United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING DEFENDANT'S MOTION
E. Hudson, Senior United States District Judge
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.
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
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. (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.)
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.)
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.)
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. (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.)
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. (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.)
STANDARD OF REVIEW
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).
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)).
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
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, ...