Opinion
7:22-CV-190-M
01-05-2024
BRIAN JOHN WUEST, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER AND MEMORANDUM & RECOMMENDATION
BRIAN S. MEYERS UNITED STATES MAGISTRATE JUDGE.
Brian John Wuest has sued the United States under the Camp Lejeune Justice Act of 2022 (“CLJA”), Pub. L. No. 117-168, § 804, 136 Stat. 1802 (2022) and 28 U.S.C. Chapter 171 (the “FTCA”). [DE-9]. On November 8, 2022, plaintiff moved to proceed in forma pauperis (“IFP”), seeking to bring his lawsuit without prepaying the requisite filing fees. [DE-1]. On December 9, 2022, the court granted plaintiff's IFP application, but plaintiff's complaint [DE-9] remains before the undersigned for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). On January 20, 2023, plaintiff filed a motion to appoint counsel [DE-11]. These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1).
On March 13, 2023, the undersigned issued an order [DE-21] denying the motion to appoint counsel [DE-11] and ordering plaintiff to file a notice proving that he exhausted his administrative remedies, as required by the CLJA, before filing his claim. The court construes plaintiff's filings DEs-22, -23, -24, -29, -30, -31, -32, -34 as responses (the “responses”) to the undersigned's order [DE-21]. DE-23 additionally appears to include: (1) a second motion to appoint counsel ([DE-23] at 2-3), (2) a motion for leave to amend his complaint (id. at 2) and a request for the court to hold his current case “in abeyance until either a claim is granted or denied by the U.S. Navy” (id. at 4-5).
Plaintiff filed numerous other motions [DE-20, -26, -33, -35, -36] that this court denied by separate text orders on September 27, 2023, and October 11, 2023, in light of the Case Management Order No. 2, In re: Camp Lejeune Water Litigation, 7:23-CV-897.
For the reasons discussed below, the court DENIES plaintiff's second motion to appoint counsel [DE-23]; and RECOMMENDS that the court: (1) DISMISS plaintiff's CLJA and FTCA claims [DE-9] WITHOUT PREJUDICE; (2) DISMISS plaintiff's claims under 38 U.S.C. §§ 1101, 1110, 1151, 1301, 1710, 1781 ([DE-9] at 2) for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); (3) DENY AS MOOT plaintiff's request for leave to amend his complaint ([DE-23] at 2); (4) DENY AS MOOT plaintiff's motion to hold his case in abeyance ([DE-23] at 4-5).
For the avoidance of doubt, plaintiff MAY REFILE his CLJA claim with this court if and when his administrative claim with the Navy (allegedly filed by plaintiff in August 2023) is denied, whether formally or constructively by the Navy's failure to make a final disposition on such claim within six months of its filing.
I. BACKGROUND
Plaintiff is currently incarcerated in Arizona. [DE-1] at 5. Plaintiff's complaint [DE-9], as supplemented by the responses, [DEs-22, -23, -24, -29, -30, -31, -32, -34] alleges that he was on active duty and located at Camp Lejeune from April 1986 to September 1986. Compl. [DE-9] at 2-3; [DE-23] at 2. Plaintiff further alleges that he suffers from “hepatic stetosis [sic],” “neurobehavioral effects,” “cognitive disability,” a stent in his heart as the result of a heart attack and that his family suffered two miscarriages (Compl. [DE-9] at 2-3; [DE-23] at 2) as well as “lung problems (weakening tissue)(surgery), thyroid . . . [and] prostate.” ([DE-34] at 3).
Believing these conditions trace back to his exposure to Camp Lejeune water, plaintiff sued the United States under the CLJA and the FTCA. Compl. [DE-9] at 2. In the responses to the order, plaintiff alleges that he may have previously “signed into” or “become a part of” a “Water Registry” in 2010 or 2012 connected to problems associated with the water contamination at Camp Lejeune. [DE-23] at 4. He also alleges that the Navy has not responded to his recent queries whether signing into this water registry satisfied the administrative exhaustion requirement of the CLJA. [DE-23] at 1-2.
Plaintiff also cites to 38 U.S.C. §§ 1101, 1110, 1151, 1301, 1710, 1781 in his complaint. [DE-9] at 2. However, he does not otherwise plead a cause of action under these provisions, and context suggests that the CLJA lies at the heart of his claims. The court gave plaintiff an opportunity to address in an amended complaint any claims under such provisions that are independent of his claim under the CLJA. [DE-21] at 2 n.1. The undersigned notes that plaintiff has not done so in his responses to the order. See generally [DE-22, -23, -24, -29, -30, -31, -32, -34].
