Opinion
1:23-CV-790-DII
04-15-2024
VICTOR STERLING, Plaintiff, v. UNITED STATES OF AMERICA; SECRETARY OF THE NAVY; and FNU LNU, COMMANDING OFFICER OF THE NAVAL STATION LONG BEACH, CALIFORNIA, Defendants.
ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MARK LANE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE:
Before the court is Defendants' Motion to Dismiss (Dkt. 22), Plaintiffs Motion to Amend (Dkt. 30), Plaintiffs Motion to Overcome Feres Doctrine and Appoint Counsel (Dkt. 31) (styled “Petition . . .”), Plaintiff s Motion for Leave to Amend Petition (Dkt. 37), and all related briefing. Having reviewed the pleadings, the relevant case law, as well as the entire case file, and determined that oral arguments are not necessary, the undersigned issues the following Order and Report and Recommendation.
United States District Judge Robert Pitman referred to the Motion to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Text order, February 26, 2024.
United States District Judge Robert Pitman referred the Motion to the undersigned for disposition pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Text order, February 26, 2024.
United States District Judge Robert Pitman referred the Motion to the undersigned for disposition pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Text order, February 26, 2024.
United States District Judge Robert Pitman referred the Motion to the undersigned for disposition pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Text order, April 1, 2024.
I. Background
Plaintiff Sterling entered the U.S. Navy in March 1981. Dkt. 1-2 (Department of the Navy Advisory Opinion ICO Former Member Victor L. Sterling, USN dated December 27, 2021). He underwent surgery to treat a knee injury that he sustained while serving on board a U.S. Navy vessel. Dkt. 1 at 2. Sterling was prescribed morphine for pain, and he developed a morphine addiction. Id.
In January 1983, Sterling was arrested by civilian authorities for possession of phencyclidine (PCP) with intent to distribute. Dkt. 1-2. He was convicted for that offense in September 1983 and discharged from the Navy under other than honorable conditions in October 1984. Id. As a result, Sterling was barred from receiving benefits from the Department of Veterans Affairs (“VA”). Dkt. 1 at 2.
Sterling filed this lawsuit on September 11, 2023, naming “the United States of America, the Secretary of the Navy, and the commanding officer of the Naval Station Long Beach, California” as defendants. Id. at 1. Sterling asserts a 42 U.S.C. § 1983 claim, alleging that Defendants failed to adequately treat his morphine addiction. Id. at 2. According to Sterling, he entered service with a pre-existing mental health condition (“pseudobulbar affect”) which, along with posttraumatic stress disorder (“PTSD”) symptoms, predisposed him to drug abuse. See Id. at 2-3. He claims that Defendants' failure to treat his morphine addiction resulted in his civil conviction and other-than-honorable discharge. Id. at 2.
The undersigned ordered Sterling to file a more definite statement, Dkt. 6, in which he clarified that he asserts two claims. Dkt. 12 at 2-3. First, Sterling alleges that Defendants' failure to provide adequate treatment for his morphine addiction violates the Fourteenth Amendment's Equal Protection Clause. Id. at 2. Second, Sterling alleges that Defendants violated the ADA by failing to provide him with “reasonable accommodations” for his morphine addiction, severe depression, and anxiety. Id. at 3. He seeks a declaration that Defendants violated his constitutional and statutory rights, an order upgrading his discharge, an order directing the VA to restore his financial and healthcare benefits, back pay, and punitive damages. Id.
Sterling asserts a claim under 42 U.S.C. § 1983, Dkt. 1 at 1, but that statute does not apply to federal officials. See Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999). Nevertheless, “[a] document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however inartfully [sic] pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); cf. Fed. Rule Civ. Proc. 8(f) (“All pleadings shall be so construed as to do substantial justice”). Because Sterling is proceeding pro se status, the court construes his claims under the federal analog to Section 1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Defendants seek to dismiss the lawsuit, contending, among other things, that this court lacks jurisdiction over Sterling's claims and that his claims are time barred. Dkt. 22. Defendants also oppose Sterling's Motion to Overcome Feres Doctrine and Appoint Counsel but only as to his request to overcome the Feres doctrine, Dkt. 32; and Defendants oppose Sterling's most recent Motion for Leave to Amend Petition. Dkt. 38.
