United States District Court, D. Maryland
K. Bredar Chief Judge.
Jerome Walker ("Plaintiff)j proceeding pro se, sued the
U.S. Army Department Defense Medical Command
("Defendant"). Defendant filed a motion to dismiss
the complaint. (Mot. Dismiss, ECFNo. 8.) Plaintiff opposed
dismissal. (Opp. Mot. Dismiss, ECFNo. 10.) No. hearing is
required. See Local Rule 105.6 (D. Md. 2016). For
the reasons set forth below, the Court will grant
Defendant's motion to dismiss.
motion to dismiss stage, the Court accepts the factual
allegations of the complaint as true, see, e.g., Ibarra
v. United States, 120 F.3d 472, 474 (4th Cir. 1997), but
"statements of bare legal conclusions 'are not
entitled to the assumption of truth."' Aziz v.
Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011).
alleges that he served in the U.S. Army from 1996 through
1999 and returned to the army in 2006. (Compl. at 1, ECF No.
1.) In 2013, Plaintiff discovered his "Hebrew Israelite
Heritage" and "reverted to the God of his
ancestors." (Id. at 4.) After discovering his
indigenous heritage, Plaintiff requested a religious
exception. Plaintiff specifically requested an exception to
Policy IAW AR 670-1 so that he could grow his facial hair no
more than a quarter of an inch. (Compl. Ex. I at 1, ECF No.
1-9.) In the request, Plaintiff explained, "I have
traditional practices that are required of me to maintain my
status as a faithful member of my ancient indigenous family
treaty." (Id.) Plaintiff requested the
exception in December 2015, April 2016, and June 2016, and
each request was denied. (Compl. Ex. C at 1, ECF No. 1-3.) In
2017, Plaintiff sought and attained "conscientious
objector" status, and the army honorably discharged him.
(Opp. Mot, Dismiss, Ex. 1 at 1, ECF No. 10-1.)
asserts that Defendant discriminated against him
"because [he] claimed his Hebrew Israelite
Heritage." (Compl. at 4.) Plaintiff alleges that he
requested the religious exception "under duress"
and, subsequently, conscientious objector status
"because of fear of further abuse." (Id.
at 1, 6.) In short, Plaintiff alleges that the abuses he
suffered in the form of racial and religious discrimination
forced him out of the army. (Id. at 1-2.) And, he
suffered the following damages: "loss of rank, loss of
wages, property, homeless[ness], abuses, psychological and
mental trauma." (Id. at 3.)
moves to dismiss, arguing that Plaintiff fails to state a
plausible claim for relief, see Fed. R. Civ. P.
12(b)(6), and that the Court lacks subject matter
jurisdiction because Plaintiffs claims are nonetheless barred
by sovereign immunity, see Fed. R. Civ. P. 12(b)(1).
(Mot. Dismiss at 1.) A motion to dismiss under Rule 12(b)(6)
tests the sufficiency of a plaintiffs complaint. Presley
v. Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A
complaint must satisfy Rule 8(a), which requires a
"short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To
survive a motion to dismiss, the plaintiff must allege
sufficient facts to "state a claim to relief that is
plausible on its face." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A motion to dismiss
under Rule 12(b)(1) raises the question of whether the court
has the authority to hear the case. Davis v. Thompson,
367 F.Supp.2d 792, 799 (D. Md. 2005). Where defendants
raise the defense of sovereign immunity, they make a facial
challenge to the complaint. See Weiss v. Price, Civ.
No. ELH-17-1127, 2018 WL 1156770, at *2 (D. Md. March 5,
2018). In a facial challenge, "the facts alleged in the
complaint are taken as true, and the motion must be denied if
the complaint alleges sufficient facts to invoke subject
matter jurisdiction." Kerns v. United States,
585 F.3d 187, 192 (4th Cir. 2009). The plaintiff bears the
burden of establishing subject matter jurisdiction. Adams
v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
Court liberally construes complaints filed by pro se
plaintiffs. United States v. Wilson, 699 F.3d 789,
797 (4th Cir. 2012). Pro se lawsuits "represent the work
of an untutored hand requiring special judicial
solicitude." Beaudett v. Hampton, 775 F.2d
1274, 1277 (4th Cir. 1985). However, pro se lawsuits
"do not transform the court into an advocate."
