Leeper v. Viola et al

Filing 32

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing, defendants motion todismiss (Docket No. 17) is ALLOWED and plaintiffs motions to amend (Docket Nos. 22, 29 and 30) are DENIED.(Caruso, Stephanie)

United States District Court
District of Massachusetts
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Plaintiff,
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v.
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VINCENT VIOLA, SECRETARY OF THE )
ARMY, ET AL.,
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Defendants.
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MICHAEL ANDREW LEEPER,

Civil Action No.
17-cv-10185-NMG

Gorton, J.
This case arises out of the non-honorable discharge of
plaintiff Michael Andrew Leeper (“plaintiff”) from the United
States Army in 1963.

Plaintiff filed suit in 2015 contesting

that discharge but his case was dismissed in August, 2016.
Leeper v. Battery A Third Division, et al., No. 15-13791-NMG (D.
Mass. Filed Nov. 9, 2015).
Not being easily dissuaded, Mr. Leeper filed his present
complaint in February, 2017, alleging in nearly identical terms
used in his first complaint, that the discharge was a violation
of his due process rights and that he consequently suffered
damages in the amount of $10 million.
On May 26, 2017, defendants Vincent Viola, Secretary of the
Army, the United States Attorney’s Office and Shanna L. Crowin,
counsel for the Army (“defendants”) filed a motion to dismiss
plaintiff’s complaint for lack of subject matter jurisdiction
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and failure to state a claim upon which relief can be granted
pursuant to Fed. R. Civ. P. 12(b)(1) and (6).

Plaintiff has

subsequently filed motions to amend his complaint by adding
claims under the Federal Tort Claims Act (“FTCA”), under 42
U.S.C. § 1983 and for trespass.

For the reasons that follow,

the motion to dismiss will be allowed and the motions to amend
will be denied as futile.
I.

Defendants’ Motion to Dismiss
Defendants move to dismiss plaintiff’s complaint on the

grounds that 1) it is barred by issue preclusion, 2) this Court
lacks subject matter jurisdiction and 3) the statute of
limitations has run.
Defendants’ arguments in support of their motion to dismiss
are well taken.

First, the suit is barred by issue preclusion:

the plaintiff filed, essentially, the same suit one year ago and
has not alleged any new facts or provided a cure for the lack of
subject matter jurisdiction then and now. See Lowe v. United
States, 79 Fed. Cl. 218 (2007).
Second, this Court lacks subject matter jurisdiction.
Plaintiff seeks monetary damages from the Secretary of the Army,
but there is no plausible allegation that sovereign immunity has
been waived.

Moreover, the prerequisites for diversity

jurisdiction are lacking and sovereign immunity is not waived
automatically for a claim for monetary damages based upon a
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federal question. 18 U.S.C. §§ 1331, 1332; See also Sibly v.
Ball, 924 F.2d 25, 2829 (1st Cir. 1991).

Nor does the

Administrative Procedure Act, 5 U.S.C. § 702, provide a cause of
action for suits seeking monetary damages. See Com. Of P.R. v.
U.S., 490 F.3d 50, 57 (1st Cir. 1987).
Third, plaintiff’s claims, which are based upon events that
occurred in 1963, are time-barred.

Although the Tucker Act

gives the Court of Federal Claims jurisdiction over non-tort
constitutional claims against the United States for over
$10,000, transfer to that Court would be futile because
plaintiff’s claims have been brought nearly one-half of a
century after the running of the Tucker Act’s six-year statute
of limitations. 28 U.S.C. § 2501.

The three-year statute of

limitations for plaintiff’s Bivens’ claims has also long since
expired.

Rossiter v. Potter, 357 F.3d 26, 34 n.7 (1st Cir.

2004).
II.

Plaintiff’s Motion to Amend and to Add a Claim Under the
FTCA

Plaintiff moves to amend his complaint to add a claim under
the FTCA.

Defendants counter that plaintiff’s proposed FTCA

claim is without legal merit and accordingly should be denied as
futile.

This Court agrees that plaintiff’s motion to add a

claim under the FTCA is futile because he has failed 1) to
exhaust his administrative remedies under the FTCA and 2) to

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notify the Department of the Army of his claim within two years
as required in the statute. See McNiel v. United States, 508
U.S. 106, 113 (1993); See also Gonzales v. United State, 284
F.3d 281, 288 (1st Cir. 2002).
III. Plaintiff’s Motion to Amend and Add a Claim of Trespass
Plaintiff also moves to amend his complaint to add a state
tort claim of trespass.

That motion will be denied as futile

because such a claim is time-barred.

Under Massachusetts law,

M.G.L. c. 260 § 2(A), a tort action must be commenced within
three years of the accrual of the action. See Khatchatourian v.
Encompass Ins. Co. of Massachusetts, 935 N.E.2d 777, 780 (Mass.
App. Ct. 2010).

In the present case, the purported

trespass

occurred in 1963 and is thus outside of the applicable statute
of limitations.
IV.

Plaintiff’s Motion Amend and Add a 42 U.S.C. § 1983 Claim

Finally, plaintiff’s motion to add a 42 U.S.C. § 1983 claim
will be denied as futile because plaintiff has failed to meet
the state action requirement.

Section 1983 provides a remedy

for individuals whose rights have been violated by a state,
while plaintiffs may file a Bivens’ claim if the federal
government violates their rights. Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); See
Ziglar v. Abbasi, No. 15-1358, 2017 WL 2621317, at *1 (U.S. June

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19, 2017) (drawing a distinction between 14 U.S.C. § 1983 claims
and Bivens’ claims).
Plaintiff filed a Bivens’ claim, alleging federal actions
that violated his Constitutional rights in his original
complaint.

He has not, however, alleged any state actions that

would support a 42 U.S.C. § 1983 claim and thus amending his
complaint to include a § 1983 claim would be futile.
V.

Plaintiff’s So-Called “Motions”
Finally, the Court notes that the plaintiff’s so-called

“motions” are all simply print outs of statutes and cases and
are thus fundamentally deficient because it is impossible to
discern plaintiff’s arguments.

This Court will summarily deny

such “motions” and forewarns the plaintiff that if he persists
in filing such “motions” in the future, sanctions may be
imposed.

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ORDER
In accordance with the foregoing, defendants’ motion to
dismiss (Docket No. 17) is ALLOWED and plaintiff’s motions to
amend (Docket Nos. 22, 29 and 30) are DENIED.

So ordered.

/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated June 30, 2017

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