II. Legal Standard
A. Motion to Dismiss Under Rule 12(b)(1)
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims.” In re FEMA Trailer Formaldehyde Prod. Liab. Litig., (Miss. Pls.), 668 F.3d 281, 286 (5th Cir. 2012). “Under Rule 12(b)(1), a claim is ‘properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate' the claim.” Id. (quoting Home Builders Ass'n v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). “The party asserting jurisdiction has the burden of establishing it.” McMahon v. Fenves, 946 F.3d 266, 270 (5th Cir. 2020).
Where jurisdiction is challenged, a court “is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case.” Montez v. Dep't of Navy, 392 F.3d 147, 149 (5th Cir. 2004). “A district court may dispose of a motion to dismiss for lack of subject matter jurisdiction based ‘on (1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'” Flores v. Pompeo, 936 F.3d 273, 276 (5th Cir. 2019) (quoting Robinson v. TCI/US W. Commc'ns, 117 F.3d 900, 904 (5th Cir. 1997)).
B. Motion to Dismiss Under Rule 12(b)(6)
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded must be taken as true. Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570.
The Supreme Court has made clear this plausibility standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided by “[t]wo working principles.” Id. First, although “a court must ‘accept as true all of the allegations contained in a complaint,' that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Second, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, in considering a motion to dismiss, the court must first identify pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
III. Analysis
A. Motion to Dismiss & Motion to Overcome Feres Doctrine
Sterling asserts a Bivens claim, see supra at 3 n.5, alleging that Defendants caused him to be “convicted for drug sales and barred from receiving health care and financial benefits from the [U.S. Department of Veterans Affairs].” Dkt. 1 at 2. Defendants argue that the court does not have jurisdiction to hear that claim because the injury alleged was incident to his military service. Dkt. 22 at 4.
1. Feres doctrine
The Federal Tort Claims Act (FTCA) grants federal courts jurisdiction to hear tort claims against the United States government. 28 U.S.C. § 1346. The Feres doctrine, however, provides an exception “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146 (1950). “Claims barred under the Feres doctrine are appropriately dismissed for want of jurisdiction under Federal Rule of Civil Procedure 12(b)(1).” Chandler v. United States, 713 Fed.Appx. 251, 253 (5th Cir. 2017) (unpublished) (citing Stanley v. Cent. Intel. Agency, 639 F.2d 1146, 1156-60 (5th Cir. Unit B Mar. 1981)).
“[N]o Bivens remedy is available for injuries that ‘arise out of or are in the course of activity incident to service.'” United States v. Stanley, 483 U.S. 669, 684 (1987) (quoting Feres, 340 U.S. at 146). Thus, Bivens “claims are barred when they are incident to military service.” Walch v. Adjutant Gen. Dep't of Tex., No. 07-20175, 2008 U.S. App. LEXIS 28134, at *18-19 (5th Cir. 2008) (citing Stanley, 483 U.S. at 684). The Fifth Circuit has extended Feres further and holds that it “bars all lawsuits based on injuries incident to military service.” Morris v. Thompson, 852 F.3d 416, 420 (5th Cir. 2017) (citing Crawford v. Texas Army Nat'l Guard, 794 F.2d 1034, 1035- 36 (5th Cir. 1986)). Continuing torts that originate during service are “squarely within the Feres doctrine and leaves [courts] without jurisdiction to entertain the claims.” Gaspard v. United States, 713 F.2d 1097, 1101 (5th Cir. 1983).
“Medical malpractice by a physician employed by the military, in a military hospital, and in the course of treatment of a person in active military service has been clearly held to fall within ‘the course of activity incident to service.'” Hayes v. United States ex rel. United States Dep't of Army, 44 F.3d 377, 378-79 (5th Cir. 1995) (quoting Shults v. United States, 421 F.2d 170, 171-72 (5th Cir. 1969)).
Whether an activity is incident to military service is analyzed under a three-part test: (1) duty status, (2) site of injury, and (3) activity being performed. Parker v. United States, 611 F.2d 1007, 1013-15 (5th Cir. 1980). There is no dispute that the facts of this case clearly involve actions taken by active-duty service members on military installations or facilities during military functions. Dkt. 22 at 7 (citing Dkt. 1 at 1-2 & Dkt. 1-2). Sterling's claims are thus incident to service, and Feres applies.
Sterling in a separate motion, however, contends that because he alleges intentional misconduct by his commanding officer, the Feres doctrine is inapplicable. Dkt. 31 at 2. In his Motion to Overcome Feres Doctrine, he cites two cases: Brooks v. United States and Feres. Id.
