Umphreyville v. The U. S. Government

Filing 20

ORDER granting 12 Motion to Seal Document 10 Response (Exhibit A); granting 14 Motion to Dismiss for Failure to State a Claim and for Lack of Jurisdiction. Signed by US District Judge Terrence W. Boyle on 7/14/2017. Certified copy sent via US mail to plaintiff at 103 Chalmette Court, Cary, NC 27513. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-35-BO
KEVIN C. UMPHREYVILLE,

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Plaintiff,

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UNITED STATES GOVERNMENT
(JUDICIAL BRANCH),
Defendant.

ORDER

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This cause comes before the Court on the government's motion to dismiss pursuant to
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Rule 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff, proceeding in this
action pro se, has responded, the government has replied, and plaintiff has filed a sur-reply. In
this posture, the motion is ripe for ruling. Also pending and ripe for review is the government's
motion to seal. For the reasons that follow, the government's motions are granted.
BACKGROUND
Plaintiff filed this action on January 20, 2017, alleging claims for negligence by
government employees and other individuals for the improper dismissal of case No. 5:12-CV635-F (E.D.N.C.) and denial of all subsequent appeals and for corruption by the court for
ignoring evidence of prior corruption related to criminal charges against plaintiff. Cmp. iii! 49.
Plaintiffs prayer for relief seeks a monetary judgment for fourteen years of lost liberty, the costs
involved in the pursuit of justice, and additional costs for correcting the record and purging
falsified entries in state and federal databases. Plaintiff has filed this action pursuant to the

Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et seq., and the Constitution of the United
States.
In 2002, plaintiff was a United States Marine stationed at Parris Island, South Carolina
and was charged with violating four articles of the Uniform Military Code of Justice for
conspiring to impede an investigation and committing rape and sodomy.

Umphreyville v.

Gittins, 662 F. Supp. 2d 501, 503 (W.D. Va. 2009), aff'd, 366 Fed. App'x 460 (4th Cir. 2010).
The charges against plaintiff were resolved in an Article 15 nonjudicial punishment proceeding
wherein the Commanding Officer found plaintiff to have violated two articles of the Uniform
Military Code of Justice and imposed a punishment which included a reduction in pay grade and
forfeiture of pay. Id. at 507. Plaintiff was honorably discharged from the Marine Corps after
completing his term of enlistment. Id.
In 2007, plaintiff filed suit in the United States District Court for the Western District of
Virginia alleging claims for breach of contract and legal malpractice against his civilian attorney
who represented him during a portion of the military proceedings. Id at 501. The court, Comad,
J. presiding, granted the defendant's motion for summary judgment, and that decision was

affirmed by the court of appeals. 366 Fed. App'x 460 (4th Cir. 2010). On September 27, 2012,
plaintiff filed a complaint in this Court against the United States District Court for the Western
District of Virginia and the Fourth Circuit Court of Appeals alleging claims arising from
improper acts and omissions committed by the district court and for the court of appeals' failure
to provide proper oversight. The Court, Fox, J. presiding, granted the government's motion for
judgment on the pleadings and dismissed plaintiffs claims; the court of appeals affirmed the
dismissal.

Umphreyville v. US. Dist. Court/or W Dist. of Virginia, No. 5:12-CV-635-F, 2013

WL 2635210, at *3 (E.D.N.C. June 12, 2013), aff'd, 546 Fed. App'x 275 (4th Cir. 2013).

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The instant complaint alleges that the judgment in case No. 5:12-CV-635-F is incorrect
and needs to be addressed.

The complaint further contends that this Court ignored past

corruption that has been established dating back to 2002 and that by doing so it continued the
corruption. Plaintiffs allegations focus on perceived defects in plaintiffs military proceedings
and in the legal malpractice proceedings in the Western District of Virginia. Plaintiff contends
that the defense of immunity is not applicable in light of the corruption present in these
proceedings.
DISCUSSION
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of
subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff has the
burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642,
647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard
the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for summary judgment."

