United States District Court, E.D. Kentucky, Southern Division
LARRY R. BAILEY, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
Larry Bailey sued the United States and several of its agents
based on his dissatisfaction with the amenities at the Marsh
Branch Boat Ramp (“Marsh Branch”), which is
operated by the United States Forest Service. Bailey asserts
purchased an annual pass to access Marsh Branch but found
that the site had neither a working light nor a picnic table.
He requests injunctive relief directing the Forest Service to
correct the noted deficiencies. He has also requested summary
judgment in his favor. [Record No. 1] The defendants in
response filed a motion to dismiss or, in the alternative,
for summary judgment. [Record No. 10] For the reasons that
follow, the defendants' motion will be granted.
12');">12');">12');">12(b)(6) of the Federal Rules of Civil Procedure allows a
defendant to seek dismissal of a complaint which fails to
state a claim upon which relief can be granted. Under this
rule, “[t]he defendant has the burden of showing that
the plaintiff has failed to state a claim for relief.”
DirecTV, Inc. v. Treesh, 1');">487 F.3d 471, 476 (6th Cir.
2007). Federal Rule 8 requires only “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). However, to survive a
motion to dismiss, the complaint must contain allegations
establishing each material element required for recovery
under some actionable legal theory. Bishop v. Lucent
Technologies, Inc., 16');">520 F.3d 516, 519 (6th Cir. 2008)
(internal citation and quotation marks omitted).
reviewing a Rule 12');">12');">12');">12 motion, the Court “construe[s] the
complaint in the light most favorable to the plaintiff,
accept[s] its allegations as true, and draw[s] all reasonable
inferences in favor of the plaintiff.” DirecTV,
Inc., 487 F.3d at 476 (citation omitted). While
pleadings drafted by pro se litigants are held to
less stringent standards than those written by lawyers,
Haines v. Kerner, 19');">404 U.S. 519, 520 (1972), the
Court, “need not accept as true legal conclusions or
unwarranted factual inferences.” DirecTV,
Inc., 487 F.3d at 467. (citation omitted).
Moreover, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Thus, the plaintiff must at least “provide the grounds
of his entitlement to relief, [which] requires more than
labels and conclusions. . . .” Twombly, 550
U.S. at 555 (internal citations and quotation marks omitted).
also noteworthy that the Court generally may not consider
matters presented outside the pleadings without converting
the motion into one for summary judgment under Rule 56.
Fed.R.Civ.P. 12');">12');">12');">12(d); Heinrich v. Waiting Angels Adoption
Servs., Inc., 668 F.3d 393, 405 (6th Cir. 2012');">12');">12');">12).
However, certain matters beyond the allegations in the
complaint, such as “matters of public record, orders,
items appearing in the record of the case, and exhibits
attached to the complaint, also may be taken into
account.” Amini v. Oberlin College, 259 F.3d
493, 502 (6th Cir. 2001) (citations and internal quotation
marks omitted). In the present case, the Court is not
required to consider items outside the Complaint and its
attachments. Therefore, the motion need not be converted to
one seeking summary judgment.
parties agree that the Federal Lands Recreation Enhancement
Act (“FLREA”), 16 U.S.C. § 6801 et
seq., governs the Secretary of Agriculture's ability
to charge fees and provide amenities at Marsh Branch. The
Secretary may charge a “standard amenity recreation
fee” for recreational lands which contain all of the
following amenities: designated parking; a permanent toilet
facility; a permanent trash receptacle; an interpretive sign,
exhibit, or kiosk; picnic tables; and security services.
§ 6802(f)(4)(D). The plaintiff contends that the
Secretary charges a standard amenity recreation fee for
access to Marsh Branch and, therefore, must provide all of
the amenities listed, including a “security
light.” [See Record No. 1, ¶ 15.]
also provides that an “expanded amenity recreation
fee” may be charged when the Secretary determines that
the visitor uses a specific or specialized facility,
equipment or service. § 6802(g). The Act contemplates an
expanded amenity fee for the use of “highly developed
boat launches” which include specialized features such
as mechanical or hydraulic boat lifts, multi-laned paved
ramps and parking, restrooms, and other improvements such as
boarding floats, loading ramps, and fish-cleaning stations.
§ 6802(g)(2)(B). This fee may be charged “in
addition to a standard amenity fee or by itself.”
§ 6802(g)(2). Notably, the provision regarding
highly-developed boat launches does not require the Secretary
to provide safety features, a picnic table, or any other
amenities. See § 6802(g)(2)(B).
defendants maintain that Marsh Branch is classified as a
highly-developed boat launch. The plaintiff concedes that
Marsh Branch features multi-lane paved ramps, paved parking,
boarding floats and, of course, the boat ramp
itself.[1" name="FN1" id=
"FN1">1] [Record No. 12');">12');">12');">12, p. 3] A plain reading of
the statute language demonstrates that when the expanded
amenity recreation fee is charged, on its own, the Secretary
is not obligated to provide the standard recreation amenities
listed under § 6802(f). While some expanded amenity
sites have safety features and picnic tables,
highly-developed boat launches do not fall within that
plaintiff raises arguments in his response that fall outside
of the claims raised in his Complaint. Essentially, he
contends that citizens park at Marsh Branch for purposes
other than utilizing the boat ramp and the defendants charge
them a fee. The plaintiff argues that this amounts to a
standard amenity fee. [Record No. 12');">12');">12');">12, p. 3] However, the
defendants are permitted to charge for a fee for access to
the boat ramp. If individuals who park there choose to engage
in other activities as the plaintiff suggests, this does not
relieve them of paying the required fee. Further, the
plaintiff does not allege that he ever parked at Marsh Branch
for any purpose other than using the boat ramp.
plaintiff also raises an implied-contract theory for the
first time in his response. [Record No. 12');">12');">12');">12, p. 6');">p. 6] However,
the Contract Disputes Act of 1978 governs contracts claims
against the United States. See 41 U.S.C.
§§ 7101-7109. Although it does not appear that the
plaintiff has provided a colorable basis for this claim, the
Court of Federal Claims has exclusive jurisdiction for
judicial review over claims under the Act. §7107. To the
extent the plaintiff's claims are contractual in nature,
the Court does not have jurisdiction to consider them.
See RMI Titanium Co. v. Westinghouse Elec. Corp., 78
F.3d 112');">12');">12');">125, 1136 (6th Cir. 1996).
the defendants report that, despite the lack of a legal
obligation to do so, the light in question has been replaced.
[Record No. 10-1, p. 6');">p. 6] The plaintiff contends that this
development does not render the issue moot because there is a
“reasonable expectation” and a
“demonstrated possibility” that the same
controversy will recur. See, e.g., Murphy v. Hunt,
455 U.S. at 478, 482 (1982). Taking the allegations of the
plaintiff's Complaint as true, and ...