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. 6.
For the reasons discussed below, the Court will grant the
March 2, 2015 to September 7, 2016, 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 (“ADX
Florence”). Mem. in Support of Defs.' Mot. to
Dismiss or, Alternatively, for Summ. J. (“Defs.'
Mem.”), Decl. of Patrick Kissell (“Kissell
Decl.”) ¶ 2. He since has been transferred to the
United States Medical Center for Federal Prisoners in
Springfield, Missouri. Kissell Decl. ¶ 2.
August 3, 2016, the plaintiff sent a “cop-out, ”
an Inmate Request to Staff, to a female staff member, Angel
Pursuant to my Institutional Files and my Case Man[ager, ] I
have an up-coming M.R.D. (Mandatory Release Date) in May of
2017. I think that you are a very interesting and appealing
young person. For the sole purpose of getting better
acquainted and establishing a line of purely platonic
communication, I respectfully request that you and I exchange
xCompl., ECF No. 1-1, Ex. A. Ms. Espinoza-Levi allegedly
responded by “falsely accus[ing] the plaintiff] of
harassment, stalking and taunting, ” Compl. at 2,
presumably by filing an incident report charging the
plaintiff with a disciplinary violation, see id. at
1-2. After all, the plaintiff remarked, a cop-out may be used
to make “any type of request” to staff.
Id. at 2. “All [he] did was follow policy,
BOP's Administrative Remedy Program is the means by which
inmates may “seek formal review of any aspect of their
confinement.” Kissell Decl. ¶ 4 (citing 28 C.F.R.
§ 542.10). 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 28 C.F.R. §§ 542.15, 542.18. 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.
BOP's declarant states that, of the 24 formal
administrative remedy requests or appeals submitted by the
plaintiff between August 3, 2016 and February 1, 2017,
id. ¶ 7, only one advanced to the Office of
General Counsel, id. ¶ 8. “This request
is an appeal of a remedy request dated June 25, 2016 that
precedes” the events set forth in the plaintiff's
complaint. Id. None of the plaintiff's other
requests for this time period “relate[s] to the claims
in this litigation alleged to have occurred in August
2016.” Id. ¶ 9. The declarant's
review of “the BOP's Administrative Tort Claims
database [reveals that the p]laintiff did not submit any
administrative tort claims with the BOP related to the claims
alleged in this litigation.” Id. ¶ 11.
September 8, 2016, the plaintiff filed a civil action in the
Superior Court of the District of Columbia against the BOP
and Ms. Espinoza-Levi “[f]or the torts of: (1) False
Accusation and (2) Abuse of Process.” Compl. at 1. He
demanded judgment in his favor and monetary damages of $100,
000. Id. The defendants removed the action on
January 4, 2017. See Notice of Removal, ECF No. 1.
Accompanying their notice was a statement certifying that
“Defendant Angel Espinoza-Levi was an employee of the
Government and was acting within the scope of her employment
for the [BOP] at the time of the allegations stated in
Plaintiff's Complaint.” Certification, ECF No. 1-2.
The defendants filed their motion to dismiss or for summary
judgment on February 17, 2017, and the plaintiff filed his
opposition, see Plaintiff's Rebuttal to the
Defendants' Motion for Summary Judgment and supporting
memorandum (collectively “Pl.'s Opp'n”),
ECF No. 10, on April 7, 2017.
defendants move to dismiss on two grounds: that the plaintiff
failed to exhaust his administrative remedies before filing
this action, and that venue in this district is improper.
See generally Defs.' Mem. at 4-8.
Exhaustion of ...