II. SECOND MOTION FOR APPOINTMENT OF COUNSEL
In connection with his complaint [DE-9], plaintiff requested that the court appoint counsel to represent him in this action. [DE-11]. The undersigned denied this request, finding that plaintiff failed to demonstrate that this case was one in which exceptional circumstances merit appointment of counsel and that his ability to make detailed filings and timely respond to the court's orders demonstrates his ability to proceed pro se. [DE-21] at 2-3.
In response to the court's order, plaintiff appears to request reconsideration of the denial of appointment of counsel. See [DE-23] at 2-3 (requesting reconsideration of the denial of appointment of counsel). He argues that he has been diagnosed with a “serious mental illness, hypothyroidism with Bi-Polar Disorder” and “dementia” and that he has made “folly already” in light of the “complex details of law.” Id. at 3.
In another filing [DE-29-2], plaintiff appears to incorrectly interpret this court's order [DE-10] in Master Docket case No. 7:23-cv-897 announcing the leadership group for all Camp Lejeune Water Litigation as appointing counsel for him. [DE-29-2] (“I've just received the Court's Order announcing my Legal team that was selected for me (Asst. of Counsel).”); see also [DE-31] at 2 (“ I will now leave all future litigation to my legal team.”).
However, for the avoidance of doubt, the court entered a text order in the docket of this case that “[t]he Leadership Group is NOT acting as your attorney in your individual case.” [Second text entry after [DE-32]]. The court has directed, inter alia: (1) the leadership group to perform certain specific responsibilities including to “fairly, effectively, and efficiently represent the interests of all plaintiffs before this [c]ourt,” (7:23-cv-897-RJ [DE-10] at 1); and (2) the Lead and Co-Lead counsel “[to] formulat[e] . . . and present[] positions on substantive and procedural issues during the Litigation and direct[] any work on the Litigation” (id. at 2). Nevertheless, “each plaintiff's individual counsel [and by extension, each individual plaintiff proceeding pro se] shall continue to be responsible for each individual plaintiff's case.” Id. at 10. Accordingly, plaintiff (or plaintiff's counsel should plaintiff in future retain counsel) still bears the final responsibility for plaintiff's case, including the timely filing a non-frivolous claim, as discussed below.
The entirety of the docket notice entered in this case on August 30, 2023, is as follows:
NOTICE - The Court has established a Plaintiffs' Leadership Group. The group and its Liaison Counsel are tasked with the responsibility to “[k]eep pro se litigants apprised of the status and progress of the Litigation.” The group has established a web site for this purpose: www.camplejeunecourtinfo.com. The website can be used as a resource by all litigants. The Leadership Group is NOT acting as your attorney in your individual case.Second text entry after [DE-32].
As discussed in the previous order [DE-21], no right to counsel exists in civil cases absent exceptional circumstances. Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The presence of “exceptional circumstances” depends upon “the type and complexity of the case, and the abilities of the individuals bringing it.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Court, 490 U.S. 296 (1989) (citation omitted); see also Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) (“If it is apparent . . . that a pro se litigant has a colorable claim but lacks the capacity to present it, the district court should appoint counsel to assist him.”).
The information provided in plaintiff's second motion to appoint counsel does not change the court's assessment that plaintiff has failed to demonstrate that this case is one in which exceptional circumstances merit appointment of counsel. The detail of plaintiff's filings demonstrates his ability to proceed pro se, as well as the fact that he has been able to make filings and timely respond to the court's orders. Accordingly, the court DENIES plaintiff's second motion to appoint counsel ([DE-23] at 2-3).
III. FRIVOLITY REVIEW
A. Applicable Legal Standards for Frivolity Review
Under 28 U.S.C. § 1915(e), the court reviews an IFP complaint to eliminate claims that unnecessarily impede judicial efficiency and the administration of justice. The court must dismiss any portion of the complaint it determines is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Id. § 1915(e)(2)(B).
The court may dismiss a complaint as frivolous because of either legal or factual shortcomings. Neitzke v. Williams, 490 U.S. 319, 325 (1989). “Legally frivolous claims are based on an ‘indisputably meritless legal theory' and include ‘claims of infringement of a legal interest which clearly does not exist.'” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (quoting Neitzke, 490 U.S. at 327). A complaint is factually frivolous when its factual allegations are “fanciful, fantastic, and delusional.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (internal citations omitted).