Sterling reports that Brooks is a 1999 case but does not identify the issuing court. Id. He asserts that the Brooks involved “[a] service member [who] contracted HIV from contaminated blood transfusions due to deliberate concealment by high-ranking officials.” Id. (emphasis in original). He suggests Brooks “demonstrates that deliberate actions with known risks can qualify as intentional misconduct, similar to the alleged knowledge and calculated avoidance in [his] case.” Id. A search of commercial legal database Lexis+ did not produce a 1999 Brooks v. United States case that stands for the proposition Sterling asserts. The Brooks v. United States cases in the U.S. Supreme Court or the Fifth Circuit in 1999 did not involve the Feres doctrine.
There is a 1949 Brooks case that involved the Federal Tort Claims Act and service members. In that case, the Supreme Court held that service members injured by the government (there the U.S. Army) could bring suit if their injuries were not incident to their military service. Brooks v. United States, 337 U.S. 49, 52 (1949) (“Were the accident incident to the Brooks'[s] service, a wholly different case would be presented.”).
A Lexis+ search for the terms “HIV” and “Feres” returned three cases, one of which involved a service member and a blood transfusion like the facts Sterling alleges. See Dkt. 31 at 2. In that case, a service member contracted AIDS and died after receiving a blood transfusion of HIV-positive blood while under the care of a U.S. Navy physician. L.J.B. ex rel. R.W.H. v. United States, CIVIL ACTION NO. 96-3935 SECTION “T” (1), 1997 U.S. Dist. LEXIS 4768, at *3 (ED. La. 1997). There the plaintiffs alleged that the U.S. Navy's negligence led to the death of the service member. Id. at *22. Because the blood transfusion was received while the decedent was on active duty aboard a naval vessel, the L.J.B. court concluded he sustained his injuries incident to his service and dismissed the survivors' lawsuit for lack subject matter jurisdiction pursuant to Feres. Id. at *23-24.
The parties do not dispute that this lawsuit implicates the Feres doctrine, which imposes a jurisdictional bar. Dkt. 31 at 3. Sterling's argument that intentional misconduct removes the Feres doctrine's jurisdictional bar is without authority. See supra at 6-7. “Though the Feres doctrine has been subject to criticism, United States v. Johnson, 481 U.S. 681, 692-703 (1987) (Scalia, J., dissenting)[,] it is Supreme Court precedent binding on this court.” Morris v. Thompson, 852 F.3d 416, 421 (5th Cir. 2017). Accordingly, the undersigned will deny Sterling's Motion to Overcome the Feres Doctrine and recommend that the District Court grant Defendants' Motion to Dismiss and dismiss Sterling's claims for lack of subject matter jurisdiction. 2. Statute of limitations
Sterling challenges the medical care provided by Defendants in the early 1980s that he alleges led to his discharge. Dkt. 1 at 2; Dkt. 12 at 2. Defendants argue that his equal protection claim and his ADA claim are time-barred and must be dismissed. Dkt. 22 at 8.
“Under federal law, a claim accrues and ‘the limitations period begins to run the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.'” Spotts v. United States, 613 F.3d 559, 574 (5th Cir. 2010) (quoting Piotrowski v. City of Hous., 237 F.3d 567, 576 (5th Cir. 2001)). “[T]he statute of limitations period on a Bivens claim is two years, the statute of limitations governing personal injuries in Texas.” Id. at 573. The same is true for ADA claims. See Frame v. City of Arlington, 657 F.3d 215, 237 & n.113 (5th Cir. 2011) (applying two-year limitations period to ADA and Rehabilitation Act claims). And any FTCA claim must have been presented for administrative resolution “within two years after such claim accrues.” 28 U.S.C. § 2401(b). Moreover, “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Thus, Sterling's Bivens and ADA claims are subject statutes of limitations that expired decades ago.
Additionally, challenges to military discharge decisions accrue on the date of discharge. See Young v. United States, 529 F.3d 1380, 1383 (Fed. Cir. 2008) (“[A] cause of action for monetary losses resulting from a wrongful discharge accrues the date of discharge.”). Sterling seeks an order upgrading his discharge. Dkt. 1 at 4. But that claim accrued on the date of discharge-October 5, 1984, Dkt. 31 at 6-thus the statute of limitations ran decades ago.
