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Vazquez v. Federal Bureau of Prisons

United States District Court, D. Columbia.

November 21, 2013

Pablo J. Figueroa Vazquez, Plaintiff,
Federal Bureau of Prisons et al., Defendants

PABLO J. FIGUEROA VAZQUEZ, Plaintiff, Pro se, Santurce, PR.



COLLEEN KOLLAR-KOTELLY, United States District Judge.

Page 175


Plaintiff, a federal prisoner proceeding pro se, alleges that he was deprived of medical care to treat a " serious burn" he sustained while confined at the Metropolitan Detention Center (" MDC" ) in Guaynabo, Puerto Rico. Plaintiff filed this action from the Federal Prison Camp in Edgefield, South Carolina, against the U.S. Bureau of Prisons and the " Department of Health Care" at MDC. Compl. Caption.

Page 176

Claiming violations of the Fifth Amendment's due process clause and the Eighth Amendment's proscription against cruel and unusual punishment, see Compl. at 5, plaintiff seeks declaratory and injunctive relief and $150,000 in monetary damages for the alleged inadequate medical care he received at MDC. See Compl. at 5-6 (" Prayer for Relief" ); id. at 4 (listing alleged inadequate medical services and describing " the institution" providing them as " a secure complex of building [sic] constructed in Guaynabo, Puerto Rico" ). In addition, plaintiff seeks class certification pursuant to Federal Rule of Civil Procedure 23. Id. at 5.

Defendants have moved to dismiss the case under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(3) for improper venue, and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Defs.' Mot. to Dismiss [Dkt. # 10]. In response, plaintiff has filed " Written Objections to Affidavit," [Dkt. # 15], and a " Motion for Preliminary Hearing Under Rule 12(i)" [Dkt. # 16], seeking a hearing on the jurisdictional question. For the following reasons, the Court finds subject matter jurisdiction wanting and, thus, will grant defendants' motion to dismiss under Rule 12(b)(1) and will deny plaintiff's motion for a hearing as moot. See Rule 12(h)(3) (requiring dismissal of a case " at any time" subject matter jurisdiction is found wanting). In addition, the Court will deny plaintiff's request for class certification.

1. Sovereign Immunity

The named defendants are components of a United States agency, and " [t]he United States is protected from unconsented suit under the ancient common law doctrine of sovereign immunity." Shuler v. U.S. 531 F.3d 930, 932-33, 382 U.S.App. D.C. 201 (D.C. Cir. 2008) (quoting Gray v. Bell, 712 F.2d 490, 506, 229 U.S.App. D.C. 176 (D.C. Cir. 1983)). Plaintiff invokes 42 U.S.C. § 1983 as the basis of jurisdiction for his claims arising under the Constitution. See Compl. at 2. That statute authorizes a cause of action against individuals who are alleged to have violated one's rights " secured by the Constitution and [federal] laws" while acting under the authority of " any statute, ordinance, regulation, custom, or usage, of any State . . . or the District of Columbia . . . ." 42 U.S.C. § 1983. Since the named defendants are not state actors, § 1983 is inapplicable. Construing the complaint as brought under the federal analog to § 1983 created by Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), is unavailing because " [i]t is . . . well settled that Bivens liability cannot be imposed on an agency of the Federal Government." Drake v. FAA, 291 F.3d 59, 72, 351 U.S.App. D.C. 409 (D.C. Cir. 2002) (citing FDIC v. Meyer, 510 U.S. 471, 475-79, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)); see id. (finding no need to linger in dismissing Bivens complaint naming " only the FAA itself as defendant" ). Therefore, the Court finds that it lacks subject matter jurisdiction over plaintiff's claim for damages against the only named agency defendants for alleged constitutional violations.[1] See Kim v. U.S.,

Page 177

632 F.3d 713, 715, 394 U.S.App. D.C. 149 (D.C. Cir. 2011) (affirming " jurisdictional dismissal" of Bivens claim against IRS agents in their official capacities).

Through the Federal Tort Claims Act (" FTCA" ), the United States has consented to be sued for money damages for certain torts under certain conditions. See 28 U.S.C. § § 1346(b)(1), 2671-80. The FTCA does not authorize a suit for constitutional torts, however. See FDIC v. Meyer, 510 U.S. at 475-79; Dancy v. Dep't of Army, 897 F.Supp. 612, 614 (D.D.C. 1995) (citing cases). Besides, plaintiff cannot otherwise maintain a tort claim against the United States without first exhausting his administrative remedies by " first present[ing] the claim to the appropriate Federal agency. . . ." 28 U.S.C. § 2675. Plaintiff has not indicated that he has pursued has administrative remedies, and the " presentment" requirement is " jurisdictional." GAF Corp. v. United States, 818 F.2d 901, 917-20, 260 U.S.App. D.C. 252 (D.C. Cir. 1987); see Abdurrahman v. Engstrom, 168 F.Appx. 445, 445 (D.C. Cir. 2005) (per curiam) (" [T]he district court properly ...

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