                                   UNITED STATES DISTRICT COURT
                                   FOR THE DISTRICT OF COLUMBIA



ALAN MATTHEW SPADONE,

           Plaintiff,
                                                               Civil Action No. 11-01601 (BJR)
                    v.
                                                               MEMORANDUM OPINION
JOHN M. MCHUGH,

           Defendant


    MEMORANDUM OPINION GRANTING DEFEDANT’S MOTION TO DISMISS [26]

                                                   I. INTRODUCTION

           Before the Court is Defendant John M. McHugh’s Motion to Dismiss [26].                Upon

consideration of the parties’ arguments, the relevant case law, and the entire record, the Court

grants Defendant’s motion.

                         II. FACTUAL AND PROCEDURAL BACKGROUND

           Plaintiff was enrolled at the United States Military Academy (“West Point”) until his

suspension on December 12, 2010. Plaintiff was suspended due to allegations that he had

submitted assignments that were not his own work in violation of West Point’s Honor Code.

Plaintiff alleges that on April 19, 2010, during the Honor Investigative Hearing 1 to consider

Plaintiff’s conduct, the Commandant of Cadets ordered him to stand at attention and read aloud

the “Cadet’s Prayer,” a monotheistic prayer. Compl. at ¶¶ 46-48.

           Plaintiff filed his complaint on September 6, 2011. Plaintiff sought injunctive relief

reversing his disenrollment from West Point and setting aside Defendant’s order that Plaintiff

report for two years of duty as an enlisted soldier. In the alternative, Plaintiff sought injunctive

1
    A procedure used at West Point to investigate alleged violations of the Honor Code.

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relief preventing Defendant from requiring that Plaintiff serve as an enlisted soldier. Plaintiff

also sought monetary damages for back pay 2 and attorney’s fees and costs. Compl. at ¶ 150.

Plaintiff alleged violations of the Administrative Procedures Act, violations of his right to due

process, and that the Commandant of Cadets’ order requiring him to recite the Cadet’s Prayer

violated the Establishment Clause of the First Amendment.

        On June 6, 2012, The Honorable Richard W. Roberts issued an order dismissing the

majority of Plaintiff’s claims. On August 29, 2013, this case was transferred to the undersigned.

The sole remaining claim before the Court is Plaintiff’s allegation that Defendant violated the

Establishment Clause by requiring Plaintiff to recite the Cadet’s Prayer. On June 20, 2012,

Defendant filed the instant Motion to Dismiss [26]. Briefing is now complete.

                                               III. ANALYSIS

    Defendant argues that this Court lacks jurisdiction over Plaintiff’s remaining claim because

this case is moot. Defendant argues that because Plaintiff has been disenrolled from West Point

he is no longer at risk of constitutional harm due to forced prayer ordered by a military superior.

    “Article III of the Constitution restricts the federal courts to deciding only ‘actual, ongoing

controversies.’” Nat’l Black Police Ass’n v. D.C., 108 F.3d 346, 349 (D.C. Cir. 1997) (quoting

Honig v. Doe, 484 U.S. 305, 317 (1988)). “Even where litigation poses a live controversy when

filed . . . [a] court [must] refrain from deciding it if events have so transpired that the decision

will neither presently affect the parties’ rights nor have a more-than-speculative chance of

affecting them in the future.” Nat’l Black Police Ass’n, 108 F.3d at 349 (quoting Clarke v.

United States, 915 F.2d 699, 701 (D.C. Cir. 1990)). In cases where a plaintiff seeks injunctive



2
 Cadets at West Point are paid a salary by the Army from which the costs of their attendance are deducted. See
FAQ – Cadet Life, United States Military Academy (Jan. 7, 2014, 11:57 AM),
http://www.usma.edu/admissions/SitePages/FAQ_Life.aspx.

                                                        2
relief, the plaintiff must allege some likelihood of future injury. See City of Los Angeles v.

Lyons, 461 US. 95, 105-06 (1983).

       In his complaint Plaintiff alleges only that he was ordered by the Commandant of Cadets

to read the Cadet’s Prayer. Defendant argues that Plaintiff’s establishment clause claim is

limited to his relationship with West Point. Defendant argues that, because Plaintiff is no longer

enrolled at West Point, there is no possibility that he will face the harm from which he seeks

injunctive relief, namely, violation of the Establishment Clause. Defendant further argues that

Plaintiff’s case does not fall into the “capable of repetition, yet avoiding review” exception to

mootness because the specific harm Plaintiff complains of is not capable of repetition given his

disenrollment from West Point.

       Plaintiff argues in response that his orders to serve two years of active duty as an enlisted

soldier bring him within reach of further harm from Defendant. Plaintiff argues that he “will be

subject to the authority of the Defendant for at least another two years. As long as Spadone is in

the Army, his constitutional rights will be in danger.” Pl.’s Opp’n at 3. Plaintiff generalizes the

injunctive relief he seeks as against “a military superior’s order to pray.” Id.

   The Court is not persuaded by Plaintiff’s argument. Plaintiff alleges, without evidence of a

policy or practice on the part of Defendant, that he may be ordered by a military superior to pray

in the future. Such an allegation is far too speculative to establish a future risk of harm. As

noted by Defendant, the Army already recognizes that “[t]he Establishment Clause forbids any

governmental authority from mandating a religion or way of prayer,” and that “[p]articipation in

religious activities is voluntary.” Army Reg. 165-1 (Army Chaplain Corps Activities) at ¶¶ 1-

6(b), 2-1(b); Def.’s Reply, Ex. 2. Defendant also notes that the Army maintains a policy to

investigate alleged religious discrimination including, presumably, mandatory prayer. Plaintiff



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has failed to demonstrate that any Constitutional right of his is presently in jeopardy or likely to

be in jeopardy in the future. As such, the Court finds this case moot.

   Plaintiff also makes a brief argument that his case is not moot because he is entitled to money

damages for Defendant’s alleged Constitutional violation pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). However, Plaintiff

failed to plead the threshold requirements of a Bivens action in his complaint, and indeed did not

assert a Bivens cause of action until his opposition to Defendant’s motion to dismiss. Defendant

McHugh was not sued in his individual capacity, nor did Plaintiff seek money damages in his

complaint.   Further, Plaintiff did not allege the personal involvement of Defendant in the

Establishment Clause violation, and appears to rest on a theory of respondeat superior, i.e. that

Defendant is responsible for the actions of the Commandant of Cadets. However, “Bivens claims

cannot rest merely on respondeat superior . . . [t]he complaint must at least allege that the

defendant federal official was personally involved in the illegal conduct.” Simpkins v. District of

Columbia Government, 108 F.3d 366, 369 (D.C. Cir. 1997). As such, Plaintiff’s untimely Bivens

argument does not save his case from mootness.

       An order consistent with this memorandum opinion will issue separately.

       Signed on January 7, 2014.




                                                     BARBARA J. ROTHSTEIN
                                                     UNITED STATES DISTRICT JUDGE




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