United States District Court, M.D. Louisiana
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Before the Court is Plaintiff's Complaint, filed on July 11, 2014. (R. Doc. 1 has been granted IFP status and is proceeding without the assistance of counsel. The Court has reviewed Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and RECOMMENDS that it be DISMISSED with prejudice as it fails to state a claim upon which relief can be granted.
Plaintiff, Marcus Davis, filed this Complaint against the United States Army on July 11, -. Plaintiff alleges that the U.S. Army allowed him "to be assaulted, injured, defamed [his] character, jeopardized [his] life, ruined [his] potential career in the Army, imprisoned, reduced to lowest rank, and kicked [him] out of the Army for reporting threats and abuse." (R. Doc. 1 at 2). Plaintiff additionally claims that his 1991 discharge from the Army following conviction by a special court martial in 1990 was done in violation of his constitutional rights. (R. Doc. 1 at 5). As relief, Plaintiff asks the Court to "[e]nforce [his] constitutional rights" and make the Army pay "monetary damages, " seemingly in the form of back pay, for the 25 years since the "1990 unconstitutional court martial, " which resulted in Plaintiff being discharged from the Army in 1991. (R. Doc. 1 at 2).
In an earlier Order, the Court explained that Plaintiff's causes of action appeared to be prescribed, based on the dates alleged in the original Complaint. (R. Doc. 6 Fifth Circuit precedent,  the Court gave Plaintiff an opportunity to amend the Complaint to provide "further information and dates of the conduct of which he complains." (R. Doc. 6 at 2). Plaintiff filed an amended Complaint (R. Doc. 7) and supporting documents (R. Doc. 7-1). Plaintiff's amended Complaint confirms that the conduct originally complained of last occurred on July 29, 1991, when he was officially discharged from the Army. (R. Doc. 7-1 at 4-5).
II. APPLICABLE LAW
District courts must construe the IFP complaints of pro se plaintiffs liberally. Nonetheless, even the most liberally construed IFP complaint can be dismissed at any time, regardless of service or the filing of an answer, if a court determines the case: (i) is frivolous or malicious; (ii) fails to state a claim; or (iii) seeks monetary relief against an immune defendant. 28 U.S.C. § 1915(e)(2)(B). To determine whether the complaint fails to state a claim, courts apply the same standard for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6) (allowing for dismissal if the complaint fails "to state a claim upon which relief can be granted"); see also Hart v. Hairston, 343 F.3d 762, 763-64 (5th Cir. 2003) (dismissal of IFP complaint for failure to state a claim employs Rule 12(b)(6) standard). Rule 12(b)(6) requires a court to "accept all well-pleaded facts as true" in a "light most favorable to the plaintiff." Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996 only becomes appropriate "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).
Here, Plaintiff's claims against the United States Army are not cognizable. To the extent Plaintiff is seeking monetary damages from the Army for constitutional violations, those claims must fail for lack of jurisdiction. Suits for money damages against the United States, including its agencies and instrumentalities, cannot be maintained unless there is an "unequivocally expressed" waiver of sovereign immunity. U.S. v. Testan, 424 U.S. 392, 399-400 (1976 United States has not waived its sovereign immunity for suits seeking monetary relief for constitutional violations. See Oladipupo v. Austin, 104 F.Supp.2d 623, 625 (W.D. La. 2000). Therefore, the Court does not have jurisdiction to hear this claim.
Second, to the extent Plaintiff wants to pursue a Bivens action against individual officers for constitutional violations, or otherwise seeks backpay from the Army in connection with his allegedly illegal discharge, those claims have prescribed. The applicable state statute of limitations for a Bivens action is one year from the time the action accrues. See Dass v. Caplinger, 170 F.3d 183, at1 (5th Cir. 1999) ("[F]ederal courts look to state law to determine the applicable limitations or prescriptive period for a Bivens claim. The applicable prescriptive period in Louisiana is one year."). Claims for back pay against the army are available under the Tucker Act, 28 U.S.C. § 1346(a)(2), and are subject to a 6 year statute of limitations from the time the action accrues. See Brewster v. Sec'y of the Army, 489 F.Supp. 85, 88 (E.D.N.Y. 1980); 28 U.S.C. 2401(a) ("every civil action against the United States shall be barred unless the complaint is filed within six years after the right of action accrues").
Plaintiff's causes of action accrued on July 29, 1991, the date his discharge became official. See Geyen v. Marsh, 775 F.2d 1303, 1308 (5th Cir. 1985) (serviceman's cause of action against army accrued on date of his discharge); Walters v. Sec'y of Def., 725 F.2d 107, 114 (D.C. Cir. 1983) ("[T]he strong weight of authority is that the § 2401(a) limitations period begins to run when the service member's administrative discharge is final."); Long v. U.S. Dep't of Def., 616 F.Supp. 1280, 1283-84 (E.D.N.Y. 1985) (serviceman's complaint alleging constitutional violations associated with discharge accrued at time of discharge).
Considering the applicable 1 and 6 year limitations periods, his claims have all prescribed. And so, Plaintiff has failed to state any claim upon which relief can be granted.
For the reasons given above, the Court RECOMMENDS that Plaintiff's Complaint (R. Doc. 1) be DISMISSED with prejudice under 28 U.S.C. § 1915 as it fails to ...