United States District Court, District of Columbia
A. HOWELL Chief Judge
matter is before the Court on the Defendants' Motions to
Dismiss or, Alternatively, for Summary Judgment, ECF No. 6,
and for Extension of Time to File Reply, ECF No. 9. For the
reasons discussed below, the Court will grant the former and
deny the latter as moot.
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. (“Defs.' Mem.”),
Kissell Decl. ¶ 2. The plaintiff, who has “a heart
condition known as P.V.C., ” Compl. at 1, began to
experience “very bad and painful chest pains” on
February 27, 2016[, ]” id. at 2.
“Nurse Olguin, R.N., was the medical staff member on
duty. Id. Although Olguin had been informed of the
plaintiff's condition, she allegedly “never
came” to assist him, and he “waited (in pain) for
over an hour.” Id. According to the plaintiff,
“Nurse Olguin, R.N. was required to at least check
[his] vital signs, but she never did, ” even though the
plaintiff “could have died.” Id.
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].” Id.
¶ 5. The BOP's declarant states that, of the 57
formal administrative remedy requests submitted by the
plaintiff between February 27, 2016 and October 1, 2016,
id. ¶ 7, four reached the Office of General
Counsel, id. ¶ 8. “[N]one of these
requests relates to the claims alleged in this litigation,
” however. Id. ¶ 9. “In fact, none
. . . relates to an incident occurring on February 27,
2016.” Id. Based on his review, the declarant
avers that the “[p]laintiff did not exhaust his
remedies as related to complaints against the defendants
raised in the present case through BOP's Administrative
Remedy Program.” Id. ¶ 10.
March 10, 2016, the plaintiff filed an administrative tort
claim “with BOP . . . alleging that he was injured as a
result of tortious conduct on February 27, 2016.”
Id. ¶ 11; see generally id., Ex.
(Claim for Damage, Injury, or Death). The BOP initiated two
separate investigations, the first (Claim No. 2016-03356) on
March 21, 2016, and the second (Claim No. 2016-03653) on
April 11, 2016. Id. ¶¶ 13-15. The BOP
denied Claim No. 2016-03653 on June 22, 2016, and Claim No.
2016-03356 on September 21, 2016. Id. ¶¶
13, 2016, in the Superior Court of the District of Columbia,
the plaintiff filed a civil action against the BOP and Olguin
“for medical negligence” demanding monetary
damages of $75, 000. Compl. at 1. The defendants removed the
case on September 21, 2016, and filed their motion to dismiss
or for summary judgment on November 21, 2016. On November 22,
2016, the Court issued an Amended 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 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
defendants' 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). In light of these recent
rulings, the Court briefly addresses the merits of the
plaintiff's demand for monetary damages arises from the
defendants' alleged breach of duty to provide medical
treatment on February 2, 2016, and the unspecified harm he
allegedly suffered as a result. Based on the representation
that “Cathlin Olguin was an employee of the Government
and was acting within the scope of her employment for the
[BOP] at the time of the allegations stated in
Plaintiff's Complaint, ” Certification, ECF No.
1-2, the Court treats the plaintiff's negligence 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 case is the
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or personal injury or death 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,
unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have
been finally denied by the agency in writing and sent by
certified or registered mail. The failure of an agency to
make final disposition of a claim within six months after
it is filed shall, at the option of the claimant any
time thereafter, be deemed a final denial of the claim for
purposes of this section.
28 U.S.C. § 2675(a) (emphasis added). “The FTCA
bars claimants from bringing suit in federal court until they
have exhausted their administrative remedies, ” and the
plaintiff's “fail[ure] to heed that clear statutory
command” warrants ...