United States District Court, D. South Carolina, Columbia Division
REPORT AND RECOMMENDATION
V. Hodges, United States Magistrate Judge
Maureen Johnson (“Plaintiff”) is a former federal
employee of the Moncrief Army Community Hospital
(“Moncrief”) at Fort Jackson, South Carolina. She
brings this pro se action against her superiors,
Colonel Eric Edwards, Colonel Clem Donald McDuffie, Carla
Laird, and Andrea V. Gardener (“Defendants”),
alleging they violated her Fifth Amendment rights to due
process. The United States appears on Defendants' behalf,
denying wrongdoing, and arguing that this court lacks subject
matter jurisdiction over Plaintiff's personnel claims
because the Civil Service Reform Act, 5 U.S.C. § 1201
et seq. (“CSRA”), provides the exclusive
remedy for federal employees in such a case.
matter comes before the court on Defendants' motion to
dismiss filed on September 14, 2017, pursuant to Fed.R.Civ.P.
12(b)(1) and 12(b)(6). [ECF No. 51]. The court issued an
order pursuant to Roseboro v. Garrison, 528 F.2d 309
(4th Cir. 1975), notifying Plaintiff of the dismissal
procedure and possible consequences if she failed to
adequately respond to the motion to dismiss. [ECF No. 52].
Plaintiff filed a response to the motion on September 19,
2017 [ECF No. 60]. The motion to dismiss having been fully
briefed, it is ripe for disposition.
pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.).
Because the motion to dismiss is dispositive, this report and
recommendation is entered for the district judge's
consideration. For the reasons that follow, the undersigned
recommends the district court grant Defendants' motion
and dismiss Plaintiffs complaint.
Factual and Procedural Background
amended complaint, Plaintiff states that she was a GS-5
Medical Support/Phlebotomy technician at Fort Jackson. [ECF
No. 15 at 3]. She alleges that she “sustained
debilitating traumatic injuries, at work, from a slip and
fall on a wet floor while reporting to work” on May 17,
2012. Id. at 2. She claims that defendants Gardener,
Laird, and McDuffie:
acting in collusion, did deny Plaintiff timely and adequate
medical treatment, failed to pay her properly, allowed
fraudulent documentation pertaining to her injuries to be
filed in her case, allowed her medical benefits to be
terminated due to personal incompetents or their
subordinates' and refused to make corrections to her
records when requested to do so in accordance with 5 U.S.C.
§ 552 (Freedom of Information Act).
Id. Plaintiff states that she medically retired on
December 21, 2015. She requests $20, 000, 000 in damages
against each defendant for pain and suffering, mental
anguish, emotional and mental distress, and punitive damages.
attaches to her Amended Complaint documents that appear to be
related to her settlement discussions with Moncrief before
the Merit Systems Protection Board (“MSPB”). [ECF
No. 15-1]. In her Amended Complaint, Plaintiff states that
Colonel Edwards offered her a $4, 000 settlement
“contrary to the procedural due process of the Fifth
Amendment of the United States Constitution, ”
depriving her of an evidentiary hearing. [ECF No. 15 at 4].
In one of her exhibits, Plaintiff provides a copy of her
apparent objection to the proposed settlement offer and her
demand for an evidentiary hearing “[t]o support her
claim in the amount of GS-5 Step 4 $34, 445.00 of February
14, 2013.” Liberally construed, that document reflects
that she did not receive a step-5 within grade increase to
$36, 205.00 because of a negative evaluation she received
that she claims was a result of her on-the-job injury. [ECF
No. 15-1 at 6-7].
their motion, Defendants note Plaintiff withdrew her MSPB
action on August 15, 2016 [ECF No. 51-4 at 2], with the
administrative judge dismissing her appeal on August 17,
2016, due to Plaintiff's “clear, unequivocal, and
decisive relinquishment of her right to appeal the
agency's action.” [ECF No. 51-5 at 2]. The
dismissal notified Plaintiff that she had 30 days to request
review by the full MSPB or 60 days to appeal to the Court of
Appeals for the Federal Circuit. Id. at 3-6.
Defendants state Plaintiff did not seek timely review by the
MSPB, nor did she file an appeal with the Federal Circuit.
[ECF No. 51-1 at 3].
Standard of Review
is appropriate under Fed.R.Civ.P. 12(b)(1) where the court
lacks subject-matter jurisdiction and under Fed.R.Civ.P.
12(b)(6) for failure to state a claim upon which relief can
be granted. A motion to dismiss under Rule 12(b)(1) examines
whether a complaint fails to state facts upon which
jurisdiction can be founded. It is the plaintiff's burden
to prove jurisdiction, and the court is to “regard the
pleadings' allegations as mere evidence on the issue, and
may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991). A motion to
dismiss under Rule 12(b)(6) examines the legal sufficiency of
the facts alleged on the face of the plaintiff's
complaint. Edwards v. City of Goldsboro, 178 F.3d
231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6)
motion, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
court is “not required to accept as true the legal
conclusions set forth in a plaintiff's complaint.”
Edwards, 178 F.3d at 244. Indeed, “[t]he
presence of a few conclusory legal terms does not insulate a
complaint from dismissal under Rule 12(b)(6) when the facts
alleged in the complaint cannot support the legal
conclusion.” Young v. City of Mount Ranier,
238 F.3d 567, 577 (4th Cir. 2001).
se complaints are held to a less stringent standard than
those drafted by attorneys. Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged
with liberally construing a complaint filed by a pro
se litigant to allow the development of a potentially
meritorious case. Erickson v. Pardus, 551 U.S. 89, 94
(2007). When a federal court is evaluating a pro
se complaint, the plaintiff's allegations are
assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74
(2d Cir. 1975). The mandated liberal construction
afforded to pro se pleadings means that if the court
can reasonably read the pleadings to state a valid claim on
which the plaintiff could prevail, it should do so.
Nevertheless, the requirement of liberal construction does
not mean that the court ...