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Rhoades v. Kinsman

United States District Court, E.D. Virginia, Richmond Division

December 19, 2018

WILLIAM RHOADES, Plaintiff,
v.
COL. PATRICK KINSMAN, USACE, Defendant.

          MEMORANDUM OPINION (GRANTING DEFENDANT'S MOTION TO DISMISS)

          Henry E. Hudson, Senior United States District Judge

         This matter is before the Court on Defendant's Motion to Dismiss (the "Motion"), filed on October 12, 2018 (ECF No. 6). The dispute in this case centers on a levee that was originally constructed in 1969, without a permit, where Curies Creek meets the James River in Henrico County, Virginia. The levee was granted a permit, after the fact, in 1983 by the U.S. Army Corps of Engineers (the "Corps"). Later, in 2014, the Corps approved another permit that authorized an extension to the levee.

         In his Complaint, William Rhoades (pro se "Plaintiff) contends that the 1983 and 2014 permits are invalid. In addition, he contends the levee obstructs navigable access between Curies Creek and the James River, allegedly restricting his liberty interest and public right of access to Curies Creek. By way of remedy, Plaintiff asks this Court to enter numerous declaratory judgments. However, it is apparent from the face of the Complaint that Plaintiffs action is barred by the applicable statute of limitations, and, in addition, because Plaintiff lacks Article III standing. Consequently, the Motion to Dismiss will be granted.

         I. BACKGROUND

         Curies Creek runs adjacent to Curies Neck Farm, near Route 5 in Henrico County, Virginia, where it converges with the James River. (Compl. Ex. A. 4, ECF No. 1-2.) A levee was built across Curies Creek in 1969.[1] (Compl. ¶ 35, ECF No. 1.) In May 1981, the Corps notified Richard Watkins, the previous owner of Curies Neck Farm, that the levee was constructed without a permit, and it was therefore "in violation of Section 10 of the River and Harbor Act of 1899." (Compl. Ex. G., ECF No. 1-8.)

         In June 1981, Watkins applied for an after-the-fact permit for the levee. (Compl. ¶ 39.) In February 1983, Watkins received a letter ("February 1983 Letter") from the Corps indicating that his request would be approved, and Watkins was instructed to sign an enclosed after-the-fact permit that accompanied the letter. (Compl. Ex. A.) A "Record Permit," aptly labeled because it is maintained in the Corps's records, indicates that the after-the-fact permit took effect on April 1, 1983 and was signed by another official on the District Engineer's behalf. (Compl. Ex. B., ECF No. 1-3.)

         Years later, in 2012, Thomas Pruitt, the current owner of Curies Neck Farm, submitted a permit application to the Corps seeking approval for a one-half mile extension to the levee. (Compl. 2, ¶ 18.) On September 10, 2014, the Corps granted the permit for the extension-the construction of which is now complete. (Compl. ¶¶ 32, 44.)

         On August 13, 2018, Plaintiff filed this action against Colonel Patrick Kinsman, ("Defendant") in his official capacity as Commander of the Norfolk District of the U.S. Army Corps of Engineers.[2] (Compl. 2.) Plaintiff alleges the "[Corps] wrongfully authorized the levee's extension by relying on two foundational documents," the February 1983 Letter and the Record Permit that the Corps maintains in its records. (Id. ¶ 32.) Plaintiff contends that neither document conforms with the Corps's regulations because the Corps has not produced a permit with original signatures. (Id. ¶ 33.) In addition, Plaintiff claims that these authorizations "failed to ensure an easement for public access" that he seeks to have recognized. (Id. ¶ 42.)

         In his present action, Plaintiff presents three claims alleging that Defendant violated the Commerce Clause of the U.S. Constitution, Plaintiffs Procedural Due Process Rights, and Plaintiffs Substantive Due Process rights under the Fourteenth Amendment.[3] (Id. ¶¶ 51-71). As a remedy, Plaintiff asks the Court to enter declaratory judgments that (1) recognize a public right of access to Curies Creek; (2) find there is insufficient evidence of a valid Corps permit for the levee across Curies Creek; (3) find the levee is not lawfully authorized and deprives Plaintiff of his rights of access to the Creek; (4) find that, even if the levee becomes authorized, Plaintiff cannot be deprived of his right of access absent a legitimate government interest; and (5) that no such government interest exists. (Id. at 15.)

         II. STANDARD OF REVIEW

         A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) tests a complaint's legal sufficiency. Republican Party of N.C. v. Martin, 980 F.2d 943, 951 (4th Cir. 1992). While "detailed factual allegations" are not required, a complaint must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Thus, to survive a 12(b)(6) challenge, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level," id, to a level that is "plausible on its face," id. at 570. In reviewing a 12(b)(6) motion, the Court assumes well-pleaded allegations to be true and views a complaint's facts in the light most favorable to the plaintiff. T.G. Slater & Son v. Donald P. & Patricia Brennan, LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). However, legal conclusions are not entitled to the same deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         On 12(b)(6) review, the Court "generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiffs claim is time-barred," however, the Court may consider an affirmative defense when there are sufficient facts alleged in the complaint to make a ruling. Goodman v. PraxAir, Inc., 494 F.3d 458, 464 (4th Cir. 2007). "This principle only applies, however, if all facts necessary to the affirmative defense 'clearly appear [] on the face of the complaint?" Id. (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993); also citing Desser v. Woods, 296 A.2d 586, 591 (Md. 1972)).

         A litigant may also challenge the court's subject-matter jurisdiction via a Rule 12(b)(1) motion at any point in a case because jurisdiction invokes the court's power to resolve a legal dispute. See Fed. R. Civ. P. 12(b)(1); Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (stating subject-matter jurisdiction can never be forfeited or waived). Similarly, "[i]f the plaintiff does not have [Article III] standing, this Court... can go no further in evaluating this case, and it must be dismissed." Ryals v. Strategic Screening Sols., Inc., 117 F.Supp.3d 746, 749 (E.D. Va. 2015) (citing Arbaugh, 546 U.S. at 514); see also White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005) (standing arguments are properly brought under a Rule 12(b)(1) motion).

         A court must review pro se complaints with a liberal construction. Laber v. Harvey,438 F.3d 404, 413 n.3 (4th Cir. 2006). However, this requirement cannot excuse a clear failure in the pleadings to allege a federally cognizable claim. See Weller v. Dep't of 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, ...


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