United States District Court, District of Columbia
A. HOWELL United States District Judge.
matter is before the Court on the defendants' Motion to
Dismiss, ECF No. 5. For the reasons discussed below, the
motion will be granted.
times relevant to the complaint, the plaintiff was
incarcerated at the Administrative Maximum United States
Penitentiary in Florence, Colorado (“ADX
Florence”). See Defs.' Mem. of P. & A.
in Support of' Mot. to Dismiss (“Defs.'
Mem.”), Decl. of Patrick Kissell (“Kissell
Decl.”) ¶ 2. Defendant Charles Porco, the Unit
Manager, Compl., ECF No. 1-1 at 2, “was acting within
the scope of his employment as an employee of the United
States at the time of the . . . incidents” alleged in
the complaint, Certification, ECF No. 1-2.
to the plaintiff, on May 26, 2016, Porco denied his request
for “the privilege of using computers to write, send
and receive E-mails.” Compl. at 2. The plaintiff
brought this action against the Federal Bureau of Prisons
(“BOP”) and Porco “under the doctrine of
respondants [sic] superior” for their alleged
“abuse of process” and violation of rights
protected under the Fourteenth Amendment to the United States
Constitution. Id. at 1. He demands judgment in the
sum of $100, 000. 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] or if a response is not
forthcoming within the time allotted for reply.”
Id. ¶ 5.
BOP's declarant states that, of the 25 formal complaints
and/or appeals submitted by the plaintiff between May 26,
2016 and December 1, 2016, id. ¶ 7, none
pertained to the events described in the complaint,
id. ¶ 9. Further, he states, only two of the
plaintiff's administrative remedy requests reached the
Office of the General Counsel, and “neither involves
the allegations set forth in the [c]omplaint in this
action.” 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.
declarant “also reviewed the BOP's Administrative
Tort Claims database.” Id. ¶ 11. He found
that the “[p]laintiff did not submit any administrative
tort claims with the BOP related to the claims alleged in
this litigation.” Id.
plaintiff filed this action in the Superior Court of the
District of Columbia on June 21, 2016. The defendants removed
the case on October 19, 2016, and filed their motion to
dismiss on December 19, 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
January 20, 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
defendants' motion as conceded. The United States Court
of Appeals for the District of Columbia Circuit recently has
raised concerns 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). Notwithstanding 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 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'
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 claims. Relevant to this
case is the exhaustion requirement:
An action shall not be instituted upo1n 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 ...