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Scott Didonato v. United States of America

March 31, 2011


The opinion of the court was delivered by: McLaughlin, J.


The plaintiff, Scott DiDonato,*fn1 is a former United States Marine who has asserted claims against the United States under the Federal Tort Claims Act ("FTCA"). The plaintiff's claims sound in legal malpractice, and are predicated largely on events that occurred between 2003 and 2004, after the plaintiff was discharged from the Marines under "other than honorable" conditions. The plaintiff's claims arise out of his attempts to have his discharge status upgraded, or alternatively to re-enlist in the Marine Corps.

The defendant has filed a motion to dismiss on the basis of timeliness, intra-military immunity, and the statutory text of 28 U.S.C. § 2680(h), which renders certain claims non-actionable under the FTCA. After a full round of briefing, the Court held oral argument on March 30, 2011. For the following reasons, the Court will now grant the motion to dismiss.

I. Facts as Alleged in the Complaint In evaluating a motion to dismiss under Rule 12(b)(6),

a court must accept all well-pleaded facts as true, and must construe the complaint in the light most favorable to the plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).*fn2

The plaintiff, Scott DiDonato, joined the United States Marine Corps and was shipped to boot camp for basic training in October 1999.*fn3 At boot camp, the plaintiff's drill instructors required the plaintiff to participate in "waterbowling," a ritual where recruits were made to drink several canteens of water. During one such incident, the plaintiff felt a rip in his stomach, and was subsequently diagnosed with a serious hernia.

Following surgery,*fn4 the plaintiff was placed on "no duty" and then "light duty" status to aid his recovery. Compl. ¶¶ 32, 34-35, 38-39.

After surgery, the plaintiff was assigned to the Basic Marine Platoon, where his new drill instructor forced the plaintiff to exceed the limits of his "no duty" status, resulting in extreme pain. The plaintiff reported his drill instructor's actions to his command and enlisted the help of his Congressman, Robert Andrews. The plaintiff was granted convalescent leave and returned home to New Jersey. However, out of concern for his safety, the plaintiff did not return to duty at the expiration of his convalescent leave. On March 16, 2000, Congressman Andrews informed the plaintiff that he must return to duty, but that the plaintiff's complaints would be investigated. Compl. ¶¶ 42-48.

Following his return, the plaintiff was punished for his unauthorized absence, but was nonetheless promoted to Camp Lejeune with his peers on May 15, 2000. At Camp Lejeune, the plaintiff repeatedly asked about the status of the investigation into his maltreatment, but received no response and was ridiculed. The plaintiff subsequently graduated on September 1, 2000, and reported to duty at Quantico, Virginia. Compl. ¶¶ 49-52, 54-59.

At Quantico, the plaintiff concluded that the indifference and abuse he had suffered would continue, and decided to return home to New Jersey and again seek the help of Congressman Andrews. The Congressman contacted the Commandant of the Marine Corps and requested an investigation into the plaintiff's abuse. The Congressman also informed the plaintiff that he must return to Quantico before the Marine Corps would take any additional action on his behalf. Compl. ¶¶ 61-62, 64-66, 68.

On November 12, 2000, the plaintiff voluntarily returned to Quantico. The plaintiff's commanding officer, Colonel Applegate, assigned the plaintiff to a "casual platoon" consisting of long-term deserters, even though the plaintiff had been gone only a short while. Although the plaintiff wanted to remain a Marine, Colonel Applegate arbitrarily decided that the plaintiff could not remain in the Marine Corps, based on Colonel Applegate's erroneous belief that the plaintiff could not be trained for another specialty. Colonel Applegate also ordered the plaintiff to take an "other than honorable" discharge rather than stand for trial. Faced with no choice, the plaintiff received an "other than honorable" discharge on January 9, 2001. Compl. ¶¶ 70, 75-76, 81, 90-95, 99.

In 2003, the plaintiff contacted Colonel Applegate and sought assistance in having his discharge status upgraded, or alternatively in re-enlisting in the Marine Corps. Colonel Applegate in turn sought the help of Captain Kasey Shidell, a lawyer in the Naval Judge Advocate General's Corps ("JAG"), and Darhrie Hayman, an individual employed at Manpower Management Evaluation Review ("MMER"). Compl. ¶ 110-12.

All three of these individuals provided ineffective assistance to the plaintiff. Colonel Applegate and Captain Shidell's assistance posed a conflict of interest, because both men were employed by the United States government when they represented the plaintiff. Neither Colonel Applegate nor Captain Shidell ever advised the plaintiff to consult an outside lawyer. Compl. ¶¶ 115, 160.

Colonel Applegate and Captain Shidell also provided the plaintiff with erroneous legal advice. Both individuals informed the plaintiff that he should petition the Board for Correction of Naval Records ("BCNR") to upgrade his re-enlistment code if he wanted to re-enlist in the Marines. This was flawed advice, however, because the BCNR will not upgrade a re-enlistment code if a petitioner has an "other than honorable" discharge. The proper channel would have been for the plaintiff to petition the Naval Discharge Review Board ("NDRB") to have his discharge upgraded. Only ...

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