United States District Court, District of Columbia
A. HOWELL Chief Judge.
matter is before the Court on the Defendants' Motion to
Dismiss or, Alternatively, for Summary Judgment, ECF No. 13.
For the reasons discussed below, the motion will be
times relevant to the Complaint, the plaintiff was in the
custody of the Federal Bureau of Prisons (“BOP”)
and incarcerated at the Administrative Maximum United States
Penitentiary in Florence, Colorado. Defs.' Mem. of P.
& A. in Support of Defs.' Mot. to Dismiss or,
Alternatively, for Summ. J., Ellington Decl. ¶ 2.
to the plaintiff, on December 31, 2015, the defendants
Charles Porco, Unit Manager, and J. Osland, Case Manager,
came to his cell in order to conduct a unit disciplinary
hearing on two minor disciplinary infractions: lying to staff
and disobeying a direct order. Compl. at 2. “After the
hearing [, ] the [Unit Disciplinary Committee] chaired by
[defendant] Porco rendered . . . sanctions, ”
id., namely “26 days of mattress restriction,
” id. at 3. Thus, the plaintiff's mattress
was “confiscated each morning at sunrise and [was] to
be given back to [him] at sunset.” Id. On
January 13, 2016, although the plaintiff was to have received
his mattress by 6:30 p.m., he did not receive his mattress
“until after 8:45 p.m. well pass [sic] the time
plaintiff deems the sanction, which allegedly left him
“to sleep upon a cement slab without a mattress[, a]
cruel, unusual and inhumain [sic] punishment” in
violation of the Eighth Amendment to the United States
Constitution. Id. He demands $100, 000.00 from each
defendant and “an injunctive freeze . . . on each
defendant[']s personal property until [the plaintiff is]
paid in full.” Id. at 4.
“[p]laintiff submitted a ‘Federal Tort Claim'
with BOP on January 21, 2016, alleging that he was harmed by
his placement on mattress restriction on December 31,
2015.” Ellington Decl. ¶ 12. He claimed
“personal injury and abuse of process committed by
staff, ” alleging that, “[a]s a direct result of
not having a mattress to sleep on and having to lay on bare
concrete, [he] sustained joint stiffness in [his] left
shoulder and . . . left hip, ” causing him
“severe main.” Id., Ex. A (Federal Tort
Claim) at 2. BOP denied the claim on April 6, 2016.
Id. ¶ 14. Its “investigation . . . did
not reveal that [the plaintiff had] suffered any personal
injury as a result of the negligent acts or omissions of
[BOP] employees acting within the scope of their
employment.” Id., Ex. A (Letter to the
plaintiff from Richard W. Schott, Regional Counsel, North
Central Regional Office, BOP, dated April 6, 2016).
BOP's Administrative Remedy Program is a means by which
inmates may “seek formal review of any aspect of their
confinement.” Ellington Decl. ¶ 4. It “is
typically a four-tiered review process comprised of an
informal resolution process and then formal requests to the
Warden, the Regional Director, and the Office of the General
Counsel.” Id.; see id. ¶ 5. The
“process is not complete until the Office of General
Counsel replies, on the merits, to the inmate's
[request].” Id. ¶ 5. The BOP's
declarant states that, of the 77 formal administrative remedy
requests and/or appeals [the plaintiff submitted to] the
BOP” between December 31, 2015 and October 1, 2016,
id. ¶ 8, “none . . . relates to the
claims alleged in this litigation, ” or to any
“incident occurring on December 31, 2015, ”
id. ¶ 10. Thus, she concludes that the
plaintiff “did not exhaust his administrative remedies
as related to complaints against [the] defendants raised in
the present case through the BOP's Administrative Remedy
Program.” Id. ¶ 11.
March 8, 2016, in the Superior Court of the District of
Columbia, the plaintiff filed the instant civil action, which
defendants removed to this Court on July 20,
by pro se litigants are construed liberally.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
United States v. Arrington, 763 F.3d 17, 22 (D.C.
Cir. 2014) (noting ‘“obligation to construe pro
se filings liberally'” (quoting Toolasprashad
v. Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir.
2002)). Consequently, given the nature of the plaintiff's
factual allegations, the Court construes the plaintiff's
complaint as asserting claims under the Federal Tort Claims
Act (“FTCA”), see 28 U.S.C. §§
2671-2680, and the Civil Rights Act, SEE 42 U.S.C.
defendants filed their motion to dismiss or, alternatively,
for summary judgment on November 11, 2016. On November 14,
2016, the Court issued an Order which advised the plaintiff
of his obligations under the Federal Rules of Civil Procedure
and the local civil rules of this Court. See Neal v.
Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v.
Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988).
Specifically, the Court notified the plaintiff that, if he
failed to file an opposition or other response to the
defendants' motion by December 7, 2016, the Court would
treat their motion as conceded. See Local Civil Rule
7(b) (permitting court to “treat . . . as
conceded” a motion not met with a timely opposing
memorandum of points and authorities). To date, the plaintiff
has not filed an opposition to the motion, or requested more
time to file an opposition, or advised the Court of any
change of address.
these circumstances, the Court ordinarily would have granted
the defendants' motion as conceded. However, the United
States Court of Appeals for the District of Columbia Circuit
recently has raised concerns about the use of Local Civil
Rule 7(b) to grant an unopposed motions to dismiss, see
Cohen v. Bd. of Trs. of the Univ. of the District of
Columbia, 819 F.3d 476, 482 (D.C. Cir. 2016), and an
unopposed motion for summary judgment, see Winston &
Strawn, LLP v. McLean, No. 14-7197, __ F.3d __, __, 2016
WL 7174125, at *3 (D.C. Cir. Dec. 9, 2016). Despite
acknowledging the value of Local Civil Rule 7(b) as an
important “docket-management tool that facilitates
efficient and effective resolution of motions, ”
Cohen, 819 F.3d at 480 (quoting Fox v. Am.
Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004)
(additional citation omitted)), the rule “stands in
tension with . . . Rule 12(b)(6), ” id. at
481, and “cannot be squared with . . . Rule 56, ”
Winston & Strawn, 2016 WL 7174125, at *3.
Court were to grant the defendants' motion to dismiss as
conceded, it “effectively places the burden of
persuasion on the [plaintiff because, ] when he fails to
respond, he loses.” Cohen, 819 F.3d at 481.
Further, such treatment of a Rule 12(b)(6) motion
“risks circumventing the clear preference of the
Federal Rules to resolve disputes on their merits.”
Id. at 482. Similarly, if the Court were to grant
the defendants' motion for summary judgment as conceded,
it erroneously shifts the burden to the plaintiff when
“[t]he burden is always on [the defendants] to
demonstrate why summary judgment is warranted.”
Winston & Strawn, 2016 WL 7174125, at *1. The
Court “must always determine for itself whether ...