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Chandler v. Federal Bureau of Prisons

United States District Court, District of Columbia

April 17, 2017

FEDERAL BUREAU OF PRISONS, et al., Defendants.


          BERYL A. HOWELL Chief Judge.

         This matter is before the Court on Defendants' Motion to Dismiss or, Alternatively, for Summary Judgment, ECF No. 5. For the reasons discussed below, the Court will grant the motion because the plaintiff failed to exhaust his administrative remedies prior to filing his complaint.

         I. BACKGROUND

         At all times relevant to the Complaint, the plaintiff was in the custody of the Federal Bureau of Prisons (“BOP”) and was incarcerated at the Administrative Maximum United States Penitentiary in Florence, Colorado (“ADX Florence”). See Mem. of P. & A. in Support of Defs.' Mot. to Dismiss or, Alternatively, for Summ. J. (“Defs.' Mem.”), Decl. of Patrick Kissell (“Kissell Decl.”) ¶ 2.

         The plaintiff submitted three requests to a female staff member (“cop outs”), see Defs.' Mem., Ex. 5 (requests dated May 6, 2016, May 12, 2016, and May 30, 2016), which prompted defendant D. Bilbrey to file an incident report charging the plaintiff with a disciplinary offense, stalking another person (Prohibited Act Code 225):

[Bilbrey] received cop outs addressed to Ms. S[.] Becker-Gallegos, [t]he [Disciplinary Hearing Officer]. While monitoring these cop outs [the plaintiff] authored he writes: Upon my release and return to D.C. I respectfully request that you allow me to contact you. For the purpose of getting acquainted on a platonic level. Second cop out states: Ms. Becker I want you to know that you are my buddy my pal my friend. It will be that way until the end and wherever you go[, ] I want you to know that your [sic] my buddy may pal my friend. Third copout states: I love you with all my heart and request that you marry me. Love Always Ray.

Defs.' Mem., Ex. 6 (Incident Report dated June 6, 2016).

         The 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 plaintiff submitted an administrative remedy request challenging the Incident Report on or about June 27, 2016, and the Warden of ADX Florence responded on July 18, 2016. Kissell Decl. ¶ 7. Next, the plaintiff filed an appeal with the BOP's North Central Regional Office which responded on August 19, 2016. Id. ¶ 8. Finally, the plaintiff filed an appeal with the Office of General Counsel, and its response was due on November 18, 2016. Id. ¶ 9. Although the plaintiff has “exhausted his remedies as related to complaints against the defendants raised in the present case through the BOP's Administrative Remedy Program[, ]” id. ¶ 10, he “did not submit any administrative tort claims with the BOP related to the claims alleged in this litigation, ” id. ¶ 11.

         The plaintiff filed a civil action in the Superior Court of the District of Columbia on July 10, 2016. According to the plaintiff, “a cop-out is used to make a written request to a staff member, ” Compl., ECF No. 1-1 at 1, and “[a]ny type of request can be made with the form, ” id. at 2. The plaintiff appears to assert that he has been punished for having exercised his right to freedom of speech. He claims that Bilbrey “is factually guilty of Abuse of Process, ” and “has maliciously interfer[]ed with [his] Freedom of Speech.” Id. at 2. The plaintiff demands judgment in his favor and an award of $100, 000 from the BOP and from Bilbrey, id. at 1, whom the plaintiff sues in his individual capacity, see Pl.'s Mem. of Facts, P. & A., ECF No. 7 at 2 (page number designated by the plaintiff).


         A. Federal Tort Claims Act

         The defendants removed this action on October 20, 2016, and filed their motion on January 5, 2017. Among the exhibits to their motion is a statement certifying that “Defendant Dale Bilbrey 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. 5-3. The plaintiff's demand for monetary damages arises from action taken by Bilbrey within the scope of his federal employment, and the Court treats the claim as one under the Federal Tort Claims Act (“FTCA”) against the United States directly. See 28 U.S.C. § 2679(b)(1), (d)(1).

         “It 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. 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. The failure of an agency to make final disposition of a claim within six months ...

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