United States District Court, District of Columbia
William J.R. Embrey, Plaintiff,
Director of Bureau of Prisons et al., Defendants.
matter is before the Court on its initial review of plaintiff
spro se complaint and application for leave to
proceed in forma pauperis. The Court will grant the
application and dismiss the complaint for lack of subject
matter jurisdiction. See Fed. R. Civ. P. 12(h)(3)
(requiring the court to dismiss an action "at any
time" it determines that subject matter jurisdiction is
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute," and
it is "presumed that a cause-lies outside this limited
jurisdiction." Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (citations omitted). Under
the doctrine of sovereign immunity, the United States may be
sued only upon consent, which must be clear and unequivocal.
United States v. Mitchell, 445 U.S. 535, 538 (1980)
(citation omitted). A waiver of sovereign immunity "must
be unequivocally expressed in statutory text, and [it cannot]
be implied." Lane v. Pena, 518 U.S. 187, 192
(1996) (citations omitted). A party seeking relief in the
district court must at least plead facts that bring the suit
within the court's jurisdiction. See Fed. R.
Civ. P. 8(a). Failure to plead such facts warrants dismissal
of the action.
is a former prisoner residing in Fargo, North Dakota. He sues
the Director of the Bureau of Prisons (BOP), the Attorney
General of the United States, the United States, and Unknown
Persons employed by BOP. Case Caption; Compl. ¶ 11.
Plaintiff alleges that the defendants "failed or refused
to properly credit [him] with 508 days of detention-jail time
... served prior to his April 24, 2000 federal
sentencing." Compl. at 2. He alleges that the BOP
Director and the Attorney General "failed to adequately
train and supervise" the unknown employees, id.
¶ 20, and their negligence "set into motion a chain
of events that led" to his unlawful imprisonment,
id. ¶ 25. As a result, plaintiff was
"unlawfully" imprisoned beyond "his maximum
sentence," in violation of the Constitution and federal
laws. Compl. at 2. Plaintiff seeks "punitive damages in
the amount of two million dollars" and "$2000.00 a
day for each day of his 508 days of suffering unlawful
imprisonment." Id. ¶¶ 4-5.
complaint against BOP and the Attorney General is essentially
against the United States. The Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80,
provides a limited waiver of the sovereign's immunity for
money damages "under circumstances where the United
States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or
omission occurred." Id., § 1346(b)(1). The
United States has not consented to be sued for constitutional
violations. Fed. Deposit Ins. Corp. v. Meyer, 510
U.S. 471, 478 (1994). To the extent the complaint presents a
negligence claim, moreover, jurisdiction is lacking because
there is no indication that plaintiff has exhausted his
administrative remedies under the FTCA by presenting a claim
"to the appropriate Federal agency" and obtaining a
final written denial or allowing six months to pass without a
final disposition. 28 U.S.C. § 2675(a). In this circuit,
the FTCA's presentment requirement is
"jurisdictional." Simpkins v. District of
Columbia Gov't, 108 F.3d 366, 371 (D.C. Cir. 2007);
see Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445
(D.C. Cir. 2005) (per curiam) (affirming the district
court's dismissal of unexhausted FTCA claim "for
lack of subject matter jurisdiction"). Accordingly, this
case will be dismissed. A separate order accompanies this
 Plaintiff invokes Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), as the basis of subject matter jurisdiction.
Compl. at 2. Bivens authorizes a private cause of
action against federal officials for violating certain
constitutional rights. In a Bivens lawsuit, "a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has
violated the Constitution," Ashcroft v. Iqbal,556 U.S. 662, 676 (2009), which typically is not sustainable
against the high-level officials plaintiff has named.
Regardless, any such claim is "not cognizable"
absent a showing that the challenged detention has been
invalidated by way of a writ of habeas corpus or some other
"prior [approved] proceeding." Harris v.
Fulwood, 611 Fed. App'x. 1, 2 (D.C. Cir. 2015) (per