Jarrell v. Dept. of the Army

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

STEPHEN PAUL JARRELL,

Plaintiff, Case No. 3:20-cv-194

vs.

ARMY REVIEW District Judge Walter H. Rice

BOARDS AGENCY, et al., Magistrate Judge Michael J. Newman

Defendants.

______________________________________________________________________________

REPORT AND RECOMMENDATION1THAT: (1) DEFENDANT’S MOTION TO DISMISS

(DOC. 6)BE GRANTED;(2) THIS CASE BE TERMINATED ON THE DOCKET; AND (3)

PLAINTIFF BE DENIED IN FORMA PAUPERISSTATUS ON APPEAL

______________________________________________________________________________

This civilcase is before the Court on the complaint filed by pro sePlaintiff Stephen P. Jarrell.

Doc. 1. Jarrell alleges violations of the Privacy Act, 5 U.S.C. § 552a,against four named Defendants:

(1)the Army Review Boards Agency(“ARBA”); (2) the Department of the Army; (3)the United States

Attorney for the Southern District of Ohio; and (4) the United States Attorney General. See id. at

PageID 2-3. Specifically, Jarrell alleges that ARBA failed to maintain and provide him certain

documents in his personnel record and improperly included his brother’s physical discharge

examination documents in his personnel record -- resulting in an adverse administrative decision

decades ago, in 1990. See id.3-8.

I.

Now pending before the Court is Defendants’ motion to dismiss (doc. 6), Jarrell’s

memorandum in opposition (doc. 7), and Defendants’ reply (doc. 11). In considering the motion, the

Court has accepted pro se Plaintiff’s claims as true and liberally construed them in his favor. See

Erickson v. Pardus, 551 U.S. 89, 94(2007).

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and

Initially, the record reveals that this matter, i.e., Jarrell’s requests for records relating to his

military service and discharge; and issues pertaining to his personnel record and denial of benefits,

were litigated between the parties or could have been litigated.2 See e.g., Jarrell v. U.S. Army, No.

3:94-CV-275, ECF No.10 (S.D. Ohio Oct. 11, 1994), aff’d, Jarrell v. U.S. Army, 86 F.3d 1155, 1996

WL 287738 (6th Cir. May 29, 1996) (dismissing Jarrell’s claim of records mismanagement with

prejudice); Jarrell v. United States, No. 3:94-CV-463, ECF No. 4 (S.D. Ohio Feb. 14, 1995), report

and recommendation adopted, No. 3:94-CV-463, ECF No. 8 (S.D. Ohio Mar. 20, 1995) (determining

Jarrell’salteration of records claimswere barred by collateral estoppel);Jarrell v. Nat’l Pers. Records

Ctr., No. 3:11-CV-434, 2013 WL 5346483 (S.D. Ohio Sept. 23, 2013),report and recommendation

adopted,No. 3:11-CV-434, 2013 WL 5773930 (S.D. Ohio Oct. 24, 2013) (granting Defendants’

motion for summary judgement because Jarrellknew, or had reason to know, about any allegedPrivacy

Act violations by 1994); Jarrell v. FBI, No. 3:13-CV-343, 2013 WL 6835284 (S.D. Ohio Dec. 26,

2013), report and recommendation adopted, No. 3:13-CV-343, 2014 WL 198497 (S.D. Ohio Jan. 15,

2014) (dismissing Jarrell’s claims against, inter alia, the Army under the doctrine of res judicata,

collateral estoppel, and the statute of limitations); Jarrell v. Shulkin, No. 3:16-CV-95, 2018 WL

1901681 (S.D. Ohio Apr. 20, 2018)(grantingDefendant’s motion forsummary judgement on Jarrell’s

Privacy Act claims). Accordingly, this case is barred by res judicata and/or collateral estoppel. See

Knox v. Hurley, No. 2:07-CV-0155, 2007 WL 3399239, at *1 (S.D. Ohio Nov. 9, 2007) (stating that

the doctrine of resjudicata “prevents a litigant from raising a new claim in a subsequent action if it

arises out of the same facts as a prior case and the claim could have been, but was not, raised in that

2 “Federalcourtsmay take judicial notice of proceedings in othercourtsofrecord.” Rodic v.

Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980) (quotingGranader v. PublicBank, 417

F.2d 75, 82-83 (6th Cir. 1969)). Further, it is well-settled that thisCourtmay take judicial notice of its

ownrecords.SeeSaylor v. United States, 315 F.3d 664, 667-68 (6th Cir. 2003) (citation omitted);see also

Saag v. Warden, Chillicothe Corr. Inst., No. 1:19-CV-548, 2019 WL 4118795, at *1 n. 1 (S.D. Ohio Aug.

29, 2019),report and recommendation adopted,No. 1:19-CV-548, 2020 WL 815673 (S.D. Ohio Feb. 19,

2020).

prior case” and collateralestoppel prevents “a party [from attempting] to litigate again claims [that]

were actually decided against him[or her]in a prior case”).

Even assuming, arguendo, that Jarrell’s claims are not barred by res judicataand/or collateral

estoppel, the record reveals that Jarrell’s claims are time barred by the Privacy Act’s two-year statute

of limitations. 5 U.S.C. § 552a(g)(5); see also Lockett v. Potter,259 F. App’x 784, 786-87 (6th Cir.

2008) (finding thestatute of limitations for a Privacy Actclaim“begins to run when the plaintiff knows

or has reason to know of the alleged violation” by a federal agency). This Court has previously

established that Jarrell “knew, or had reason to know, about the Privacy[]Act violations” with regard

to alleged discrepancies in his personnel record since at least 1994 -- far more than two years ago.

Jarrell v. Nat’l Pers. Records Ctr., No. 3:11-CV-434, 2013 WL 5346483, at *8 (S.D. Ohio Sept. 23,

2013),report and recommendation adopted,No. 3:11-CV-434, 2013 WL 5773930 (S.D. Ohio Oct. 24,

2013);see, e.g., Green v. Westphal,94F. App’x. 902, 904 (3d Cir.2004),cert. denied sub nom.Green

v. Brownlee,543 U.S. 913 (2004) (dismissing Privacy Act claims as time barred when plaintiff filed

suit in 2001, butknew(or should have known)of alleged errorsin his military record since1981“when

he first sought to have his discharge upgraded”).

II.

Inlight of the foregoing, the undersigned RECOMMENDSthat:

1. Defendants’motion to dismiss be GRANTED;

2. This case be TERMINATED ON THE DOCKET;

3. If Plaintiff elects to appeal this decision, he be DENIED in forma pauperisstatus on

appeal,see28 U.S.C. § 1915(a)(3);and

4. Plaintiff be ADVISED that further attempts to file similar complaints in this District

may result in the Court deeming him a vexatious litigator and/or imposing other

appropriate sanctions.

Date: October 16, 2020 s/Michael J. Newman

Hon. Michael J. Newman

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to

the proposed findings and recommendations within FOURTEEN days after being served with this

Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served

on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report

and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS

by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to file objections

by filing a motion for extension, which the Court may grant upon a showing of good cause.

Any objections filed shall specify the portions of the Report and Recommendation objected to,

and shall be accompanied by a memorandum of law in support of the objections. If the Report and

Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the

objecting party shall promptly arrange for the transcription of the record, or such portions of it as all

parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge

otherwise directs.

A party may respond to another party’s objections within FOURTEENdays after being served

with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. P. 6(d) if

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this

Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN

DAYSby application of Fed. R. Civ. P. 6(d).

Failure to make objections in accordance with this procedure may forfeit rights on appeal. See

Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.

1981).