Sterling seeks backpay in an unspecified amount. Id. Suits by former service members seeking backpay are governed by the rules of the Federal Circuit. See Geyen v. Marsh, 782 F.2d 1351, 1352 & n.1 (5th Cir. 1986). Claims “for monetary losses resulting from a wrongful discharge accrue[] the date of discharge.” Young, 529 F.3d at 1383. The Federal Circuit does not permit tolling. Geyen, 782 F.2d at 1352. Sterling was discharged October 5, 1984, Dkt. 31 at 6, and he filed this lawsuit on September 11, 2023, Dkt. 1 at 1, which is more than six years after his discharge date. Thus, his claim for backpay is time-barred. See 28 U.S.C. § 2401(a).
The Court of Federal Claims has exclusive jurisdiction over claims exceeding $10,000. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1); Amoco Prod. Co. v. Hodel, 815 F.2d 352, 358 (5th Cir. 1987).
In sum, the statute of limitations on Sterling's various claims began to run in October 1984 when he was discharged from the Navy and expired in 1990 at the latest. See Dkt. 1 at 1; Dkt. 1-1; Dkt. 12 at 2-3. Sterling filed this lawsuit in September 2023, which is decades after the statute of limitations had run on his claims. Tolling for his claims is barred, or he otherwise alleges no actions that tolled the limitations period. Thus, his claims are time-barred. Piortroski, 237 F.3d at 573; see Frame, 657 F.3d at 237; 28 U.S.C. § 2401(a).
Sterling's Complaint includes a 2021 advisory opinion from the Board for Correction of Naval Records (BCNR). Dkt. 1-2. But because Sterling challenges Defendants' actions in the 1980s that led to his discharged, the BCNR advisory opinion does not affect accrual of his claim. The Administrative Procedures Act waives immunity only for non-monetary claims. King v. United States Dep't of Veterans Affairs, 728 F.3d 410, 416 (5th Cir. 2023); 5 U.S.C. § 702.
B. Motions for leave to amend
On February 9, 2024, Sterling moved to correct the cause number in earlier filings from 1:23-23-1082-DII-Ml to 1:23-cv-01082. Dkt. 30. Thus, his motion concerns housekeeping matters, which do not appear to the undersigned to have affected the efficient prosecution of this litigation. Considering the orders and recommendations contained herein, the undersigned will moot that motion.
On March 28, 2024, Sterling filed another motion seeking leave to amend his complaint. Dkt. 37. He asserts the amendment:
is necessary to:
• Address legal arguments: More effectively present arguments related to overcoming the Feres Doctrine, Sovereign Immunity, and the Statute of Limitations.
• Improve clarity and conciseness: Enhance the clarity and organization of the Petition to better adhere to court rules and procedures.Dkt. 37 at 2 (emphasis, bullets, and capitalizations in original). Sterling contends that amendment “will allow [him] to further seek mental health assessment which will justify the appointment of qualified legal counsel.” Id. at 3. Sterling also adds a claim under the Privacy Act. Dkt. 37 at 4. Defendants oppose Sterling's motion. Dkt. 38.
The Motion and accompanying documents do not reference the equal protection and ADA claims referenced in the Complaint. Compare Dkt. 37 with Dkt. 1. However, construing Sterling's filings liberally, Leatherman, 507 U.S. at 164, the undersigned will treat the newly asserted Privacy Act Claim as an additional claim.
“The court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). “Rule 15(a) ‘requires the trial court to grant leave to amend freely, and the language of this rule evinces a bias in favor of granting leave to amend.'” Pipkin v. Contract Freighters, No. 1:23-CV-1409-RP, 2024 U.S. Dist. LEXIS 36575, at *2 (W.D. Tex. 2024) (Pitman, J.) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002)). “But leave to amend ‘is by no means automatic.'” Id. (quoting Davis v. United States, 961 F.2d 53, 57 (5th Cir. 1991)). “A district court may deny leave to amend if it has a ‘substantial reason' to do so.” Id. (quoting Lyn-Lea Travel Corp., 283 F.3d at 286. “The futility of amendment is one such substantial reason to deny leave to amend.” Id. (citing Stripling v. Jordan Prod. Co., 234 F.3d 863, 872-73 (5th Cir. 2000)). “A proposed amendment is futile if it fails to state a claim upon which relief could be granted.” Id. (citing Stripling, 234 F.3d at 873). “Therefore, in determining futility, this Court will apply the ‘the same standard of legal sufficiency as applies under Rule 12(b)(6).'” Id. (quoting Stripling, 234 F.3d at 873).
