED.

The Clerk is DIRECTED to

forward a copy of this Memorandum Opinion and Order to counsel of
record and plaintiff, pro se.
IT IS SO ORDERED this 8th day of April, 2016.
Enter:

David A. Faber
Senior United States District Judge

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