The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
FARIS ABDULMATIYN,
Plaintiff, MEMORANDUM AND ORDER
-against- 24-CV-7709 (RER) (LB)
U.S. DEPT OF THE MARINE CORP.,
Defendant.
--------------------------------------------------------------x
FARIS ABDULMATIYN,
Plaintiff,
-against- 24-CV-8028 (RER) (LB)
BOARD OF MARINE/NAVAL REVIEW,
Defendant.
--------------------------------------------------------------x
RAMÓN E. REYES, JR, United States District Judge:
Plaintiff Faris Abdulmatiyn brings these pro se actions, purportedly under Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging that he was wrongfully
discharged from the military in 1969. His requests to proceed in forma pauperis are
granted for the purpose of this order. For the reasons discussed below, the actions are
dismissed with prejudice.
BACKGROUND
The following factual allegations are taken from the two complaints and are
assumed to be true for purposes of this Order. (No. 24-CV-7709, ECF No. 1; No. 24-CV-
8028, ECF No. 1). Plaintiff began seeing a psychiatrist while he was serving in Vietnam
in 1968. (No. 24-CV-7709, ECF No. 1 at 4.) In October 1969, he was “facing a court
martial” when a lieutenant at Camp Lejeune advised him to accept an “undesirable
discharge first before the court martial or it will be wors[e] if [he went] to the court martial
and [was] dishonorably discharged after spending a lot of years in the brig.” (Id.) The
lieutenant also advised him that “Nigro’s [sic] rarely get honorable discharges and an
undesirable discharge could be upgraded in six months.” (Id.) “The U.S. Marine Corps
denied [Plaintiff’s] right to properly defend [himself] against a negative discharge by not
affording [him] counsel while [he] was psychologically unfit to make a [decision] without
the assistance of counsel.” (Id. at 3). At the time, he requested the opportunity to speak
with his mental health doctor prior to making the decision, but his request was denied.
(No. 24-CV-8028, ECF No. 1 at 3-4.)
Plaintiff states: “I am unable to obtain the benefits I need to live on as well as the
medical treatment I need because of the restrictions I am under. I have been waiting over
four years to receive a response from the respondents.” (No. 24-CV-7709, ECF No. 1 at
5). One of his new Complaints requests that “my appeal be heard and decided; or in the
alternative that I be given a new hearing to determine if my discharge should or shouldn’t
be upgraded to an honourable [sic] discharge.” (Id.) He does not identify the nature of this
appeal or provide documentation of any hearings or decisions. Plaintiff’s second new
action suggests alternative relief: “I want my discharge upgraded to an honourable [sic]
discharge or that I be re-[e]nlisted to military service to serve out the remainder of my
service time.” (No. 24-CV-8028, ECF No. 1 at 5).
Plaintiff previously brought a similar action in this Court under Bivens and the
Administrative Procedure Act (“APA”), in which he requested to upgrade his Undesirable
Discharge to a medical discharge or hardship discharge. These claims were dismissed
for failure to state a claim after defendants moved to dismiss Plaintiff’s amended
complaint. See Matiyn v. Dep't of the Navy, Council of Rev. Recs., No. 21-CV-2133 (WFK)
(LB), 2021 WL 2206613, at *1 (E.D.N.Y. June 1, 2021); see also No. 21-CV-2133, ECF
No. 34 at 6–7 (“Decision & Order”). As the Court explained in its Decision & Order,
“Plaintiff failed to allege how the [denial of Plaintiff’s] request to upgrade his [] discharge
was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with
law.” Decision & Order at 6.
STANDARD OF REVIEW
“A document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). If a liberal reading of the complaint “gives any indication that a valid
claim might be stated,” this Court must grant leave to amend the complaint. See Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However, “a complaint must contain
sufficient factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim will be considered plausible on its face “when the plaintiff pleads
factual content that allows the [C]ourt to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In addition, 28 U.S.C. §
1915(e)(2)(B) requires a district court to dismiss a case filed in forma pauperis if the court
determines that the action: “(i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).
DISCUSSION
The doctrines of collateral estoppel and res judicata “protect parties from having
to relitigate identical claims or issues and . . . promote judicial economy.” Transaero, Inc.
v. La Fuerza Aerea Boliviana, 162 F.3d 724, 731 (2d Cir. 1998). “Collateral estoppel bars
a party from raising a specific factual or legal issue in a second action when the party had
a full and fair opportunity to litigate the issue in a prior proceeding.” Id. Res judicata bars
subsequent litigation if: “(1) the previous action involved an adjudication on the merits; (2)
the previous action involved the [parties] or those in privity with them; [and] (3) the claims
asserted in the subsequent action were, or could have been, raised in the prior action.”
Monahan v. N.Y.C. Dep't of Corrs., 214 F.3d 275, 285 (2d Cir. 2000). “Even claims based
upon different legal theories are barred provided they arise from the same transaction or
occurrence.” L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 88 (2d Cir. 1999).
These two complaints renew Plaintiff’s prior request to intervene in the military
decision-making process and change the records of his discharge. Plaintiff’s prior action
was dismissed with prejudice, on the merits, where Judge Kuntz found that Plaintiff failed
to allege how the denial of the upgrade of his discharge was arbitrary and capricious,
failed to identify the statutes or regulations that were violated, and, in any event the Court
lacked to power to change Plaintiff’s discharge. (No. 21-CV-2133, ECF No. 34 at 6-7).
Plaintiff’s new complaints are also challenging the military’s review process, where
he claims that he has waited more than four years for an unidentified appeal. Therefore,
this potential claim appears to be the same as a claim that was considered and rejected
in the prior lawsuit. Plaintiff had petitioned to upgrade his discharge status and the BCNR
denied the request on May 14, 2021. The Court previously denied Plaintiff’s APA
challenge to this decision for failure to state a claim because he failed to allege the
BCNR’s denial was arbitrary, capricious, or contrary to law.
As Plaintiff’s new complaints docketed at No. 24-CV-7709 and No. 24-CV-8028
essentially raise the same claims that were raised and dismissed on the merits in No. 21-
CV-2133, these two new actions are precluded by res judicata and collateral estoppel.
CONCLUSION
These matters are dismissed under the doctrines of res judicata and collateral
estoppel. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status is denied
for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is respectfully directed to enter judgment in both cases and send a
copy of this Order and the judgments to Plaintiff by mail and note the mailing on the
docket.
SO ORDERED.
Hon. Ramón E. Reyes, Jr. Digitally signed by Hon. Ramón E. Reyes, Jr.
Date: 2024.11.25 12:10:48 -05'00'
RAMÓN E. REYES, JR.
United States District Judge
Dated: November 25, 2024
Brooklyn, New York