United States District Court, District of Columbia
AMY HERMAN JACKSON UNITED STATES DISTRICT JUDGE
Plaintiff Jerome Hampton has brought this action against nine named federal defendants and one unnamed federal defendant, asserting fourteen federal, state, and common law claims arising out of his arrest on a federal warrant in Maryland on June 19, 2007, and his subsequent imprisonment by the Federal Bureau of Prisons in West Virginia from September 2010 until July 2013. 2d Am. Compl. [Dkt. #29]. The named federal defendants - Federal Bureau of Investigation ("FBF') Director James B. Comey, FBI Special Agents Timothy J. Ervin, Brian Mumford, Alyson Samuels, Tucker G. Vanderbunt, and Ryan M. Pardee, Warden of the Federal Bureau of Prisons ("BOP") facility in Morgantown, West Virginia Anne Mary Carter, Morgantown official Dr. Waters, and BOP Director Charles E. Samuels, Jr. - have moved to dismiss plaintiffs claims pursuant to Federal Rules of Civil Procedure 8 and 12(b)(1), (2), (3), (4), (5), and (6). Defs.' Mot. to Dismiss [Dkt. # 39] ("Defs.' Mot.").
Plaintiff’s criminal conviction was ultimately overturned on legal grounds, so he is understandably chagrinned about his encounter with the criminal justice system. But because the Court finds that it lacks subject matter jurisdiction over several of plaintiff’s common law tort claims, it lacks personal jurisdiction over several defendants, venue is improper in this District, the federal defendants were not properly served with process, many of plaintiff’s claims are time-barred, and plaintiff has failed to state a plausible claim for relief against any of the federal defendants, the motion to dismiss will be granted. For many of the same reasons, the Court will also dismiss plaintiff’s claims against the two unnamed Doe defendants. Thus, this matter will be dismissed in its entirety.
I. Factual Background
Plaintiff alleges that on June 19, 2007, several FBI agents and the unnamed Mary Doe defendant arrested him at his home in Maryland. 2d Am. Compl. ¶ 26. He states that he asked to see the arrest warrant, but the FBI agents and defendant Doe “refused to produce [it].” Id. ¶¶ 27– 28. He claims that the FBI agents then entered his home “without producing a search warrant, ” and that his “minor children were removed from house [sic] in handcuffs, and placed on their knee’s [sic] outside the home” by the FBI agents. Id. ¶¶ 31–33. The FBI agents then searched plaintiff’s home. Id. ¶ 35. Plaintiff alleges that the agents transported him from Maryland to the District of Columbia jail without first taking him before a federal magistrate, a local judge, or a federal or state court in Maryland, or providing him with what he refers to as an “Extradition Hearing.” Id. ¶¶ 36–41.
After he had been convicted at trial, see Jury Verdict Form [Dkt. # 575], United States v. Hampton, No. 07-cr-0153-TFH-JMF-14, plaintiff was committed to the custody of the Federal Bureau of Prisons in Morgantown, West Virginia in September 2010. 2d Am. Compl. ¶¶ 8, 44. He alleges that in July 2013, while in custody, he was treated for a nerve issue by Dr. Waters and the unnamed John Doe defendant, and “was left in pain” after being treated. Id. ¶¶ 47–50. Plaintiff was released from the custody of the Bureau of Prisons in July 2013, after his conviction was vacated by the D.C. Circuit. Id. ¶¶ 8, 56; see also United States v. Hampton, 718 F.3d 978, 984 (D.C. Cir. 2013).
Based on those events, plaintiff initiated this action on September 23, 2014. Compl. [Dkt. # 1]. He has brought a variety of claims against the federal defendants: constitutional claims for violations of his Fourth, Fifth, Sixth, and Eighth Amendment rights pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); common law tort claims for malicious prosecution, conspiracy to abuse process, false light invasion of privacy, infliction of emotional distress, and false imprisonment; and a common law expungement action based upon the allegedly unlawful maintenance of records. 2d Am. Compl. ¶¶ 57–129.
II. Procedural History
On February 3, 2015, the Court consolidated this case with a related civil action, and it directed plaintiff to file a single, consolidated complaint advancing all of his claims against all defendants. Order (Feb. 3, 2015) [Dkt. # 15]. Because it did not appear that plaintiff had properly served any of the defendants with the original complaint, the Court ordered plaintiff to serve the amended consolidated complaint on all parties, and to provide adequate proof of service for each defendant. Id. After several procedural delays which are not relevant here, plaintiff filed the second amended consolidated complaint on March 30, 2015, 2d Am. Compl. [Dkt. # 29], and filed service materials for some defendants on April 6, 2015. Affs. of Service [Dkt. # 32].
