United States District Court, District of Columbia
A. HOWELL United States District Judge
matter is before the Court on the defendants' Motion to
Dismiss or, in the Alternative, for Summary Judgment, ECF No.
7. For the reasons discussed below, the Court will grant the
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 (“ADX
Florence”). See Mem. of P. & A. in Support
of Defs.' Mot. to Dismiss or, Alternatively, for Summ. J.
(“Defs.' Mem.”), Kissell Decl. ¶ 2. The
plaintiff alleged that he has been “diagnosed by the
[BOP] as having eight (8) different psychosises [sic]”
yet Dr. Mann, the psychologist assigned to his housing unit,
“has not provided [him] with therapy[.]” Compl.
at 2. For this alleged “abuse of process” and
violation of rights protected under the Eighth Amendment to
the United States Constitution, the plaintiff demanded
damages of $100, 000 each from the BOP and from Dr. Mann.
Id. at 1.
BOP's Administrative Remedy Program is the means by which
inmates may “seek formal review of any aspect of their
confinement.” Kissell 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. The “process is not
complete until the Office of General Counsel replies, on the
merits, to the inmate's [request] or if a response is not
forthcoming within the time allotted for reply.”
Id. ¶ 5. The BOP's declarant states that,
of the 26 formal complaints submitted by the plaintiff
between May 19, 2016 and November 1, 2016, id.
¶ 7, four pertained to the events described in the
complaint, id. ¶ 9. None of these four reached
the Office of the General Counsel, however. See id.
¶¶ 8-9. During the relevant time period, only two
of the plaintiff's administrative remedy requests reached
the Office of the General Counsel, neither of which
“involves the allegations set forth in the
[c]omplaint.” Id. ¶ 8. Based on his
review of the plaintiff's requests, the declarant
concludes that the plaintiff “did not exhaust his
remedies as related to complaints against the defendants
raised in the present case through the BOP's
Administrative Remedy Program.” Id. ¶ 10.
20, 2016, the plaintiff filed an administrative tort claim
“alleging that BOP had failed to provide proper mental
health treatment since March 2016.” Id. ¶
11; see Defs.' Mem., Ex. 1. The BOP acknowledged
receipt of the request on July 18, 2016, Kissell Decl. ¶
12, and it denied the claim on August 18, 2016, id.
¶ 13; see Defs.' Mem., Ex. 2. The plaintiff
filed this action in the Superior Court of the District of
Columbia on June 16, 2016, and the defendants removed the
case on September 26, 2016.
defendants filed their motion to dismiss or, alternatively,
for summary judgment, on November 17, 2016. On that same
date, 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 19, 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.
plaintiff's demand for monetary damages arises from the
defendants' alleged failure to provide mental health
treatment and the harm that resulted. The Court treats the
claim as one brought under the Federal Tort Claims Act
(“FTCA”) and accepts the representation that
was acting within the scope of her employment as an employee
of the United States at the time of the alleged
incidents.” Certification, ECF No. 7-1. Further, the
Court liberally construes the plaintiff's pro se
pleading, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), and overlooks the plaintiff's failure to name the
United States as a party to this action, see, e.g., Hui
v. Castaneda, 559 U.S. 799, 810 (2010).
is axiomatic that the United States may not be sued without
its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v.
Mitchell, 463 U.S. 206, 212 (1983). Under the doctrine
of sovereign immunity, the United States is immune from suit
unless Congress expressly has waived the defense of sovereign
immunity by statute. See id. The FTCA operates as a
limited waiver of sovereign immunity, rendering the United
States amenable to suit for certain, but not all, tort
claims. See, e.g., Richards v. United States, 369
U.S. 1, 6 (1962). Thus, a claimant may file suit against the
United States for claims of “personal injury . . .
caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of
his office or employment.” 28 U.S.C. § 1346(b).
are limitations under and exceptions to the FTCA which doom