Opinion
Civil Action 3:23-cv-00529
07-19-2024
DANNY RAY SCARBOROUGH, Plaintiff, v. UNITED STATES NAVY, et al., Defendants.
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION AND BACKGROUND
Plaintiff Danny Ray Scarborough (“Plaintiff”) brings this pro se action against the United States Navy and other named defendants, including the Board for Correction of Naval Records (“Defendant”). Plaintiff alleges various claims related to his service in the Navy, including claims of fraud, perjury, abuse, and other criminal acts. He seeks a trial by jury and monetary relief.
This Court's November 13 Order narrowed this case to a complaint under the Administrative Procedure Act (“APA”) stemming from Plaintiff's allegations that Defendant's 2022 decision not to upgrade Plaintiff's discharge was arbitrary and capricious. Docket No. 12, p. 1. This Court dismissed all other claims. Id. Consistent with Fed. R. App. P. 4(a)(1)(B), the deadline for Plaintiff to contest or appeal the Court's Order has passed. As the only remaining defendant, the Defendant moves to dismiss this case as it is articulated in the Amended Complaint and as it has been narrowed by the Court's November 13 Order. Docket No. 16.
Defendant argues that the Court lacks subject matter jurisdiction over Plaintiff's claims, that Plaintiff has failed to properly serve Defendant, and that Plaintiff has failed to state a claim upon which relief can be granted. Docket No. 16 p. 1. Defendant further argues that Plaintiff's claims are barred by the doctrine of res judicata. Id. Plaintiff has filed a Response (Docket No. 18), and Defendant has filed a Reply (Docket No. 21).
For the reasons discussed below, the undersigned recommends that based on res judicata, Defendant's Motion to Dismiss be GRANTED.
II. STATEMENT OF THE CASE
This Plaintiff has filed suit in this Court twice before, filed once in 2005 and again in 2012. See Scarborough v. U.S. Marine Corps, 3:05-cv-1051, 2006 WL 1880084 (this Court); see Scarborough v. U.S. Marine Corps, No. 06-5950 (6th Cir. Jan. 29, 2007) (affirmed in the Sixth Circuit); see also Scarborough v. Naval Discharge Review Bd., 3:12-cv-1205, 2013 WL 140905. Plaintiff also attempted to reopen the 2005 case in 2008. Scarborough, 2006 WL 188008, Docket Nos. 21, 22. All the claims across these cases relate to Plaintiff's discharge from the military in 1982.
In the 2005 case, Plaintiff sued the U.S. Marine Corps, and in the 2012 case, he sued the Naval Discharge Review Board, the U.S. Marine Corps, and Defendant. This Court dismissed the 2005 case under 28 U.S.C. § 1915(e)(2)(B)(ii) following an opinion by Judge Knowles. Scarborough, 2006 WL 1880084. This Court dismissed the 2012 case under the same statute and incorporated Judge Knowles's 2006 opinion by reference in its order. Scarborough, 2013 WL 140905.
III. LAW AND ANALYSIS
A. Motion to Dismiss Under the Doctrine of Res Judicata
Res judicata or claim preclusion, “prevents parties from raising issues that could have been raised and decided in a prior action-even if they were not actually litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., 590 U.S. 405, 412 (2020). Parties may not “relitigat[e] the same ‘claim' or ‘cause of action,' even if certain issues were not litigated in the prior action.” Brownback v. King, 562 U.S. 209, 141 S.Ct. at 747 n. 3; see also J.Z.G. Res., Inc. v. Shelby Ins. Co., 84 F.3d 211, 214 (6th Cir. 1996). “Suits involve the same claim or cause of action if the later suit arises from the same transaction or involves a common nucleus of operative facts.” Brownback, 141 S.Ct. at 747 n. 3 (internal quotations omitted).
If a claim is barred by the doctrine of res judicata, “[t]he weight of authority supports dismissal for failure to state a claim.” Owens v. Shelby Cnty. Sch. Bd. of Educ., 2018 WL 4374238, at *4 (W. D. Tenn. Jul. 18, 2018), report and recommendation adopted, 2018 WL 4179076 (W. D. Tenn. Aug. 31, 2018) (collecting Sixth Circuit cases affirming Rule 12(b)(6) dismissal based on res judicata.
In the Sixth Circuit, res judicata/claim preclusion is applicable if four elements are satisfied:
(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.Trs. of Operating Eng'rs Loc. 324 Pension Fund v. Bourdow Contracting, Inc., 919 F.3d 368, 380 (6th Cir. 2019), reh'g denied (June 20, 2019) (quoting Browning v. Levy, 283 F.3d 761, 771 (6th Cir. 2002)).
In determining whether there is an identity of causes of action, courts in the Sixth Circuit evaluate whether “the claims arose out of the same transaction or series of transactions, or if the claims arose out of the same core of operative facts.” Id. at 383 quoting Winget v. JP Morgan Chase Bank, 537 F.3d 565, 580 (6th Cir. 2008)). This element is also satisfied if there is an affinity between “the facts creating the right of action and ... the evidence necessary to sustain each action,” with “the evidentiary component looking to whether the same underlying factual evidence could support and establish both claims.” Id. at 383-84 (internal citations and quotations omitted). “[T]he critical consideration is operative ‘factual overlap' between the claims.” Id. at 384 (citing Heike v. Cent. Mich. Univ. Bd. of Trs., 573 Fed.Appx. 476, 483 (6th Cir. 2014)).