On June 17, 2015, the federal defendants filed the pending motion pursuant to Federal Rules of Civil Procedure 8 and 12(b)(1), (2), (3), (4), (5), and (6). Defs.’ Mot.; Mem. of P. & A. in Supp. of Defs.’ Mot. [Dkt. # 39] (“Defs.’ Mem.”). Plaintiff, who is represented by counsel, opposed the motion on July 21, 2015, Pl.’s Resp. to Defs.’ Mot. [Dkt. # 43] (“Pl.’s Opp.”), and the federal defendants filed a reply on August 24, 2015. Defs.’ Reply. to Pl.’s Opp. [Dkt. # 45].
STANDARD OF REVIEW
I. Subject Matter Jurisdiction
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
II. Personal Jurisdiction
It is the plaintiff who bears the burden of establishing personal jurisdiction over each defendant. Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). In order to survive a motion to dismiss for lack of personal jurisdiction, the “plaintiff must make a prima facie showing of the pertinent jurisdictional facts.” First Chi. Int’l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). To establish that personal jurisdiction exists, the plaintiff must allege specific acts connecting the defendant with the forum. In re Papst Licensing GMBH & Co. KG Litig., 590 F.Supp.2d 94, 97–98 (D.D.C. 2008), citing Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001). A plaintiff “cannot rely on conclusory allegations” to establish personal jurisdiction. Atlantigas Corp. v. Nisource, Inc., 290 F.Supp.2d 34, 42 (D.D.C. 2003).
“In considering a Rule 12(b)(3) motion, the court accepts the plaintiff’s well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s favor.” Pendleton v. Mukasey, 552 F.Supp.2d 14, 17 (D.D.C. 2008), quoting Darby v. U.S. Dep’t of Energy, 231 F.Supp.2d 274, 276 (D.D.C. 2002). The court may consider material outside of the pleadings. Artis v. Greenspan, 223 F.Supp.2d 149, 152 (D.D.C. 2002), citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947). “Because it is the plaintiff’s obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper.” Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C. 2003). “Unless there are pertinent factual disputes to resolve, a challenge to venue presents a pure question of law.” Williams v. GEICO Corp., 792 F.Supp.2d 58, 62 (D.D.C. 2011).
IV. Service of Process
Under Rule 12(b)(5), the plaintiff bears the burden to establish that he has properly effectuated service. Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). When the defendant challenges the sufficiency of service, the plaintiff “must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law.” Id. (citations omitted). Service by certified mail may be insufficient if the summons and complaint are not addressed to a specific and proper party and if there is no confirmation of receipt by a person authorized to accept service. See Angelich v. MedTrust, LLC, 910 F.Supp.2d 128, 132 (D.D.C. 2012); Wilson v. Prudential Fin., 332 F.Supp.2d 83, 88–89 (D.D.C. 2004). If a plaintiff does not meet his burden to show proper service of process, the Court may dismiss the complaint without prejudice for ineffective service of process. See Fed. R. Civ. P. 12(b)(5); Simpkins v. D.C. Gov’t, 108 F.3d 366, 368–69 (D.C. Cir. 1997).
V. Failure to State a Claim
“To survive a [Rule 12(b)(6)] motion to dismiss, 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), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, citing Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550 U.S. at 556. A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action, ” id., quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., citing Twombly, 550 U.S. at 555.
When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in the plaintiff’s favor, and the Court should grant the plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions. See id.; see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
Defendants have moved to dismiss the second amended complaint pursuant to Federal Rules of Civil Procedure 8 and 12(b)(1), (2), (3), (4), (5), and (6). Defs.’ Mot. at 1. The second amended complaint contains many duplicative and overlapping claims, and it is not clear in some instances which claims are asserted against which defendants and on what basis. Thus, while the Court finds that many of the counts could be dismissed on any one of several independent grounds, it will proceed to examine all of the reasons for dismissal raised by the federal defendants, in order to ensure that the Court’s analysis is comprehensive and that the viability of each of plaintiff’s claims is resolved in its entirety.
I. The Court lacks subject matter jurisdiction over Counts II, III, and IV pursuant to the Federal Tort Claims Act, insofar as those claims arise out of libel or slander.
In Counts I through V, plaintiff asserts tort claims against FBI agents Timothy J. Ervin, Brian Mumford, Alyson Samuels, Tucker G. Vanderbunt, and Ryan M. Pardee (the “FBI agent defendants”). 2d Am. Compl. ¶¶ 57–77. Specifically, plaintiff brings claims of malicious prosecution, conspiracy to abuse process, false light invasion of privacy, infliction of emotional distress, and false imprisonment, based on the allegations that the agents brought false charges against him, arrested him, caused his detention and imprisonment, and damaged his reputation. Id.
The Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679, commonly referred to as the Westfall Act, “accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007); see also Majano v. United States, 469 F.3d 138, 139 (D.C. Cir. 2006) (“Under the terms of the Westfall Act, federal employees are immune from state tort lawsuits for money damages if their tortious conduct occurred while they were acting within the scope of their employment.”), citing 28 U.S.C. § 2679(d)(1), and Haddon v. United States, 68 F.3d 1420, 1422–23 (D.C. Cir. 1995). The immunity is triggered if the Attorney General or his delegate certifies “that ‘the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose.’” Jacobs v. Vrobel, 724 F.3d 217, 219–20 (D.C. Cir. 2013), quoting 28 U.S.C. § 2679(d)(1). “Upon certification, the employee is dismissed from the action, [and] the United States is substituted as the defendant.” Id. at 220, citing 28 U.S.C. § 2679(d)(1)–(2).
Here, the United States has filed a Westfall Act certification averring that the FBI agent defendants “were acting within the scope of their employment as employees of the United States at the time of the alleged incidents” at issue in this case, see Certification [Dkt. # 39-6], and plaintiff has not challenged it. Thus, plaintiff’s tort claims against the FBI agent defendants will be dismissed, and the United States will be substituted as the defendant in Counts I through V.
After a Westfall Act substitution, “the suit is governed by the Federal Tort Claims Act (‘FTCA’) and is subject to all of the FTCA’s exceptions for actions in which the Government has not waived sovereign immunity.” Wuterich v. Murtha, 562 F.3d 375, 380 (D.C. Cir. 2009), citing Osborn, 549 U.S. at 230. Should one of the exceptions to the FTCA apply, the Westfall Act certification “converts the tort suit into a FTCA action over which the federal court lacks subject matter jurisdiction and has the effect of altogether barring plaintiff’s case.” Id.; see also Majano, 469 F.3d at 139.
One exception applicable here is that “the FTCA exempts from its waiver of sovereign immunity any claim ‘arising out of’ libel or slander.” Edmonds v. United States, 436 F.Supp.2d 28, 35 (D.D.C. 2006), citing 28 U.S.C. § 2680(h). “Courts consistently have held that claims for ‘false light’ invasion of privacy are barred by the libel and slander exception.” Id., citing Johnson v. Sawyer, 47 F.3d 716, 732 n.34 (5th Cir. 1995), and Metz v. United States, 788 F.2d 1528, 1535 (11th Cir. 1986); see also Mittleman v. United States, 104 F.3d 410, 415 (D.C. Cir. 1997) (“[T]he sine qua non of a false light claim is giving ‘publicity’ to a matter which places the plaintiff ‘before the public’ in a false light. Libel and slander similarly involve publication of false statements about another.”) (internal citations omitted). Similarly, courts have found that claims for infliction of emotional distress, where they are based on allegedly defamatory comments made by prosecuting officials to the press, are also excepted from the FTCA’s sovereign immunity waiver. See, e.g., Loumiet v. United States, 65 F.Supp.3d 19, 26–27 (D.D.C. 2014). In other words, “[c]laims, no matter how they are described by a plaintiff, based on dissemination of defamatory information pertaining to a federal investigation are barred by the libel/slander exemption.” Edmonds, 436 F.Supp.2d at 35, citing Kugel v. United States, 947 F.2d 1504 (D.C. Cir. 1991).
Aspects of plaintiff’s conspiracy to abuse process and infliction of emotional distress claims and the entirety of his false light invasion of privacy claim are barred by the libel and slander exception, because they are premised on plaintiff’s allegation that the FBI agent defendants caused him to be portrayed publicly in a false and defamatory light. He alleges that the FBI agent defendants conspired to abuse process by filing charges against him “for the purpose of creating false narratives about Plaintiff that harmed Plaintiff’s, business interests and his family, ” 2d Am. Compl. ¶ 61; that they took actions that resulted in plaintiff’s portrayal in a “highly offensive” “false light, ” including the publication of articles about him in the Washington Post, id. ¶¶ 63–69; and that they inflicted emotional distress when they “created false narratives and filed malicious criminal charges in order to harm” him. Id. ¶ 72.
To the extent that these claims “aris[e] out of” allegedly defamatory statements and conduct by the FBI agent defendants, they are barred by the libel and slander exception to the FTCA. 28 U.S.C. § 2680(h); see also Loumiet, 65 F.Supp.3d at 26–28 (dismissing the plaintiff’s FTCA claims that “allege injuries arising out of the statements Plaintiff alleges Defendant made to the press, ” because “these claims arise out of allegedly defamatory statements and the United States has not waived its sovereign immunity as to such claims”); Edmonds, 436 F.Supp.2d at 35–37 (dismissing the plaintiff’s claim for negligent infliction of emotional distress where “[t]he action of the Government of which [the plaintiff] complains is the FBI’s disclosure of information, allegedly resulting in injury to her reputation, economic harm, and emotional distress”). Pursuant to section 2680(h), the Court finds that it lacks subject matter jurisdiction over those claims.
