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Hammond v. Federal Bureau of Prisons

September 28, 2010

KENNETH HAMMOND, PLAINTIFF,
v.
FEDERAL BUREAU OF PRISONS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No. 23

MEMORANDUM OPINION

GRANTING THE DEFENDANTS'RENEWED MOTION TO DISMISS

I. INTRODUCTION

This matter comes before the court on the defendants' renewed motion to dismiss. The pro se plaintiff, who was sentenced to a term of imprisonment in the Superior Court of the District of Columbia, has asserted Fifth Amendment claims against certain individual defendants, as well as a claim under the Federal Tort Claims Act ("FTCA") against the Federal Bureau of Prisons ("BOP"). In their renewed motion to dismiss, the defendants assert that the plaintiff's Fifth Amendment claims must be dismissed because the plaintiff failed to serve the amended complaint on the individual defendants, and that the plaintiff's FTCA claims must be dismissed because he failed to exhaust his administrative remedies before bringing suit. For the reasons discussed below, the court grants the defendants' motion.

II. FACTUAL & PROCEDURAL BACKGROUND

In January 2008, the plaintiff commenced this action against the "D.C. Records Center and Federal Bureau of Prisons," alleging violations of his constitutional rights.*fn1 See generally Compl. In April 2008, the BOP filed a motion to dismiss. See generally BOP's Mot. to Dismiss. In his opposition to the motion, the plaintiff asserted, for the first time, an FTCA claim against the BOP and Fifth Amendment Bivens*fn2 claims against two individuals not named in the original complaint, Ebony Hill*fn3 and D. Livingston.*fn4 See generally Pl.'s Opp'n to BOP's Mot. to Dismiss.

On January 22, 2009, the court issued a memorandum opinion construing the plaintiff's opposition as an amended complaint and dismissing all of the plaintiff's claims except the newly raised FTCA claim against the BOP and the Fifth Amendment claims against Hill and Livingston in their individual capacities. See generally Mem. Op. (Jan. 22, 2009). In the order accompanying the memorandum opinion, the court directed the plaintiff to serve the newly-named individual defendants with the amended complaint by May 22, 2009. See Order (Jan. 22, 2009). The plaintiff was advised that failure to effect service by that date could result in dismissal of his action. See id.

On November 16, 2009, the court granted the defendants' motion for leave to file a renewed motion to dismiss addressing the claims raised in the plaintiff's amended complaint. Mem. Order (Nov. 16, 2009) at 1-2. In the renewed motion to dismiss, the defendants contend that the plaintiff's Fifth Amendment claims against Hill and Livingston must be dismissed because the plaintiff failed to properly serve these individuals as required by the court's January 22, 2009 order. Defs.' Renewed Mot. to Dismiss ("Defs.' Mot.") at 5-6. The defendants also argue that the plaintiff's FTCA claim must be dismissed because the plaintiff failed to properly exhaust his administrative remedies before bringing suit. Id. at 6-7.

In response to the defendants' motion for leave to file a renewed motion to dismiss, the plaintiff filed an opposition to the defendants' renewed motion to dismiss addressing the defendants' arguments regarding improper service of Hill and Livingston. See generally Pl.'s 2d Mot. for Default J. & Opp'n to Defs.' Renewed Mot. to Dismiss ("Pl.'s Opp'n"). The opposition did not, however, address the defendants' arguments concerning dismissal of the plaintiff's FTCA claims. See generally id.

Accordingly, the court directed the plaintiff to file a supplemental opposition by November 30, 2009 addressing the defendants' arguments concerning dismissal of the plaintiff's FTCA's claims. Mem. Order (Nov. 16, 2009) at 3. After obtaining numerous extensions of time, the plaintiff filed his supplemental opposition on August 12, 2010. See generally Pl.'s Suppl. Opp'n. With the defendant's motion now ripe for adjudication, the court turns to the applicable legal standards and the parties' arguments.

III. ANALYSIS

1. The Court Dismisses the Plaintiff's Fifth Amendment Claims

The defendants contend that the court should dismiss the plaintiff's Fifth Amendment claims against Hill and Livingston because the plaintiff failed to properly serve them with the amended complaint. Defs.' Mot. at 5-6; Defs.' Reply in Support of Defs.' Mot. ("Defs.' Reply") at 1-3. The plaintiff responds that he properly served Hill and Livingston by mailing a copy of the summons and amended complaint by certified mail, return receipt requested, to their last known places of employment. Pl.'s Opp'n at 1-2. The plaintiff has not, ...


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