United States District Court, District of Columbia
A. HOWELL Chief Judge.
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.
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.
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).
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.
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 interfered 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
Federal Tort Claims Act
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. §
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 ...