II. The Court lacks personal jurisdiction over defendants Carter and Waters.
Defendants assert that the Court may not exercise personal jurisdiction over “defendants that are not from the District of Columbia and who do not have sufficient minimum contacts with this district.” Defs.’ Mem. at 10. Although defendants do not specify, this appears to refer to defendants Anne M. Carter and Dr. Waters, who plaintiff alleges are employees of the BOP facility in Morgantown, West Virginia. See 2d Am. Comp. ¶¶ 9, 14.
Plaintiff bears the burden of establishing that this Court possesses personal jurisdiction over each defendant. Crane, 894 F.2d at 456. Plaintiff does not contend that defendants Carter and Waters are residents of the District of Columbia, and the Court cannot infer as much from the allegations of the second amended complaint. See 2d Am. Compl. ¶¶ 9, 14. Thus, for the Court to have personal jurisdiction in the District of Columbia over non-resident defendants Carter and Waters, plaintiff must show that “jurisdiction is applicable under the state’s long-arm statute, ” and that “a finding of jurisdiction satisfies the constitutional requirements of due process.” GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000), citing United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995).
The District of Columbia Long Arm statute provides, in part, that a court may exercise personal jurisdiction over an individual as to claims arising from a person’s
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia; [or]
(5) having an interest in, using, or possessing real property in the District of Columbia.
D.C. Code § 13-423(a)(1)–(5).
Plaintiff does not claim that defendants Carter or Waters contracted to supply services in the District, or that they have an interest in, use, or possess real property in the District. He alleges that they “have their principle [sic] place of business around the Washington D.C., area, ” and that they work for the Federal Bureau of Prisons, “which is Head Quartered in the Washington D.C., area.” 2d Am. Compl. ¶¶ 51–52, 55. But “the mere fact that [a non-resident defendant] is an employee of the BOP, the headquarters office of which is in the District, does not render [the defendant] subject to suit in [his or her] individual capacity in the District of Columbia.” Scinto v. BOP, 608 F.Supp.2d 4, 7–8 (D.D.C.) (alterations in original), aff’d, 352 F. App’x 448 (D.C. Cir. 2009), quoting Walton v. BOP, 533 F.Supp.2d 107, 112 (D.D.C. 2008); see also Stafford v. Briggs, 444 U.S. 527, 543–45 (1980) (holding that absent minimum contacts other than those arising from federal employment, a court may not exercise personal jurisdiction over a federal official in his individual capacity). Furthermore, the second amended complaint does not allege facts that establish that plaintiff suffered an injury in the District of Columbia. Rather, with regard to his claims against defendants Carter and Waters, “[t]he injuries of which plaintiff complains occurred while he was incarcerated” in West Virginia. Scinto, 608 F.Supp.2d at 8; see also 2d Am. Compl. ¶¶ 49–50, 95, 98, 106. Thus, plaintiff has failed to show that the Court may properly exercise personal jurisdiction over defendants Carter and Waters under the Long Arm statute.
For the same reasons, plaintiff also cannot demonstrate the requisite “minimum contacts” between defendants Carter and Waters and the District of Columbia “establishing that ‘the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’” GTE New Media Servs., 199 F.3d at 1347, quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); see also Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 95 (D.C. Cir. 2002). It is “essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Creighton Ltd. v. Gov’t of State of Qatar, 181 F.3d 118, 127 (D.C. Cir. 1999), quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958). In short, “the defendant[s’] conduct and connection with the forum State [must be] such that [they] should reasonably anticipate being haled into court there.” GTE New Media Servs., 199 F.3d at 1347, quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). The second amended complaint is devoid of any factual allegations regarding defendants Carter and Waters that would support such a finding here. Thus, the Court cannot exercise personal jurisdiction over those defendants, and it will dismiss them from this case.
III. Plaintiff has failed to effect proper service on any of the named federal defendants in the manner required by the Federal Rules or by state law.
Plaintiff states that he is suing each of the named federal defendants in his or her individual capacity for acts or omissions occurring in connection with the performance of their official duties. 2d Am. Compl. ¶ 21. Service upon the United States Attorney General and the United States Attorney “does not obviate the requirement of personal service . . . where the action is in substance against a federal official in his individual capacity.” Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C. 1978). Rather, in such an action, the defendants “must be served as individuals, pursuant to Rule 4(e).” Simpkins, 108 F.3d at 369; see also Fed. R. Civ. P. 4(i)(3).
Rule 4(e) provides that service may be effected on an individual by one of the following methods:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and ...