A complaint fails to state a claim upon which relief may be granted if it does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Plaintiff's pro se status relaxes, but does not eliminate, the requirement that his complaint contain facially plausible claims. The court must liberally construe a pro se plaintiff's allegations, but it “cannot ignore a clear failure to allege facts” that set forth a cognizable claim. Johnson v. BAC Home Loans Servicing, LP, 867 F.Supp.2d 766, 776 (E.D. N.C. 2011).
B. Claims under the CLJA and FTCA
Congress enacted the CLJA to allow plaintiffs to sue “for harm that was caused by exposure to the water at Camp Lejeune” suffered by individuals “who resided, worked, or [were] otherwise exposed” for at least 30 days between August 1, 1953, and December 31, 1987. Pub. L. No. 117168, § 804(b). Similarly, “[t]he FTCA represents a limited congressional waiver of sovereign immunity for injury or loss caused by the negligent or wrongful act of a government employee acting within the scope of his or her employment.” Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001). It permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred. 28 U.S.C § 1346(b).
Claims under the FTCA-and the CLJA-require a plaintiff to exhaust his administrative remedies before filing suit. See Pub. L. No. 117-168, § 804(h); 28 U.S.C. § 2675. For a district court to have jurisdiction over FTCA claims, a plaintiff must first present the claim to the appropriate federal agency, and the agency must have denied the claim. 28 U.S.C. § 2675(a); 28 C.F.R. § 14.2(b)(1). Similarly, under the CLJA, a plaintiff wishing to sue for harm caused by exposure to the water at Camp Lejeune must have an administrative claim for relief denied by the Navy before suing the government. See Pub. L. No. 117-168, § 804(h); Fancher v. United States, No. 5:22-CV-315, 2022 WL 17842896, at *6 (E.D. N.C. Dec. 20, 2022); Pugh v. United States, No. 7:22-CV-124-BO-BM, 2023 WL 1081262, at *4 (E.D. N.C. Jan. 27, 2023) (“Before a plaintiff may bring an action under the CLJA, he or she must first comply with the Federal Tort Claims Act (FTCA) by presenting the claim to the appropriate federal agency, here the Navy.” (citing CLJA § 804(h); 28 U.S.C. § 2675(a))); Pearce v. United States, No. 7:23-CV-3-D, 2023 WL 2290779, at *1 (E.D. N.C. Feb. 28, 2023) (“[A plaintiff] must first comply with the Camp Lejeune Justice Act's exhaustion provisions before filing suit under the Act, and ‘[t]he administrative exhaustion requirement cannot be waived.'” (quoting Fancher 2022 WL 17842896, at *7) (alteration in original)). “The administrative claim provides the Federal agency with notice sufficient to investigate the claim, assess its liability under the law, and decide whether to settle without the need for a federal lawsuit.” Fancher, 2022 WL 17842896, at *8.
The Navy has established a specific form for presenting claims, which, for the avoidance of doubt, is separate and distinct from the generic FTCA form. See Form CLAIM FOR INJURY OR DEATH, available at https://www.navy.mil/clja/ (last visited October 6, 2023). The Navy provides directions and procedures for submitting a claim using the form. See CAMP LEJEUNE JUSTICE ACT CLAIMS PROCEDURES, available at https://www.navy.mil/clja/ (last visited October 6, 2023).
“[A]dministrative claims that [plaintiffs] filed and that the Navy denied before August 10, 2022, do not satisfy the administrative exhaustion requirement of section 804(h) of the Camp Lejeune Justice Act.” See Fancher, 2022 WL 17842896, at *9. Even if signing into a water registry qualified as filing an administrative claim, and such claim was denied before August 10, 2022, whether formally, or constructively by the Navy's failure to make a final disposition on such claim within six months of its filing, see 28 U.S.C. § 2675, such claim does not satisfy the administrative exhaustion requirement of § 804(h) of the CLJA. See Fancher, 2022 WL 17842896, at *9.
The undersigned makes no finding on whether or not signing into a water registry would satisfy the administrative exhaustion requirement of the CLJA, because, in either event, plaintiff has failed to satisfy the temporal element of the administrative exhaustion requirement, as discussed herein.
