The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
Defendants the United States Navy, Recruiting Officer Amauri Maria, Commander Susan McNinch, and Secretary of the Navy Richard Danzig move pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6) to dismiss the Complaint of pro se plaintiff Moses Bethune, who seeks $20 million in damages in connection with the Navy's denial of his application for enlistment. For the following reasons, defendants' motion to dismiss is granted.
On or about July 9, 2010, Bethune visited a Navy recruiting office on Fordham Road in the Bronx and inquired about opportunities for enlistment. On or about July 14, 2010, Bethune returned for further discussions, and spoke with defendant Recruiting Officer Maria. During the July 14 visit, defendant Maria performed a background check on Bethune which revealed a criminal record, to wit, a charge of unlawful gun possession. Bethune claims that Maria falsely told him that the background check had been conducted by the FBI, and that after telling Bethune of the results of the background check, Maria handed him a number of documents, including records from the Bronx Criminal Court detailing the gun possession charge. Bethune claims that Maria told him his enlistment application was rejected on the basis of that charge. Bethune claims, however, that he had never been convicted of that charge, that he was given "youthful offender" status in relation to the charge, and that any record of the charge should have been sealed. Bethune claims that when he asked Maria how this criminal record had been found, Maria told him not to "worry about it."
Bethune claims that, approximately one week later, he attempted to follow up on the rejection of his application with another Navy recruiter at a station on West 125th Street in Manhattan, with no success. On or about July 23, 2010, Bethune claims that he went to the Bronx Supreme Court to obtain a copy of his criminal record. He asserts that the copy he received was different from the documents he had been shown by defendant Maria, and that the employee he dealt with told him that it is against court policy to divulge sealed information to the Navy.
Bethune thereafter contacted Senator Charles Schumer; he claims that Senator Schumer's staff further inquired on Bethune's behalf. By letter dated August 11, 2010, a non-defendant responded to Senator Schumer's office on behalf of the Navy, stating that the Navy had conducted a routine background check that, with Bethune's consent, included a check of "all pre-service criminal involvement regardless of age or final disposition, whether the record has been sealed, expunged, or dismissed," and that "applications for Navy enlistment are not being accepted from individuals, such as Mr. Bethune, with a felony record." Dkt. 2-2 at 9--10.*fn2
Senator Schumer's office thereafter forwarded a copy of this response to Bethune.
Bethune then went to yet another Navy recruiting station, and was told that the Navy would not accept his application due to the gun possession charge. On or about August 25, 2010, Bethune returned to the Bronx Supreme Court to run yet another check of his criminal record. This check, a record of which appears to be appended to Bethune's Complaint, see Dkt. 2-2 at 10--19, reflects the youthful offender gun possession charge as well as a number of other charges.*fn3
Finally, Bethune claims, during a discussion on an unspecified date with a retired Navy recruiter, he was told that the Navy had improperly accessed and used Bethune's criminal record.
Bethune's Complaint, dated November 30, 2010, seeks $20 million in damages for the Navy's alleged defamation of his character for using a youthful offender charge-what Bethune refers to as a "non crime"-as a basis for rejecting his application for enlistment. Bethune also complains of: (1) the Navy's alleged illegal acquisition and possession of his sealed court record; (2) the acquisition and possession of such records without Bethune's permission; (3) Maria's alleged lie to Bethune that the FBI had conducted the background check; and (4) the Navy's use of these records "maliciously, and with extreme prejudice" to deny Bethune his "right to enlist into and serve in the United States Navy." Dkt. 2-1 at 5. Bethune also alleges that the Navy violated an unspecified First Amendment right and "citizenship rights" under the Fourteenth Amendment. Id. at 2, 6.
Bethune's Complaint, liberally construed, asserts claims against the defendants only in their official capacities. See, e.g., Dkt. 2-1 at 4 ("I am suing the United States Navy for 20 million dollars . . . ") (emphasis added); id. at 5 ("Reason(s) for litigation against: The Department of the Navy of the United States") (emphasis added). The text of the Complaint is reasonably susceptible of no other interpretation. The Court construes Bethune's Complaint to raise these two claims: (1) violations of the First and Fourteenth Amendments to the United States Constitution; and (2) a tort claim of defamation under New York law.
On September 12, 2011, defendants filed a motion to dismiss. They argue that (1) the Court lacks subject matter jurisdiction to award damages based on the rejection of Bethune's application because the government has not waived sovereign immunity on Bethune's claims, and, in any event, there is no constitutional right to enlist in the military; (2) the Navy's conduct was proper because Bethune's criminal history presumptively disqualified him from enlisting in the Navy, Bethune authorized the criminal record check, and any misleading information given by defendant Maria is not actionable; and (3) any tort claim must be dismissed on the basis of sovereign immunity because Bethune did not comply with the procedural requirements of the Federal Tort Claims Act.
Bethune's opposition to this motion was originally due October 28, 2011; Bethune did not submit an opposition. By Order dated November 4, 2011, the Court directed Bethune to submit an opposition to defendants' motion by November 23, 2011 or the Court would consider the motion unopposed. To date, no responsive submission has been received. The Court therefore considers the ...