Jarrell v. Federal Bureau of Investigation
REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Amended Complaint herein be DISMISSED WITH PREJUDICE. Objections to R&R due by 1/13/2014. Signed by Magistrate Judge Michael R Merz on 12/26/2013. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
STEPHEN PAUL JARRELL,
Case No. 3:13-cv-343
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
FEDERAL BUREAU OF
INVESTIGATION, et al.,
REPORT AND RECOMMENDATIONS
This is an action brought pro se by Plaintiff Stephen Paul Jarrell to recover damages from
various federal agencies for wrongs done him in the past forty-two years. In his Amended
Complaint Jarrell names as Defendants the United States Army, the United States Air Force, the
Department of Veterans Affairs, the National Personnel Records Center, the United States
Attorney for the Southern District of Ohio and the Attorney General of the United States (Doc.
No. 4). He also seeks permanent injunctive relief “to order the Government to stop conspiring
against me and/or members of my family.” Id. at PageID 46. The Amended Complaint contains
thirty-five separately numbered claims for relief.
Jarrell asserts this Court has subject matter jurisdiction under 42 U.S.C. § 1983. Id. at
In 1994 Jarrell sued the United States Army in this Court in Case No. C-3-94-275. In
that case he sought to recover $5 million in damages for incidents which occurred during his
enlistment in nineteen seventy-one including (1) altering and destroying records concerning an
assault on him which occurred April 12, 1971; (2) denying medical treatment for head injuries
which resulted from the assault; (3) fabricating a discharge physical and denying him access to a
doctor at Fort Ord, California, on November 5, 1971; and (4) forging discharge documents on
December 7, 1971, which were later used against him by the Army Board for The Correction of
Medical Records and the Veterans Administration to deny him relief for his disabilities.
(Decision and Order of October 11, 1994)(copy at PageID 79-84. In ordering dismissal of that
case, this court found the following undisputed facts:
Mr. Jarrell listed in the United States Army in 1971 and reported
for basic training at Fort Jackson, South Carolina, on March 26,
1971. Within two weeks he had gone AWOL but his mother
persuaded him to return. When he did so he alleges he received the
beating which started the chain of circumstances about which he
Whatever the Army did about the beating (there is factual dispute
about the adequacy of both any investigation and medical
treatment), Mr. Jarrell again went AWOL four days later. He was
eventually arrested in the southwest and taken to Fort Ord,
California, where he was offered and accepted a discharge in lieu
of court-martial. His efforts to have his discharge upgraded
through the Army Board for the Correction of Military Records
have come to naught and his application(s) to the Veterans
Administration have been denied on the basis of the character of
Id. at PageID 82.
The 1994 case was brought under the Federal Tort Claims Act. The U.S. Army Claims
Service denied Jarrell’s FTCA claim, made on May 9, 1994, because it was untimely and
because it was barred by the Feres doctrine. The Court found those two decisions were correct
and dismissed the case with prejudice on October 10, 1994. Jarrell later appealed from this
court’s denial of his motion for relief from judgment, but the Sixth Circuit affirmed. Jarrell v.
United States Army, 1996 U.S. App. LEXIS 18940 (6th Cir. 1996).
In the meantime, on November 9, 1994, Jarrell filed a new case in this court, C-3-94-463,
alleging a conspiracy on the part of United States Air Force in 1972 and 1973 for altering his
records. Because those claims could have been brought in the prior case, the Magistrate Judge
recommended dismissal with prejudice as barred by collateral estoppel (Report and
Recommendations of November 10, 1994)(copy at PageID 85-88). Judge Rice adopted that
recommendation and an appeal to the Sixth Circuit was dismissed for want of prosecution.
On April 14, 1995, Jarrell’s relatives, Maxine and Richard Jarrell, filed another suit
arising out of the same circumstances. This third suit was also dismissed with prejudice, this
time by Judge Beckwith and the Sixth Circuit affirmed. Jarrell v. United States, 1997 U.S. App.
LEXIS 2493 (6th Cir. Feb. 11, 1997)(holding complaint barred by res judicata).
Jarrell next filed suit in this Court against the National Personnel Records Center on
December 9, 2011 (Case No. 3:11-cv-434). Chief Magistrate Judge Ovington recommended on
September 23, 2013, that the case be dismissed. Judge Rice adopted that recommendation when
Jarrell failed to object. The case was dismissed on October 24, 2013, and no appeal has been
Claims Against the United States Army
Claims 1, 2, 3, 4, 5, 6, 16, 17, 18, and 19
The Amended Complaint does not disclose which of the Defendants is alleged to be
responsible for which of the thirty-five claims. The United States Attorney, representing all
Defendants, analyzes Claims 1, 2, 3, 4, 5, 6, 16, 17, 18, and 19 as being made against the United
States Army and asserts that they should be dismissed as barred by res judicata collateral
estoppel, the Feres doctrine, and the applicable statute of limitations (Motion, Doc. No. 10,
While Jarrell makes some response related to the Feres doctrine and an argument that all
Defendants and perhaps other government agencies are conspiring against him, he makes no
response to the res judicata argument. All of the claims made in Claims 1, 2, 3, 4, 5, 6, 16, 17,
18, and 19 were available to Jarrell when he first filed suit in 1994 and either were made then or
could have been made in that suit.