Preclusion issues can be decided at the motion to dismiss stage. See, e.g., Loomis as Tr. of Lost Creek Tr. v. United States, 642 F.Supp.3d 1199, 1209 n. 9 (D. Idaho 2022); Amina v. WMC Fin. Co., 329 F.Supp.3d 1141, 1153 (D. Haw. 2018), aff'd, 812 Fed.Appx. 509 (9th Cir. 2020) (preclusion issues can be decided at Rule 12 stage, granting motion to dismiss, collecting cases); Cont'l W. Ins. Co. v. Fed. Hous. Fin. Agency, 83 F.Supp.3d 828, 832 n.2 (S.D. Iowa 2015) (similar); Coleman v. Martin, 363 F.Supp.2d 894, 903 (E.D. Mich. 2006) (similar).
B. The Case at Bar
This Court finds that dismissal is appropriate under principles of res judicata. Plaintiff cannot evade the application of res judicata by refiling the same case with Defendant and then asserting a new APA claim based on a new denial by Defendant.
Just like the complaint in 2012, this complaint meets all the elements of res judicata. Scarborough, 2013 WL 140905, at *1-3. The first, second, and third elements are met because Plaintiff's claims regarding his discharge and retirement were decided in 2006 by Judge Knowles, and the Sixth Circuit affirmed that decision. Scarborough, 2006 WL 1880084, (M. D. Tenn. July 6, 2006); cjfd Scarborough v. Naval Discharge Review Bd., No. 06-5950 (6th Cir. Jan. 29, 2007). The claims were litigated again in 2012, where Plaintiff sued Defendant in addition to other defendants. Scarborough, 2013 WL 140905 (M. D. Tenn. January 11, 2013)
The fourth element of res judicata is met because in the prior cases before this Court, Plaintiff relied on the same core of operative facts as the present case-his court-martial and December 1982 discharge with a Bad Conduct Discharge. Scarborough, 2006 WL 1880084, (M. D. Tenn. July 6, 2006), Docket No. 1, pp. 1, 4; Scarborough 2013 WL 140905 (M. D. Tenn January 11, 2013), Docket No. 1, pp. 1-2; Docket No. 11, p. 8-10. Each time Plaintiff sued, Plaintiff made repetitive requests for the same relief-that his military discharge be upgraded for medical reasons, that he be retired with a pension, and that he awarded monetary relief. In the 2005 operative complaint, Plaintiff argued:
Discharge Unwarranted. Believe Breach of Contract is Warranted. According to documents, the Record of Trial states charges would be remitted after 6 mths. But 3 years 2 mnths 14 days later, charges were brought back again.
Prove my bad conduct discharge was warranted[,] have my handwriting compared to the Spiegel order form[.] If not warranted, Provide time and grade to present date (officer)[,] order discharge to be awarded as medical under honorable service since PTSD is a valid diagnosis from Social Security[,] retire from service with pension[,] sue for fraud and breach of contract with total compensation of five million dollars.”Scarborough, 3:05-cv-1051, Docket No. 1, pp. 1, 4.
In the 2012 operative complaint, Plaintiff argued:
Petitioner would respectfully state that the Naval Discharge Review Board and the Board of Correction for Naval Records did refuse any and all Military Documentation in which supports the Charges of Fraud and Perjury committed by the United States Marine Corps.
Petitioner would respectfully state that the above-mentioned Documents were submitted to the Naval Discharge Review Board and the Board of Correction for Naval Records in order to have ILLEGAL Discharge Revolked (sic) and replaced with a Medical Discharge under General Conditions.Scarborough, 3:12-cv-1205, Docket No. 1, pp. 1-2.
In the operative complaint for the case at hand, Plaintiff argues:
If the United States Navy had called me in and PROPERLY discussed the Legal Diagnoses that the VOC had caused and offered me a Medical Discharge plus a Medical / Mental Health Organization with whom I would have received PROPER treatments, I strongly believe that I would not have developed the Chronic Disorders both Medical and Mental that has caused me to become Permanently and Totally Disabled by Social Security Administration Standards Today.
As YOUR HONORS can see, I have tried since 1986 to upgrade the illegal discharge but the Board has denied every application. They have even used False Documents against me to accomplish their denials.”
If not Legally Discharged, I Respectfully Request that a Medical Discharge under General Conditions be issuedDocket No. 11, p. 8-10.
The issues and the causes of action in all three cases, while difficult to fit precisely into a statutory framework, are the same. While the claims in the amended complaint are ambiguous, Plaintiff appears to be seeking a change in the status of his discharge, an upgraded discharge, and/or medical separation pay or military disability retirement status, the same relief as the other two previous complaints.
There is nothing new in this lawsuit that has not been litigated before in this very Court. Defendant has denied Plaintiff's requests for reconsideration to upgrade his discharge seven times before its latest decision in 2022. Docket No. 11-1, p. 1. In this latest instance, “the Board determined that [Plaintiff] did not provide any new or material evidence that has not been reviewed in [Defendant's] several prior petitions to this Board.” Id. at 2. It considered not only Plaintiff's written submissions and his service record, but it also considered his allegation that “the water at Camp Lejeune may have caused [his] mental health issues.” Id. at 2. The 2022 decision not to upgrade Plaintiff's discharge was not based on any new evidence-it was Plaintiff's latest attempt to relitigate his claims. This is barred by the doctrine of res judicata.
IV. CONCLUSION
For the reasons set forth above, the undersigned recommends that Defendants' Motion (Docket No. 16) be GRANTED and that Plaintiff's Amended Complaint (Docket No. 11) be DISMISSED WITH PREJUDICE.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days 6 from receipt of this Report and Recommendation in which to file any written objections to this Recommendation with the District Court. Any party opposing said objections shall have fourteen (14) days from receipt of any objections filed in this Report in which to file any response to said objections. Failure to file specific objections within fourteen (14) days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111 (1986).