United States District Court, E.D. Virginia, Richmond Division
WILLIAM J. RHOADES Plaintiff,
THOMAS WALKER, Defendant.
MEMORANDUM OPINION (MOTIONS TO QUASH SERVICE OF
PROCESS AND TO DISMISS)
E. Hudson United States District Judge.
matter arises from a cause of action filed by William Rhoades
(pro se "Plaintiff) (ECF No. 1) alleging that
Thomas Walker ("Defendant"), Chief of the
Regulatory Branch of the Norfolk District of the United
States Army Corps of Engineers (the "Corps"),
violated the Commerce Clause, and Plaintiffs rights under the
Due Process Clause of the Fifth Amendment. (Compl.
¶¶ 60, 65.) Plaintiff alleges that Defendant
violated his rights under the Due Process Clause by
"compromise[ing] the integrity" of the permit
approval process by willfully and wrongfully withholding
relevant information relating to the issuance of a permit on
September 10, 2014, that authorized the extension of a levee
on the property of Non-Party Thomas E. Pruitt
("Pruitt"). (Id. ¶¶ 5, 55.)
Plaintiff also alleges that Defendant violated the Commerce
Clause by failing to alert the Corps to a state-issued permit
for the levee that restricted the use of the waters until
there was a demonstrable need for public access.
(Id. ¶¶ 63-65.)
seeks declaratory judgment and asks this Court to find that
(1) authorization of the levee requires a signed and accepted
permit; (2) evidence of a signed or accepted permit has not
been demonstrated to this Court; (3) the state cannot
condition public access to the waters based on "a
demonstrated need for public access;" (4) Defendant
failed to furnish the relevant authorities with
"sufficient information to render a fair and unbiased
decision in approving the permit" authorizing extension
of the levee; and (5) the levee removal order issued in 1981
is currently enforceable. (Id. at 13-14.)
to the Complaint, the facts are as follows. In 1969, Richard
E. Watkins ("Watkins") built an 800' levee in
the waters of Curies Neck Creek in Henrico, Virginia.
(Id. ¶ 9.) He did so without a permit,
believing himself exempt because he owned the land upon which
the levee was built. (Id.) Shortly after receiving
notice from the District Engineer of the Corps to remove the
unauthorized levee in April of 1981, Watkins applied for an
"after-the-fact" permit with a Joint Permit
Application ("JPA"). (Id. ¶¶ 10,
13.) A JPA requires approval from the Corps and from the
Virginia Marine Resources Commission ("VMRC").
(Id. ¶ 14.) That after-the-fact permit was
granted in 1983. (Id. ¶ 20, Ex. B, E.)
2012, Pruitt, the current owner of the levee, submitted a JPA
for a proposed half-mile extension to the levee, citing the
April 1983 permit as previous authorization for the levee.
(Id. ¶¶ 34-35.) Plaintiff alleges that the
April 1983 permit is invalid and was not accepted by
Watkins-it "contains a mixture of typed and handwritten
entries not found in 'finalized' documents ready for
proffering to an intended permittee for signature, " it
does not have Watkins's signature, and it does not list
any conditions imposed on the permit. (Id.
¶¶ 21-24.) Despite these alleged defects, the Corps
issued a permit authorizing Pruitt's proposed extension
of the levee on September 10, 2014, and that extension has
since been completed. (See Id. ¶¶ 52, 55.)
VMRC also proffered a permit approving the extension of the
levee on October 28, 2013. (Id. ¶ 64.) This
VMRC permit included a condition that would restrict
"the creation of a public easement for portaging
un-motorized watercraft around or over the levee obstructing
navigation to Curies Neck Creek" until there was a
demonstrated need for public access. (Id.
District Engineer of the Corps decides whether to approve or
deny a permit. (Id. ¶¶ 42, 54, 56, 59;
Non-Party's Mem. Supp. Mot. Quash Serv. Proc. & Mot.
Dismiss ("Non-Party Mem.") at 12); see
also 33 U.S.C. § 403; 33 C.F.R. §§ 322.3,
322.5, 325.7, 325.8. With regard to the 2014 permit,
Plaintiff claims that the Defendant failed to disclose
critical information to the District Engineer, and that the
District Engineer relied at least in part on the inadequate
information provided to him by Defendant. (Compl.
¶¶ 42, 54, 56.) Plaintiff also asserts that the
1983 permit, which authorized the original 1969 levee, is not
valid, in part because the Corps did not maintain a signed
copy of the complete permit in its files. (Id.
¶¶ 20-24, 52.) Further, Plaintiff contends that the
2014 permit authorizing the levee extension is invalid,
because it was predicated on the 1983 permit. (Id.
before the Court is Pruitt's Motion to Quash Service of
Process and Motion to Dismiss (ECF No. 7), filed on June 29,
2016, and Defendant's Motion to Dismiss (ECF No. 11),
filed on August 8, 2016.
seeks to quash the service of process given to him and to
dismiss himself from the suit, asserting that he is not a
named defendant and was therefore improperly served.
(Non-Party Mem. 9-10); Fed.R.Civ.P. 4(a)(1)(B), (b).
this initial matter of quashing service of process, Plaintiff
does not oppose Pruitt's request, nor him being dismissed
entirely from this matter. "Non-Party's Counsel
begins his Argument by asserting that service of process upon
his client, Mr. Pruitt, be quashed and the case dismissed
against him. Plaintiff does not oppose dismissal of Mr.
Pruitt in his capacity as a Non-Party in this case."
(PL's Mem. Opp'n at 7, ECF No. 9.) Given the
agreement of the parties, and it appearing appropriate to do
so, the Court will GRANT Non-Party Pruitt's Motion to
quash service of process.
also moves to dismiss the complaint against Defendant,
pursuant to Federal Rules of Civil Procedure 12(a)(1),
(b)(1), (b)(4), (b)(5), and (b)(6), for lack of standing,
lack of a private right of action under Bivens or
the Rivers and Harbors Act of 1899, and for failure to state
a claim. Additionally, Defendant Thomas Walker moves to
dismiss the complaint, pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
reasons stated below, the Court will GRANT both Pruitt and
Defendant's Motions, and dismiss the Complaint.
Court assumes Plaintiffs well-pleaded allegations to be true
and views all facts in the light most favorable to him.
T.G. Slater & Son v. Donald P. & Patricia A.
Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citing
Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993)). This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Court acknowledges that pro se complaints are
afforded a liberal construction. Laber v. Harvey,
438 F.3d 404, 413 n.3 (4th Cir. 2006). The Court, however,
need not attempt "to discern the unexpressed intent of
the plaintiff." Id. Nor does the requirement of
liberal construction excuse a clear failure in the pleading
to allege a federally cognizable claim. See Wellerv.
Dep'tof Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
1990). As the Fourth Circuit explained in Beaudett v.
City of Hampton, "[t]hough [pro se]
litigants cannot, of course, be expected to frame legal
issues with the clarity and precision ideally evident in the
work of those trained in law, neither can district courts be
required to conjure up and decide issues never fairly
presented to them." 775 F.2d 1274, 1276 (4th Cir. 1985).
Article III of the Constitution, this Court's power is
limited to cases and controversies. As the United States
Supreme Court restated in Summers v. Earth Island
Institute, "the traditional role of Anglo-American
courts... is to redress or prevent actual or imminently
threatened injury to persons caused by private or official
violation of law. Except when necessary in the execution of
that function, courts have no charter to review and revise
legislative and executive action." 555 U.S. 488, 492
(2009) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-60 (1992)). The initial standing inquiry
"requires federal courts to satisfy themselves that the
plaintiff has alleged such a ...