Yongo v. Department of the Army Et al. et al

Filing 31

ORDER denying 24 Motion to Strike; denying 19 Motion to Dismiss without prejudice. The parts are reminded to read the order in its entirety for critical informatioin and deadlines. Signed by Senior Judge James C. Fox on 2/7/2012. (Edwards, S.)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:IO-CV-220- F

PAUL COLLINS YONGO,
Plaintiff,
v.
UNITED STATES ARMY,
HON. ROBERT GATES,.
DEPARTMENT OF DEFENSE, and
DEFENSE FINANCIAL &
ACCOUNTING SERVICES,
Defendants.

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ORDER

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This matter is before the court on Defendants' Motion to Dismiss [DE-I9] and Plaintiff's
Motion for Entry of Default [DE-22] and Motion to Strike [DE-24].

PROCEDURAL BACKGROUND
On May 26,2010, Paul Collins Yongo ("Yongo"), proceeding pro se, filed an
Application to Proceed in District Court Without Prepaying Fees or Costs [DE-I]. Yongo
attached a proposed Complaint [DE-I. 1], a Petition for Mandatory Injunction [DE-I.2], and
proposed Summonses [DE-I.3] to the application. The caption of the proposed Complaint ' lists
the following Defendants: "Department of the Army," "Hon. Robert Gates," "Department of the

The form proposed complaint instructs the following: "(Enter above the full name of
ALL Defendant[s] in this action. Fed. R. Civ. P. IO(a) requires that the caption of the complaint
include the names of all the parties. Merely listing one party and "et al." is insufficient. Please
attach additional sheets if necessary)." Proposed Compo [DE-I. I] at p.l.
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Anny," "Department of Defense," and "Defense Accounting & Financial Services.,,2 In the body
of the proposed Complaint, Plaintiff lists the following Defendants:

(1) John McHugh, Secretary of the Army

101 Anny Pentagon, Washington, D.C. 20310

(2) Department of the Treasury, Financial Management Service
P.O. Box 1686 Binningham, AL 35201-1686
(3) J. Horne,

Defense Finance and Accounting Service, Indianapolis Center

8899 E. 56th Street, Indianapolis, Indiana, 46249

(4) Department of Defense Pentagon, Washington, DC
(5) United States of America
Proposed Compl. [DE-I. 1] at p. 2.
On November 8, 2010, United States Magistrate Judge James E. Gates, after reviewing
the Application [DE-I] and the proposed Complaint [DE-I. 1], allowed Y ongo' s Application and
found that the case was not frivolous. See November 8, 2010, Order [DE-3] at p. 1. Judge Gates
did not address the Petition for Mandatory Injunction [DE-l.2] attached to the application, and
the Clerk of Court did not docket it separately in the case. Judge Gates did direct Yongo to
provide proper summonses, and directed the United States Marshal to thereafter serve the
summonses and a copy of the Complaint on Defendants.
Thereafter, Yongo provided proposed summonses addressed to the following: (1) J.
Horne, Defense Accounting & Financial Services; (2) John McHugh, Secretary of the Anny, (3)
Hon. Robert Gates, Department of Defense, and (4) Hon. Timothy Geithner, Department of
Treasury. The record reveals that the Marshal served or attempted service using these
summonses, and also served then-United States Attorney George Holding with a later-issued
summons.

2 "Sec. John McHough [sic]" also appears in the caption, but with a strikeline through it.
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On May 2,2011, Assistant United States Attorney Seth M. Wood filed a Motion to
Dismiss [DE-19] on behalf of "Defendants." Mr. Wood did not file a Notice of Appearance as
required by Local Civil Rule 5.2. It is not clear from the Motion to Dismiss or the supporting
memorandum [DE-20] which of the defendants Mr. Wood represents.
Two days later, Yongo filed a Motion for Entry of Default [DE-22], contending that Hon.
John McHugh, 1. Horne, and the Hon. Timothy Geithner failed to respond to the Complaint. On
May 25,2011, Yongo filed a Motion to Strike Defendants' Answers and Pleadings Pursuant to

Rule l2(f) [DE-24].

MOTION TO DISMISS
In the memorandum in support of the Motion to Dismiss, "Defendants"] argue, inter alia,
that the court lacks jurisdiction over the action because Yongo failed to plead or invoke a valid
waiver of sovereign immunity. Defendants also argue that Yongo failed to state a claim over
which the court has jurisdiction. In making these arguments, Defendants only reference Yongo's
Complaint, and do not mention the Petition for Mandatory Injunction. 4
The court, however, mindful of Yongo's pro se status, believes that allegations in
Yongo's Complaint [DE-4] must be construed in conjunction with the Petition for Mandatory
Injunction [DE-1.2] wherein he, inter alia, challenges his conviction on possible constitutional
grounds. Because Defendants' Motion to Dismiss does not address the supplementation of

] The court is not certain which defendants are responsible for the motion to dismiss.
This is, perhaps, understandable. The Petition for Mandatory Injunction was not
docketed separately after Judge Gates allowed the Application to Proceed without Prepayment of
Fees, and it is unclear from the record whether Defendants were served with a copy of the
Petition.
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allegations in the Petition for Mandatory Injunction, and in particular, whether court has subject
matter jurisdiction over this action in light of the allegations in the Petition, see Allen v. United

States Air Force, 603 F.3d 423, 429-30 (8th Cir. 201 O)(finding that the court had jurisdiction
under 28 U.S.C. § 1331 to review a collateral challenge to a court-martial conviction), the motion
is DENIED without prejudice. Defendants may file their answer, or another motion to dismiss­
which addresses the allegations in both the Complaint and the Petition for Mandatory
Injunction-within twenty-one (21) days of the filing date of this order.

MOTION TO STRIKE
Yongo's Motion to Strike [DE-24] is DENIED. There is no basis to strike the
Defendants' filings in this case.

MOTION FOR ENTRY OF DEFAULT
Because the record is not clear as to which of the Defendants have joined in the Motion to
Dismiss, the court cannot rule on Yongo's Motion for Entry of Default. The Assistant United
States Attorney is ORDERED to file a Notice of Appearance within seven (7) days of the filing
date of this order which states which defendant(s) he represents in this action. The Clerk of
Court is DIRECTED to resubmit Yongo's Motion for Entry of Default upon the filing of the
Notice of Appearance.

CONCLUSION
The Motion to Dismiss [DE-19] is DENIED without prejudice. Defendants may file their
answer, or another motion to dismiss- which addresses the allegations in both the Complaint and
the Petition for Mandatory Injunction-within twenty-one (21) days of the filing date of this order.

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The Clerk of Court is DIRECTED to docket the Petition for Mandatory Injunction [DE-1.2] as an
exhibit to the Complaint [DE-4].
The Motion to Strike [DE-24] is DENIED.
The Assistant United States Attorney is ORDERED to file a Notice of Appearance within
seven (7) days of the filing date of this order. The Notice of Appearance SHALL state which
defendant(s) he represents in this action. The Clerk of Court is DIRECTED to resubmit Yongo's
Motion for Entry of Default upon the filing of the Notice of Appearance.
SO ORDERED.
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This the _ ~ day of February, 2012.

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