United States District Court, District of Columbia
A. HOWELL Chief 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 in the
custody of the Federal Bureau of Prisons (“BOP”)
and incarcerated at the Administrative Maximum United States
Penitentiary in Florence, Colorado. Defs.' Mem. of P.
& A. in Support of Mot. to Dismiss (“Defs.'
Mem.”), Decl. of Patrick Kissell (“Kissell
Decl.”) ¶ 2. On June 9, 2016, the plaintiff
“attempted to mail a civil claim” to the Superior
Court of the District of Columbia. Compl. at 2.
Notwithstanding the plaintiff's indigence, his counselor,
defendant M. Wyche, refused to affix the necessary postage
for mailing the document to the Superior Court. Id.
The plaintiff considered this action a violation of his
“First Amendment right to access . . . the
court.” Id. at 1. For this alleged abuse of
process, the plaintiff has demanded judgment in the sum of
$175, 000 from both defendant Wyche and the BOP. 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. ; see Id. ¶ 5. The
“process is not complete until the Office of General
Counsel replies, on the merits, to the inmate's
[request].” Id. ¶ 5 (citing 28 C.F.R.
§ 542.18). The BOP's declarant states that, of the
26 formal administrative remedy requests submitted by the
plaintiff between June 9, 2016 and December 20, 2016,
id. ¶ 7, two advanced to the Office of General
Counsel, id. ¶ 8. Neither “relate[s] to
the claims alleged in this litigation, ” however.
Id. ¶ 9. The declarant avers that the
“[p]laintiff did not exhaust his remedies as related to
complaints against the defendants raised in the present case
through BOP's Administrative Remedy Program.”
Id. ¶ 10.
21, 2016, the plaintiff “submitted a ‘Federal
Tort Claim' with BOP . . . alleging that BOP had failed
to provide postage for a civil complaint on June 9,
2016.” Id. ¶ 11; see generally
Defs.' Mem., Ex. 1 (Claim for Damage, Injury, or Death).
BOP acknowledged receipt of the tort claim and on July 18,
2016, notified the plaintiff “that it would investigate
the claim under the procedures for Federal Tort Claim Act
complaints.” Id. ¶ 12. The plaintiff
withdrew his claim on July 21, 2016, id. ¶ 13,
because the matter had been resolved, see Defs.'
Mem., Ex. 1 (Memorandum dated July 21, 2016). Thereafter, the
BOP closed the claim. Defs.' Mem., Ex. 1 (Letter to the
plaintiff from Richard W. Schott, Regional Counsel, dated
July 26, 2016).
plaintiff filed his complaint in the Superior Court of the
District of Columbia on July 25, 2016, and the defendants
removed the action on October 28, 2016. See Notice
of Removal, ECF No. 1. Accompanying their notice was a
statement which certifies that “Mr. M. Wyche 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. The
defendants filed a motion to dismiss or for summary judgment
on January 6, 2017.
January 9, 2017, 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 February 17, 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
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 the
defendants' arguments for dismissal on the ground that
the plaintiff has not exhausted his administrative
Federal Tort Claims Act
plaintiff's demand for monetary damages arises from
action taken by Mr. Wyche within the scope of his federal
employment. The Court treats the plaintiff's 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).
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 ...