The Privacy Act prohibits disclosure of “any record which is contained in a system of records to any person, or to any other agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless the disclosure of the record” falls within one of the enumerated Privacy Act exceptions. 5 U.S.C. § 552a(b). “To establish that an agency failed to comply with the Privacy Act, a plaintiff must demonstrate that: (1) the information is a ‘record' within a ‘system of records;' (2) the agency disclosed the information; (3) the disclosure adversely affected the plaintiff; and (4) the disclosure was willful or intentional.” Grams v. United States, No. SA-10-CA-192-FB, 2010 WL 11652142, at *2 (W.D. Tex. Mar. 12, 2010) (citing Pierce v. Dep't of U.S. Air Force, 512 F.3d 184, 186 (5th Cir. 2007)). Any action filed more than two years after the date on which the cause of action accrued is barred by the Privacy Act's statute of limitations. Id. § 552a(g)(5).
Sterling's Privacy Act claim is barred by the two-year limitations period. The report upon which Sterling basis his Privacy Act claim is dated October 21, 1983. Dkt. 31 at 17. Thus, any cause of action that he might have had under the Privacy Act thus expired in October 1985. Because Sterling's Privacy Act claim is time-barred, the proposed amendment fails to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Thus, his proposed amendment would be futile, a substantial reason to deny leave to amend. Stripling, 234 F.3d at 872-73. Accordingly, the court will deny his motion.
C. Request to appoint counsel
Sterling has also moved for the court to appoint counsel. Dkt. 31. The District Court, applying the factors in Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982), declined to appoint counsel in November 2023. Text order, November 11, 2023. The District Court denied Sterling's request to reconsider its decision. Text order, January 30, 2024. Sterling again moved to appoint counsel on February 5, 2024. Dkt. 28. The District Court denied that motion for the same reasons it gave in November 2023. Text order, February 9, 2024. The court now considers his fourth request to appoint counsel. Dkt. 31.
The factors are to be considered in determining whether exceptional circumstances are present: (1) the complexity of the case; (2) whether the indigent is capable of adequately presenting his case; (3) whether the indigent is capable of adequately investigating his case; and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination. Ulmer, 691 F.2d at 213.
On February 26, 2024, Sterling filed an advisory to the court (styled Notice to Judge), comprising a letter to the District Court. Dkt. 33. In the letter, Sterling expresses concern that denials of his requests for appointed counsel “raise troubling questions about potential bias and the true pursuit of ‘justice' in this case.” Id. at 1.
“A civil rights complainant has no right to the automatic appointment of counsel.” Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (Generally, there is no automatic right to counsel in § 1983 actions). A district court is not required to appoint counsel in the absence of “extraordinary circumstances.” Id. “[N]o comprehensive definition of exceptional circumstances is practical.” Ulmer, 691 F.2d at 213.
The District Court has twice applied the Ulmer factors to Sterling's case and concluded that appointment of counsel is unnecessary. Since the District Court's previous rulings, Sterling has continued to participate actively in the prosecution of his case and is engaged with court orders and Defendants' arguments. Accordingly, Sterling's actions after the District Court denied his earlier requests to appoint counsel do not demonstrate extraordinary circumstances that necessitate appointing counsel.
While the appointment of counsel might benefit Sterling or the court, appointment of counsel is not necessary for him to have his fair day in court. The court understands Sterling's claims and has read his pleadingly liberally. Moreover, having reviewed Defendants' Motion to Dismiss and the relevant case law, as well as having searched for the cases or cases like those Sterling cites, the undersigned does not believe that counsel could make arguments to defeat Defendants' motion that Sterling has not made himself. While Sterling makes hay out of his efforts and desire to overcome the Feres doctrine, just as significantly, the statutes of limitations on his claims ran decades ago. No attorney can turn back the clock. Accordingly, the court will deny Sterling's motion to appoint counsel.
IV. Order & Recommendations
For the reasons above, the Magistrate Court DENIES Sterling's Motion to Amend. (Dkt. 37). Sterling's Motion to Amend (Dkt. 30) is MOOT. The court also DENIES Sterling's Motion to Overcome Feres Doctrine and Appoint Counsel (Dkt. 31) (styled “Petition . . .).
For the reasons above, the undersigned RECOMMENDS the District Court GRANT Defendants' Motion to Dismiss (Dkt. 22) and DISMISS the claims with prejudice.
The referral to the undersigned should be canceled.
V. Objections
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm 'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within 14 days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).