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Walsh v. George

United States District Court, M.D. Pennsylvania

January 29, 2015

RORY M. WALSH, Plaintiff.
BRIAN J. GEORGE, et al., Defendants.


SYLVIA H. RAMBO, District Judge.

Plaintiff Rory M. Walsh ("Walsh"), proceeding in this matter pro se, [1] brings claims under the Constitution and several federal statutes alleging, inter alia, that the United States owes him past monies due for medical disability payments, and that the individual defendants interfered with his efforts to amend his military record, publicly slandered him, intercepted his mail, and harassed him and his family. The defendants[2] have moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim. For the following reasons, the motion will be granted in its entirety.

I. Background

A. Factual Background[3]

Walsh is a retired United States Marine Corp captain who served during the Peacetime and Gulf War Era and was repeatedly recognized and decorated for his military service. (Doc. 45-1, p. 105 of 178; see Doc. 1, ¶ 5.) Walsh retired in 1996 (Doc. 45-1, p. 43 of 178), and is allegedly disabled due to his significant service-related injuries (Doc. 1, ¶ 21).

In his complaint, Walsh alleges that Jones has adversely impacted his repeated attempts to correct his military record to reflect certain awards that he received during his service. ( Id. at ¶ 6.) Walsh claims that Jones has been harassing and "striking at" him for more than twenty years because Walsh witnessed Jones engage in misconduct while serving as a commanding officer of a marine expeditionary unit in 1986 and 1990. ( Id. at ¶¶ 6, 25.) Most recently, Jones interfered with a December 24, 2010 Application for Correction of Military Record that Walsh filed with the BCNR seeking the missing awards.[4] ( Id. at ¶ 9.) In response to the BCNR's inquiry regarding his entitlement to the awards ( see Doc. 45-1, p. 5 of 178; Doc. 1, 9), Buttram, Newman, and Amos, acting at the direction of Jones, issued two falsified letters omitting Walsh's entitlement to the Kuwait Liberation Medal and the 6th Award of the Sea Service Deployment Ribbon, [5] and subsequently refused to correct their omissions notwithstanding Walsh's clear entitlement to the awards (Doc. 1, ¶¶ 10, 16). As a result of these false letters, the BCNR denied Walsh's petition on April 23, 2013. (Doc. 1, ¶ 11; see Doc. 45-1, pp. 108-110 of 178.)

Additionally, in the process of denying the petition, George and Pfeiffer slandered Walsh to Marine Corps Base Quantico, denied Walsh's Freedom of Information Act ("FOIA") requests, [6] and unlawfully refused Walsh's request to appear before the Naval Discharge Review Board ("NDRB"). (Doc. 1, ¶¶ 12-13.) Further, when Walsh attempted to check on the status of his pending petition, Pfeiffer directed armed security guards to deny Walsh's access to the Navy Annex in Arlington, Virginia. ( Id. at ¶ 12.)

In addition, George and Pfeiffer falsely stated in their April 22, 2013 decision denying his petition that the Navy " medically retired [Walsh] once his incurable disease arose." ( Id. at ¶ 11 (emphasis added).) Walsh asserts that this erroneous statement entitles him to an award of missing disability payments in the amount of $693, 264.00, and to an advance to the rank he would have held but for his disability. ( Id. at ¶ 11.)

Walsh further claims he has been continually harassed by Jones for the last twenty years. On May 17, 2014, using the FBI and illegal surveillance, Jones "stalked and struck" at Walsh and his family at a Red Robin restaurant in Harrisburg, Pennsylvania, and, later the same day, at the parking lot of a Best Buy store. ( Id. at ¶ 25.) "[R]ecognizing Jones['s] presence and that he was there to create an incident, " Walsh "dodged both, made his purchase[, ] and left." ( Id. ) Over the past three years, Jones and Amos have also allegedly intercepted correspondence regarding Walsh from the Secretary of the Navy to Congressman Scott Perry for the purpose of concealing their crimes and to convey threats to Walsh and his family. ( Id. at ¶ 23.)

B. Procedural Background

Walsh filed the instant complaint on August 1, 2014. (Doc. 1.) In the complaint, Walsh asserts jurisdiction under 42 U.S.C. § 1983 ("Section 1983); the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134; and the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-706. (Doc. 1, ¶ 3.) In Count I, Walsh sets forth claims for "false official statements, " defamation, and "false light" against Newman, Buttram, Amos, and Jones, pursuant to 18 U.S.C. § 1001 and Section 1983 related to the falsified letters. ( Id. at ¶¶ 16-17.) In Count II, Walsh asserts a claim against Newman, Buttram, Amos, and Jones for denying his petition to correct his military record, which he alleges is in violation of 10 U.S.C. § 1552 and his Fourteenth Amendment right to due process, and a claim against George and Peiffer for denying him access to appear before the NDRB, which he alleges is in violation of 10 U.S.C. § 1553, SECNAVINST 5420.174D, and his due process rights. ( Id. at ¶¶ 18-20.) In Count III, Walsh sets forth an ADA claim against George and Peiffer related to his being denied access to appear before the NDRB. ( Id. at ¶ 21.) In Count IV, Walsh brings a claim against the Navy for failure to pay missing disability payments, which he alleges is in violation of federal law and Department of Defense Directives. ( Id. at ¶ 22.) In Count V, Walsh asserts claims against Jones and Amos for interference with congressional correspondence related to their alleged interception of the Secretary of the Navy's mail, which he alleges is in violation of Section 1983. ( Id. at ¶¶ 23-24.) Finally, in Count VI, Walsh asserts a claim against Jones for interstate stalking, which he alleges is in violation of "criminal laws" and Section 1983. ( Id. at ¶ 25.)

On November 10, 2014, the defendants moved to dismiss all of Walsh's claims pursuant to Rule 12(b)(6). (Doc. 38.) Walsh opposes. (Doc. 50.)

II. Legal Standard

A motion to dismiss for failure to state a claim, filed pursuant to Federal Rule of Procedure 12(b)(6), tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In reviewing the motion, a court "may consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (2004). The motion will be properly granted when, taking all well-pleaded factual allegations and inferences drawn ...

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