United States District Court, District of Columbia
A. HOWELL Chief Judge
matter is before the Court on Defendant Federal Bureau of
Prison's Motion to Dismiss, ECF No. 14. On December 5,
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 January 6, 2017, 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 an 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). Despite acknowledging the
value of Local Civil Rule 7(b) as an important
“docket-management tool that facilitates efficient and
effective resolution of motions, ” id. at 480
(quoting Fox v. Am. Airlines, Inc., 389 F.3d 1291,
1294 (D.C. Cir. 2004) (additional citation omitted)), the
D.C. Circuit has opined that the local rule “stands in
tension with . . . Rule 12(b)(6), ” id. at
481. Accordingly, the Court briefly addresses the
plaintiff's factual allegations and the defendants'
plaintiff alleged that employees of the Federal Bureau of
Prisons (“BOP”) have misappropriated funds sent
by his father and deposited into his prison trust fund
account. See generally Compl. at 1-2. “At no
time did [the plaintiff] ever give his permission for his
money to be used or taken for any other purpose other than
purchasing item[s] . . . from the prison commissary.”
Id. at 2. Apparently BOP staff have deducted funds
from the account “to pay for fines/disciplinary
sanctions, ” and the plaintiff deems these actions
“malicious interference and misappropriation of
funds.” Id. The plaintiff has demanded damages
of $50, 000 and the return of all funds taken by defendant.
reasonably construes the complaint as one against a federal
government agency under the Federal Tort Claims Act
(“FTCA”), which allows a claimant to file a civil
action 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). This is a waiver
of the federal government's sovereign immunity, see
United States v. Mitchell, 445 U.S. 535, 538 (1980), and
“the terms of [the United States'] consent to be
sued in any court define that court's jurisdiction to
entertain the suit, ” id. (quoting United
States v. Sherwood, 312 U.S. 584, 586 (1941)).
limitations under and exceptions to the FTCA require
dismissal of the plaintiff's claim. Relevant to this case
is the exhaustion requirement:
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.
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 a
claimant's “fail[ure] to heed that clear statutory
command” warrants dismissal of his claim. McNeil v.
United States, 508 U.S. 106, 113 (1993). Here, the
plaintiff does not allege that he submitted a claim to the
BOP before filing this action, and his failure to do so
deprives this Court of jurisdiction over his claim.
relevant to this case is a provision of the FTCA that
expressly excludes a claim “arising out of . . .
misrepresentation, deceit or interference with contractual
rights.” 28 U.S.C. § 2680(h). The defendant
argues, and the Court concurs, that the plaintiff's
allegations of “malicious interference” and
“misappropriation” of funds are barred under
§ 2680(h). See, e.g., Budik v. Ashley, No.
12CV1949, 2014 WL 1423293, at *5 (D.D.C. Apr. 14, 2014).
Court will grant the defendant's motion to dismiss
because the plaintiff neither exhausted his administrative
remedies under the FTCA prior to filing this lawsuit, nor
raised a tort claim cognizable under the FTCA. An Order is
 The defendant also moves to dismiss
under Rule 12(b)(5) on the ground that the plaintiff failed
to effect proper service of process. See Def.'s
Mem. at 5-6. The plaintiff is proceeding pro se and
the Superior Court of the District of Columbia granted him
leave to proceed in forma pauperis prior to removal
of the case. Since the Clerk of Court is responsible for
issuing summonses and effecting service of process, under 28
U.S.C. § 1915(d)), on behalf of a pro se party