Welter v. Dep 't of Soc. Servs. for Bait, 901
F.2d 387, 391 (4th Cir. 1990). Consequently, even with pro se
plaintiffs, courts may only address those questions
"which are squarely presented." Id.,
Because Plaintiff proceeds pro se in this case, the Court
carefully construes the allegations of the complaint for all
seems to argue primarily that Defendant discriminated against
him because of his race and religion. To the extent that
Plaintiff attempts a discrimination claim under Title VII of
the Civil Rights Act of 1964, it is barred by sovereign
immunity. "As a sovereign, the United States is immune
from all suits against it absent an express waiver of its
immunity." Pornomo v. United States, 814 F.3d
681, 687 (4th Cir. 2016). Title VII does outlaw employment
discrimination and waives sovereign immunity with respect to
claims for "personnel actions affecting employees ... in
military departments .. .." 42 U.S.C. §
2000e-16(a). But, because the Fourth Circuit has
concluded-and every other federal appellate court faced with
this question has agreed-that "military department"
employees do not include members of the armed forces, members
of the armed forces "do not fall within the scope of the
waiver of sovereign immunity." Middlebrooks v.
Leavitt, 525 F.3d 341, 344 (4th Cir. 2008); see also
Randall v. United States, 95 F.3d 339, 343 (4th Cir.
1996) (affirming dismissal of plaintiff service member's
Title VII claim for lack of subject matter jurisdiction).
Thus, even if Plaintiff could state a plausible claim under
Title VII, such a claim is barred by sovereign immunity.
Plaintiffs pleadings, he references two federal criminal
provisions: 18 U.S.C. §§ 241, 242. (Compl. Ex. G at
8, ECF No. 1-7; Opp. Mot. Dismiss at 1.) "[I]t is well
established that a private actor may not bring a civil claim
pursuant to a criminal statute unless that statute provides a
private cause of action." Moore v. Bd. of Educ. of
Bait. Cnty., Civ. No. RDB-16-3439, 2017 WL 3172820, at
*3 n.9 (D. Md. July 25, 2017); see Alexander v.
Hendrix, Civ. No. RDB-14-2666, 2015 WL 3464145, at *3
(D. Md. May 29, 2015) (holding that § 241 does not
provide a private cause of action); Olekanma v.
Wolfe, Civ. No. DKC-15-0984, 2017 WL 784121, at *4 (D.
Md. Mar. 1, 2017) (holding that § 242 does not provide a
private cause of action). As a private citizen, Plaintiff
cannot state a plausible claim under either criminal statute.
also references 42 U.S.C. § 1983, (Ex. C at 1), but a
§ 1983 claim cannot be made against a federal entity.
"While a claim against a state agent may be pursued
under [§] 1983, for a federal defendant the proper claim
is a Bivens claim rather than a [§] 1983
claim." Johnson v. U.S. Dep't of Justice,
Civ. No. PJM-14-4008, 2016 WL 4593467, at *5 (D. Md. Sept. 2,
2016); see Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). Even if we
construed Plaintiffs reference to § 1983 as a
Bivens claim, it would fail because a plaintiff may
only pursue a Bivens action against federal officers
individually, not against federal agencies and departments,
like the U.S. Army. Johnson, 2016 WL 4593467, at *5
(dismissing Bivens actions against the U.S.
Department of Justice and Federal Bureau of Investigation).
Further, members of the armed forces cannot pursue
Bivens actions against their superior officers.
Chappeil v. Wallace, 462 U.S. 296, 305 (1993)
(holding "enlisted military personnel may not maintain a
suit to recover damages from a superior officer for alleged
has not carried his burden of alleging sufficient facts to
state a claim for relief that is plausible on its face, nor
has he established this Court's subject matter
jurisdiction. Plaintiff has not provided a cause of action
for his claims, and the Court discerns none. Instead,
Plaintiff has offered mostly conclusory statements that
Defendant abused him and discriminated against him, and such
conclusions are not sufficient to survive a motion to