United States District Court, District of Columbia
A. HOWELL Chief Judge
matter is before the Court on the Defendant's Motions to
Dismiss or, Alternatively, for Summary Judgment, ECF No. 5,
and for Extension of Time to File Reply, ECF No. 7. For the
reasons discussed below, the Court will grant the former and
deny the latter as moot.
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., ECF No.
1-1 at 1. The plaintiff has “been diagnosed with over
five mental health conditions” for which he received
treatment from a psychologist. Id. Dr. Kimbel
provided counseling while the plaintiff was housed in the
Special Housing Unit. Id. On or about April 26,
2016, the plaintiff was returned to the general population
and housed in the Eco Unit. Id. at 2. After having a
single counseling session on May 17, 2016 with Dr. Mann, the
psychologist assigned to Eco Unit, the plaintiff “left
with a very positive outlook on life and positive plans for
the future.” Id. He compared this session to
those with Dr. Kimbel, commenting that Dr. Kimbel
“keeps [him] focused on being denied and
to the plaintiff, “Dr. Kimbel met with Dr. Mann and
instructed her not to see [him] any more for
counseling.” Id. The plaintiff deemed this
action “malicious interference” and the
“denial of mental health treatment.” Id.
In addition to an award of $100, 000, id. at 1, the
plaintiff demands a court order requiring that the plaintiff
receive psychotherapy from Dr. Mann, id. at 3.
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
Def.'s Mot. to Dismiss or, Alternatively, for Summ. J.,
ECF No. 5-1 (“Def.'s 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.
defendant's declarant states that, of the 26 formal
requests submitted by the plaintiff between May 19, 2016 and
November 1, 2016, id. ¶ 7, “four of these
requests related to the claims alleged in this litigation,
” id. ¶ 9. None of these four requests
made its way to the Office of General Counsel, however.
Id. 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.
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 Def.'s Mem., Ex. 1. The BOP denied the
claim on August 18, 2016, Kissell Decl. ¶ 13;
see Def.'s Mem., Ex. 2.
plaintiff filed this action in the Superior Court of the
District of Columbia on June 13, 2016. The defendant removed
the case on September 21, 2016 and filed the motion to
dismiss or for summary judgment on November 21, 2016. On
November 22, 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
defendant's 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 address.
these circumstances, the Court ordinarily would grant the
defendant's motion as conceded. The United States Court
of Appeals for the District of Columbia Circuit recently has
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). 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 Dr.
Kimbel's alleged failure to provide mental health
treatment and the harm that resulted. Based on the
representation that “[d]efendant 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, the Court treats the claim as one brought under
the Federal Tort Claims Act (“FTCA”) 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). Under the FTCA, 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).
limitations under and exceptions to the FTCA doom the
plaintiff's claim. Relevant to this ...