In response to the court's order [DE-21], plaintiff initially confirmed that he had not exhausted the administrative exhaustion requirement under § 804(h) of the CLJA before filing suit. See [DE-23] at 4 (“I need the Court to know that No, I, Brian John Wuest have not recently tried to file claim, with the U.S. Navy”). Plaintiff's filings suggest that he filed an administrative claim with the Navy during the pendency of the current claim. See [DE-34] at 4. (“On what date was the administrative claim of this Plaintiff filed with the Department of the Navy (DON)?: August 2023.”). Although plaintiff alleges that he filed his administrative claim with the Navy during the pendency of the current claim, he has still not shown that his claim was denied, whether formally or constructively by the Navy's failure to make a final disposition on such claim within six months of its filing. Moreover, the CLJA requires a plaintiff to exhaust his administrative remedies before filing suit. See Pub. L. No. 117-168, § 804(h); 28 U.S.C. § 2675; cf. also Tyler v. Leary, No. 5:21-CT-3030-M, 2023 WL 2656754, at *2 (E.D. N.C. Mar. 27, 2023) (finding in the context of the Prison Litigation Reform Act that “[e]xhausting administrative remedies after a complaint is filed will not prevent a case from being dismissed for failure to exhaust administrative remedies.”) (emphasis added) (quoting Kitchen v. Ickes, 116 F.Supp.3d 613, 624 (D. Md. 2015)).
Accordingly, the undersigned RECOMMENDS that the court DISMISS WITHOUT PREJUDICE plaintiff's CLJA and FTCA claims [DE-9] and [DE-34].
C. Plaintiff's remaining claims
As plaintiff has not pleaded facts to support any additional causes of action under 38 U.S.C. §§ 1101, 1110, 1151, 1301, 1710, 1781 ([DE-9] at 2) in the response to the opportunity the court gave plaintiff to do so (See [DE-21] at 2 n.1), the undersigned RECOMMENDS that the court DISMISS these claims for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
As plaintiff has confirmed that he has failed to exhaust administrative remedies, his claim will not benefit from any amendments at this time. Accordingly, the undersigned RECOMMENDS that the court DENY AS MOOT plaintiff's request for leave to amend his complaint ([DE-23] at 2).
In light of the undersigned's recommendation that the court dismiss plaintiff's claim without prejudice, plaintiff will have additional opportunity to bring his CLJA and FTCA claims again in the future before the expiration of the CLJA statute of limitations, if and when he satisfies the administrative exhaustion requirement of § 804(h) of the CLJA. Accordingly, the undersigned RECOMMENDS that the court DENY AS MOOT plaintiff's request for his claim to be held in abeyance ([DE-23] at 4-5).
The statute of limitations for the CLJA is the later of “(A) the date that is two years after the date of enactment of [the CLJA, i.e., on or before August 10, 2024]; or (B) the date that is 180 days after the date on which the claim is denied under [28 USC § 2675].” Pub. L. No. 117-168, § 804 (j)(B).
V. CONCLUSION
For the reasons set forth above:
1. The court DENIES plaintiff's second motion to appoint counsel ([DE-23] at 2-3).
2. The undersigned RECOMMENDS that the court:
a. DISMISS WITHOUT PREJUDICE plaintiff's CLJA and FTCA claims [DE-9] for failure to exhaust administrative remedies;
b. DISMISS plaintiff's claims under 38 U.S.C. §§ 1101, 1110, 1151, 1301, 1710, 1781 ([DE-9] at 2) for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii);
c. DENY AS MOOT plaintiff's request for leave to amend his complaint ([DE-23] at 2); and d. DENY AS MOOT plaintiff's motion to hold his case in abeyance ([DE-23] at 4-5).
For the avoidance of doubt, the undersigned recommends that plaintiff's claims be denied without prejudice. Plaintiff could REFILE his CLJA claim with this court if and when his administrative claim with the Navy (allegedly filed by plaintiff in August 2023) is denied, whether formally or constructively by the Navy's failure to make a final disposition on such claim within six months of its filing.
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. In addition, the Clerk of the Court is directed to provide to plaintiff (i) a copy of the docket in this case (No. 7:22-cv-00190), and (ii) the following docket entries from the CLJA Master Docket, Case No. 7:23-cv-897: [DE-23; -24; -27; -28; -29; and -30], each of which have previously been provided to plaintiff by the court via United States Mail.
Plaintiff shall have until November 30, 2023 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).