Richmond,

Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). The
movant's motion to dismiss should be granted if the material jurisdictional facts are not in
dispute and the movant is entitled to prevail as a matter of law. Id
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v. Allain,
478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court
should accept as true all well-pleaded allegations and should view the complaint in a light most
favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A
complaint must allege enough facts to state a claim for relief that is facially plausible. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility means that the facts

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pied "allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged," and mere recitals of the elements of a cause of action supported by
conclusory statements do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Defendant, the United States, again raises the defense of judicial immunity. It is wellsettled that the United States, as sovereign, is immune from suit unless it has consented to be
sued. United States v. Sherwood, 312 U.S. 584, 586 (1941). The "terms of [the United States']
consent to be sued in any court define that court's jurisdiction to entertain the suit." Id; see also

United States v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA provides the sole waiver of
sovereign immunity for tort actions against the United States, and provides for monetary
compensation when a government employee, acting within the scope of employment, injures
another by a negligent or wrongful act or omission. 28 U.S.C. § 2674.
As plaintiff's claims against the judicial branch of the United States government are for
negligence and corruption of the judges presiding over his two prior federal district court cases, 1
his claims fall under the FTCA. Under the FTCA, the government is entitled to assert any
defense based upon judicial or legislative immunity which otherwise would have been available
to the employee whose act or omission gave rise to the claim. Id. As the Court previously held,
plaintiff's claims for damages for acts of federal judges in dismissing plaintiffs suits are barred
by absolute judicial immunity.
Few doctrines were more solidly established at common law than the immunity of
judges from liability for damages for acts committed within their judicial
jurisdiction .... This immunity applies even when the judge is accused of acting
maliciously and corruptly, and it is not for the protection or benefit of a malicious
or corrupt judge, but for the benefit of the public, whose interest it is that the
judges should be at liberty to exercise their functions with independence and
without fear of consequences.
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Insofar as plaintiff seeks to challenge the findings or authority of the military tribunal, this
Court is plainly without authority to consider such challenge.
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Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (internal quotation and citation omitted). Judges
are entitled to absolute immunity unless it is demonstrated that the judge acted in clear absence
of all jurisdiction or that the challenged act was not a judicial act. King v. Myers, 973 F.2d 354,
357 (4th Cir. 1992). Plaintiffs allegations are directed at judicial acts, meaning those normally
performed by judges, and there has been no allegation that either Judge Fox or Judge Conrad
acted in clear absence of all jurisdiction. Judicial immunity applies to plaintiffs claims. See

also Tinsley v. Widener, 150 F. Supp. 2d 7, 12 (D.D.C. 2001) (United States entitled to immunity
defense which would be available to judicial officer).
At bottom, plaintiff seeks to challenge the Court's order dismissing his claims in case No.
5:12-CV-635-F, as well the dismissal of his Western District of Virginia action. Plaintiffs
avenue for review of the judgments in his prior cases was direct appeal, which plaintiff pursued.
However, insofar as plaintiff attempts to argue that the prior judgments are void, Fed. R. Civ. P.
60(b)(4), a judgment is not void even if it is allegedly erroneous, and may only be found to be
void if the issuing court lacked jurisdiction or if the court acted in a manner inconsistent with due
process. Schwartz v. United States, 976 F.2d 213, 217 (4th Cir. 1992). Civil judgments are
generally not subject to collateral attack, as "all that due process requires in a civil case is proper
notice and service of process and a court of competent jurisdiction." Fehlhaber v. Fehlhaber,
681F.2d1015, 1027 (5th Cir. 1982). Plaintiff has failed to sufficiently allege any violation of
his due process rights or that either court lacked jurisdiction to consider his claims, and this case
is properly dismissed.
CONCLUSION
For the foregoing reasons, the government's motion to dismiss [DE 14] is GRANTED.
For good cause shown, the government's motion to seal [DE 12] is also GRANTED.

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SO ORDERED, this _i!/.day of July, 2017.

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UNITED STATES DISTRICT JUDGE

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