... [W]hen a court of competent jurisdiction has entered a final judgment on the merits of
a cause of action, the parties to the suit and their privies are bound "not only as to every matter
which was offered and received to sustain or defeat the claim or demand, but as to any other
admissible matter which might have been offered for that purpose." Cromwell v. County of Sac,
94 U.S. 351, 352 (1877). The judgment puts an end to the cause of action, which cannot again
be brought into litigation between the parties upon any ground whatever, absent fraud or some
other factor invalidating the judgment. Commissioner v. Sunnen, 333 U.S. 591, 68 S. Ct. 715, 92
L. Ed. 898 (1948), diverged from in Montana v. United States, 440 US. 147 (1979).
Res judicata “extinguishes ‘all rights of the plaintiff to remedies against the defendant
with respect to all or any part of the transaction, or series of connected transactions, out of which
the cause of action arose.’” Hamilton’s Bogarts, Inc., v. Michigan, 501 F. 3d 644 (6th Cir. 2007),
quoting Walker v. General Tel. Co., 25 F. App’x 332, 336 (6th Cir. 2001).
Because all of Jarrell’s claims against the United States Army were or should have been
litigated in his prior case against the Army, Claims 1, 2, 3, 4, 5, 6, 16, 17, 18, and 19 should be
dismissed with prejudice as barred by res judicata.
Claims 8, 25, 28, 33, and 34
Defendants also analyze Claims 8, 33, and 34 as made against the United States Army
and assert that they are barred because Jarrell has never made an administrative claim under the
Federal Torts Claims Act (“FTCA”) for these claims and, in any event, the two-year FTCA
statute of limitations has long since expired on these claims (Motion Doc. No. 10, PageID 71).
Plaintiff makes no response.
As the United States points out, filing an administrative claim under the FTCA is a
jurisdictional prerequisite to a damages suit under the FTCA. Bumgardner v. United States, 469
Fed. App’x 414 (6th Cir. 2012). Since Jarrell has not presented these claims as required by the
FTCA and it is now far too late to do so, Claims 8, 25, 28, 33, and 34 should be dismissed for
lack of subject matter jurisdiction and as barred by the statute of limitations.
Claim Against the National Personnel Records Center
Defendants analyze Claim 27 as made against the National Personnel Records Center and
Plaintiff does not dispute that analysis. Any claim against that entity is barred, under the
doctrine of res judicata, by the final judgment in Case No. 3:11-cv-434.
Claims Against Unknown Government Agents
Defendants analyze Claims 23, 24, 26, 29, 30, and 31 as made against unknown persons
from unknown government agencies. What is known about these persons is that all of their
actions against Plaintiff are alleged to have taken place at various dates between March 2, 1979,
and December 21, 1987. Accordingly the United States asserts all such claims are barred by the
statute of limitations (Motion, Doc. No. 10, PageID 73).
Plaintiff claims that he has just recently discovered those wrongful actions, but he does
not say when. The latest date on which he could have discovered the documents in the course of
3:11-cv-434 was when discovery was complete in that case, which happened more than six
Yet Plaintiff shows no evidence that he has submitted any of these claims
administratively under the FTCA. These claims should therefore be dismissed for lack of subject
Claims Against the Federal Bureau of Investigation
Defendants analyze Claims 7, 9, 12, 13, 14, and 15 as made against the Federal Bureau of
Investigation (Motion, Doc. No. 10, PageID 75). Plaintiff does not dispute that characterization.
Defendants argue that all of these claims are barred for failure to file an administrative claim and
by expiration of the two-year statute of limitations. Plaintiff makes no response and these claims
should therefore be dismissed with prejudice as barred by the statute of limitations.
Claims Against the United States Air Force
Defendants analyze Claims 10, 11, 20, and 21 as made against the United States Air
Force (Id.) and Plaintiff does not dispute that characterization.
In Claims 10 and 11, Plaintiff asserts that while he was AWOL the second time in 1971
he was staying in the basement of the Chief of Military Police at Fairchild Air Force Base and
the Office of Special Investigations did not arrest him for being AWOL and the failure to arrest
him was somehow pursuant to a conspiracy to violate his Fourteenth Amendment rights (Doc.
No. 4, PageID 35-36).
There is no Fourteenth Amendment right to be arrested. Even if there were, it would not
apply to the Office of Special Investigations because the Fourteenth Amendment only applies to
state action, not action by federal officers. These two claims do not state a claim upon which
relief can be granted. Moreover, more than forty years has expired since these events occurred.
Claims 10 and 11 should therefore be dismissed as barred by the statute of limitations.
Claim 20 is that Air Force doctors overprescribed medications for his mother between
April 1971 and May 1975. Jarrell lacks standing to raise such a claim on his mother’s behalf.
Moreover, any such claim is barred by the statute of limitations and should be dismissed with
In Claim 21 Jarrell asserts his mother’s Air Force doctor asked him questions “probing
me to find out if I could point to any cause and effect for the medical problems I was suffering
from.” Jarrell calls this “spying,” but does not complain of any secretive behavior on the
doctor’s part. More importantly, these events occurred almost forty years ago and any claim
should therefore be dismissed with prejudice as barred by the statute of limitations.
Claims Against the Department of Veterans Affairs
Defendants analyze Claims 22 and 32 as made against the Department of Veterans
Affairs (Motion, Doc. No. 10, PageID 76) and assert these claims are also barred by failure to
file an administrative claim under the FTCA and by expiration of the statute of limitations.
These defenses are obviously well taken.
Claims Against the United State Attorney
In Claim 35 Jarrell asserts that Assistant United Patrick Quinn presented false and
misleading statements to this Court in the 1994 case. Any such claim is barred by collateral
estoppel as this Court has already credited the accuracy of statements made by Mr. Quinn, the
issue was litigated in the motion for relief from judgment in that case, and finally resolved
against Jarrell when the Sixth Circuit affirmed denial of the Fed. R. Civ. P. 60(b) Motion.
In accordance with the foregoing analysis, it is respectfully recommended that the
Amended Complaint herein be DISMISSED WITH PREJUDICE.
December 26, 2013.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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