United States District Court, District of Columbia
A. HOWELL Chief Judge.
matter is before the Court on Defendants' Motion to
Dismiss or, Alternatively, for Summary Judgment, ECF No. 6.
For the reasons stated below, the motion is granted.
times relevant to the complaint, the plaintiff has been in
the custody of the Federal Bureau of Prisons
(“BOP”) and designated to the Administrative
Maximum United States Penitentiary in Florence, Colorado
(“ADX Florence”). See Compl. at 1.
According to the plaintiff, in November 2015, he
“started experiencing severe depression and O.C.D.
relaps[e].” Id. at 2. Two psychologists were
assigned to treat inmates in the Special Housing Unit where
the plaintiff was housed, one of whom, Dr. Kimbel, treated
the plaintiff from November 2016 through May 2016.
Id. After the plaintiff was returned to the general
population, he sought counseling from Dr. Mann, the
psychologist assigned to the Eco Unit where the plaintiff was
housed. Id. Even though the plaintiff received
“very refreshing counseling” with Dr. Mann, Dr.
Kimbel allegedly ensured that the plaintiff would not see Dr.
Mann again. Id. at 3. The plaintiff deems Dr.
Kimbel's actions “malicious interference” for
which he demands judgment against the BOP and Dr. Kimbel in
the sum of $50, 000. Id. at 1.
BOP's Administrative Remedy Program is the means by which
inmates may “seek formal review of any aspect of their
confinement.” Mem. of P. & A. in Support of
Defs.' Mot. to Dismiss or, Alternatively, for Summ. J.
(“Defs.' Mem.”), 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.
BOP's declarant states that, of the 26 formal requests
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. Further,
the declarant explains that only two of the plaintiff's
formal administrative remedy requests reached the Office of
General Counsel, id. ¶ 8, neither of which
pertained to the events described in the complaint. 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 21, 2016, and the defendants removed the
case on September 21, 2016.
November 21, 2016, the defendants filed the instant
dispositive motion. On November 22, 2016, the Court issued
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 21, 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
the plaintiff filed a motion for leave to amend his
complaint, ECF No. 9, on January 3, 2017. The factual
allegations set forth in the proposed amended complaint stray
far from the subject matter of the initial complaint,
however. If the Court were to allow the amendment, the
plaintiff “would radically alter the scope and nature
of the case” because the new factual allegations
“bear no more than a tangential relationship to the
original action.” Mississippi Ass'n of
Cooperatives v. Farmers Home Admin., 139 F.R.D. 542, 544
(D.D.C. 1991). Moreover, in light of the plaintiff's
prolific litigation history, see, e.g., Chandler v.
James, 783 F.Supp.2d 33, 36 (D.D.C. 2011) (noting that
the plaintiff's “legal complaints have been so
numerous and so lacking in merit that he is now barred,
except in extraordinary circumstances, from filing new
lawsuits while in prison without first paying the full amount
of any administrative filing fee”), including his
filing in the last two years alone of approximately sixteen
separate cases, the Court will not countenance yet another
attempt to “circumvent the litigation pre-conditions
imposed on him by this Court, ” Chandler v. Fed.
Bureau of Prisons, No. CV 16-1491, 2017 WL 27930, at *2
(D.D.C. Jan. 3, 2017). Consequently, the Court denies the
plaintiff's motion to amend the complaint.
as here, a plaintiff has not heeded the Court's warnings,
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
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 for summary judgment, see Winston
& Strawn, LLP v. McLean, 843 F.3d 503, 507-08 (D.C.
Cir. 2016). In light of these 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
“defendant Neal Kimbel was an employee of the
Government and was acting within the scope of his employment
for the [BOP] at the time of the allegations stated in
Plaintiff's Complaint.” Certification, ECF No. 1-2.
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.
The Court proceeds as if the plaintiff had brought this
action against the United States directly.
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
the plaintiff's claim. Relevant to this ...