United States District Court, District of Columbia
A. HOWELL Chief Judge.
matter is before the Court on the defendants' Motion to
Dismiss, ECF No. 4. For the reasons discussed below, the
Court grants the motion.
times relevant to the Complaint, the plaintiff was in the
custody of the Federal Bureau of Prisons (“BOP”)
and designated to the United States Penitentiary in
Lewisburg, Pennsylvania (“USP Lewisburg”). The
plaintiff claimed to have proposed marriage to Susan Stover,
his Unit Manager, by submitting a “cop-out, ” or
Inmate Request to Staff, on January 29, 2014. See
Compl., ECF No. 1-1, at 1-2. Ms. Stover responded by filing
an incident report charging the plaintiff with a disciplinary
offense: Code 206, Making a Sexual Proposal. Id. at
2. A disciplinary hearing took place on February 12, 2014
over which Angelo Jordan presided. Id.
“Defendant Jordan . . . found [the plaintiff] guilty of
the charge, ” id., and imposed sanctions,
see id., Ex. B (Disciplinary Hearing Officer Report)
20, 2016, in the Superior Court of the District of Columbia,
the plaintiff filed a civil action against the BOP, Stover
and Jordan “for Libel and Slander, False Accusation and
Defamation of Character. Plus, Abuse of Process.”
Compl. at 1. He demands a judgment against each defendant in
the sum of $100, 000. Id.
search of BOP's computerized tort claim database revealed
that, between January 30, 2014 and July 20, 2016, the
plaintiff had submitted 23 claims, two of which pertained to
the events alleged in the complaint. Defs.' Mem. of P.
& A. in Support of Mot. to Dismiss (“Defs.'
Mem.”), Decl. of E. Odell (“Odell Decl.”)
¶¶ 3-5. The first, dated July 15, 2014, “made
allegations of abuse of process and false accusation against
Defendant Susan Stover.” Odell Decl. ¶ 6; see
id., Attach. B. BOP denied the claim
(TRT-NER-2015-01518) on February 6, 2015. Id. ¶
7; see id., Attach. D. The second, dated March 19,
2015, alleged “abuse of process against Defendant Susan
Stover.” Id. ¶ 8; see id.
Attach. D. BOP denied the claim (TRT-NER-02890) on September
15, 2015. Id. ¶ 9; see id., Attach. E.
defendants removed the action on October 19, 2016.
Accompanying their removal notice is a statement which
certifies that “Susan Stover and Mr. A. Jordan were
acting within the scope of their employment as employees of
the United States at the time of the . . . incidents”
alleged in the Complaint. Certification, ECF No. 1-2. The
defendants filed a motion to dismiss or for summary judgment
on December 19, 2016.
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, however, about the application of Local
Civil Rule 7(b) to grant an unopposed motion 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). In light
of this ruling, the Court briefly addresses the merits of two
of the defendants' arguments for dismissal.
The Plaintiff Failed to Exhaust Administrative
plaintiff's demand for monetary damages arises from acts
taken by Stover and Jordan within the scope of their
employment as employees of the United States. The Court
treats the plaintiff's defamation and abuse of process
claims under the Federal Tort Claims Act (“FTCA”)
against the United States directly. See 28 U.S.C.
§ 2679(b)(1), (d)(1).
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). Limitations under and exceptions to the
FTCA doom the plaintiff's claims.
having presented his claim to the BOP, see 28 U.S.C.
§ 2675(a), the plaintiff was required to file his civil
case within six months of the denial of each claim. See
Mittleman v. United States, 104 F.3d 410, 413 (D.C. Cir.
1997) (citing 20 U.S.C. §§ 2401(b), 2675(a)). The
BOP denied the plaintiff's first tort claim on February
6, 2015, and the second on September 15, 2015. The six-month
period within which the plaintiff should ...