United States District Court, District of Columbia
A. HOWELL Chief Judge
16, 2016, the plaintiff filed a complaint in the Superior
Court of the District of Columbia against the United States
Parole Commission (the “Parole Commission”) and
its Chair alleging a violation of his constitutional right to
due process for their failure to give him a copy of “an
Action Sheet . . . stating the decision of the [Parole]
Commission” following a hearing on or about June 5,
2015. Compl., ECF No. 1-1, at 2. He demanded damages of $175,
000 and his immediate release from custody. See id.
The defendants removed this action on September 26, 2016, and
filed a Motion to Dismiss or, in the Alternative, for Summary
Judgment, ECF No. 10, on November 14, 2016.
November 15, 2016, the Court issued an Order advising 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 14, 2016, the Court would
treat the pending dispositive motion as conceded.
See D.D.C. 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
pending motion, or requested more time to file an opposition,
or advised the Court of any change of address.
these circumstances, the Court ordinarily would grant the
defendants' motion as conceded. The United States Court
of Appeals for the District of Columbia Circuit has recently
raised concerns, however, about the use of Local Civil Rule
7(b) to grant an unopposed motion 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. In light of the D.C.
Circuit's recent rulings, the Court briefly addresses the
merits of the defendants' arguments challenging the
outset, the plaintiff alleges that he had a parole hearing in
June 2015, where he “was seen by an [Parole Commission]
employee, ” who said the plaintiff would receive an
Action Sheet…stating the decision of the Commission
… within six (6) weeks.” Compl. at 1-2, ECF No.
1-1 at 5-6. Nevertheless, the plaintiff states that he has
received no Action Sheet “or any form of communication
from the U.S. Parole Commission, ” in the twelve
intervening months. Id. at 2. Contrary to the
plaintiff's allegation, the declarant for the Parole
Commission attests, under penalty of perjury, that the
plaintiff received “a statutory interim hearing”
on July 20, 2015, and that the decisions, dated August 17,
2015 and July 18, 2016, resulting from the hearing were sent
to the same Bureau of Prisons (“BOP”) facility
where the hearing was held. Defs.' Mot., Ex. 1, Decl. of
Paula Biderman (“Biderman Decl.”) ¶¶
aside whether a factual basis for the plaintiff's claim
exists, the defendants argue that, “[i]nsofar as [the
plaintiff] has sought damages for the alleged abuse of
process occasioned by delay in issuance of his parole
decision, his [tort] claims must be dismissed.” Mem. of
P. & A. in Support of Defs.' Mot. to Dismiss or, in
the Alternative, for Summ. J., ECF No. 10 (“Defs.'
Mem.”) at 6. The Court concurs. The plaintiff must
proceed against the United States under the Federal Tort
Claims Act, pursuant to which he was to present his claims to
the Commission prior to filing this lawsuit. See 28
U.S.C. § 2675(a). The complaint does not allege that the
plaintiff had exhausted his claims prior to filing his
complaint in the Superior Court. His failure to submit his
claims to the Commission, see Biderman Decl.
¶¶ 4-5, deprives this Court of jurisdiction,
see McNeil v. United States, 508 U.S. 106 (1993).
plaintiff's demand for his release from custody sounds in
habeas. See generally Preiser v. Rodriguez, 411 U.S.
475 (1973). The proper respondent in a habeas corpus action
is the plaintiff's custodian, Rumsfeld v.
Padilla, 542 U.S. 426, 434-35 (2004), and a
“district court may not entertain a habeas petition
involving present physical custody unless the respondent
custodian is within its territorial jurisdiction, ”
Stokes v. U.S. Parole Comm'n, 374 F.3d 1235,
1239 (D.C. Cir. 2004). The plaintiff currently is
incarcerated at the Federal Medical Center in Springfield,
Missouri. See Defs.' Mem. at 1. Because the
plaintiff neither names his custodian as a party in this
action nor demonstrates that the custodian is found in this
district, the habeas claim will be dismissed.
these reasons, the Court grants the defendants' motion.
An Order is issued separately.
 The United States of America is the
only proper defendant in a suit under the FTCA. See,
e.g., Hall v. Admin. Office of U.S. Courts, 496
F.Supp.2d 203, 206 (D.D.C. 2007). Even though this pro
se plaintiff has not named the United States as a party,
the Court overlooks this pleading defect and instead treats
the plaintiff's claims as if they had been brought