United States District Court, District of Columbia
KEITH D. JOHNSON, Plaintiff,
LOUIS MANZO, et al., Defendants.
MEMORANDUM OPINION AND ORDER
A. HOWELL CHIEF JUDGE.
Johnson, a D.C. prisoner proceeding pro se, filed
this “Malicious Prosecution” action against the
former United States Attorney for the District of Columbia
and an Assistant United States Attorney (“AUSA”),
alleging in a single paragraph that they allowed presentment
to the grand jury of perjured or inconsistent testimony by
grand jury witnesses, and seeking “$170, 000,
000.15” in damages. Compl. at 1, 3, ECF No. 2-1.
Following removal of this action from Superior Court,
see Notice of Removal, ECF No. 2, the government
filed the pending Motion to Dismiss, ECF No. 5, on grounds,
inter alia, that this Court lacks jurisdiction and
failure of the plaintiff to exhaust his administrative
the pro se plaintiff was advised of his obligations
under the Federal Rules of Civil Procedure and this
Court's Local Civil Rules to file an opposition, and of
the consequences of his failure to oppose the
government's motion, see Order at 1-2, ECF No. 6
(citing Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.
1992), and Fox v. Strickland, 837 F.2d 507, 509
(D.C. Cir. 1988)), the plaintiff responded with three brief
handwritten letters, approximately six pages in total,
attaching records from the criminal case against him in D.C.
Superior Court that resulted in his conviction, and documents
discussing several areas of the law. See Letter from
Pl. (undated) (“Pl.'s First Response”), ECF
No. 7 (sealed); Letter from Pl. (Dec. 2, 2018)
(“Pl.'s Second Response”), ECF No. 9
(sealed); Letter from Pl. (Dec. 14, 2018) (“Pl.'s
Third Response”), ECF No. 10. For the reasons discussed
below, the government's motion to dismiss is granted.
survive a motion to dismiss under Rule 12(b)(1) for lack of
subject matter jurisdiction, the plaintiff bears the burden
of demonstrating the Court's jurisdiction over the claims
asserted. Arpaio v. Obama, 797 F.3d 11, 19 (D.C.
Cir. 2015). Absent subject matter jurisdiction over a case,
the action must be dismissed. See Fed. R. Civ. P.
12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500,
506-07 (2006). If a defendant files a motion to dismiss on
multiple grounds, as the government has here,
“threshold questions, ” such as subject matter
jurisdiction, are examined first. Anderson v.
Carter, 802 F.3d 4, 8 (D.C. Cir. 2015).
government has certified that the plaintiff's claim of
“Malicious Prosecution” concerns actions by the
former United States Attorney and an AUSA that fall
“within the scope of their employment as employees of
the United States at the time of the alleged incident.”
Gov't's Certification at 1, ECF No. 2-2. Thus,
pursuant to the Westfall Act, 28 U.S.C. § 2679(d), the
United States “shall be substituted as the party
defendant.” See Wasserman v. Rodacker, 557
F.3d 635, 638-39 (D.C. Cir. 2009) (explaining that in a
“tort case against a federal employee” removed
from D.C. Superior Court, “the United States will be
substituted as the party defendant” upon the
government's certification, pursuant to 28 U.S.C. §
2679(d)). Following a Westfall Act substitution in a tort
action, “the suit is governed by the Federal Tort
Claims Act (‘FTCA').” Wuterich v.
Murtha, 562 F.3d 375, 380 (D.C. Cir.
2009). The FTCA permits an action against the
United States for certain torts only in certain
circumstances. See 28 U.S.C. § 2680(h).
government argues that jurisdiction over the plaintiff's
FTCA claim is lacking because (1) the government has not
waived its sovereign immunity; and (2) the plaintiff failed
to exhaust his administrative remedies. Each argument is
discussed in turn.
the government asserts that this action should be dismissed
because the plaintiff's malicious prosecution claim is
“barred by the doctrine of sovereign immunity.”
Gov't's Mem. Supp. Mot. Dismiss
(“Gov't's Mem.”) at 6, ECF No. 5-1. 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 FDIC v.
Meyer, 510 U.S. 471, 475 (1994). The FTCA is an example
of a waiver of the federal government's immunity, albeit
with limitations and exceptions. Most pertinent here, the
FTCA does not waive sovereign immunity for a “claim
arising out of . . . malicious prosecution, ” unless
that tort was committed by “investigative or law
enforcement officers of the United States Government, . .
.who [are] empowered by law to execute searches, to seize
evidence, or to make arrests for violations of Federal
law.” 28 U.S.C. § 2680(h); see also Moore v.
United States, 213 F.3d 705, 708 (D.C. Cir. 2000)
(“Under the FTCA . . . claims of malicious prosecution
. . . can only arise from the conduct of ‘investigative
or law enforcement officers of the United States
government.'” (citing 28 U.S.C. § 2680(h)).
the FTCA does not waive sovereign immunity for the
plaintiff's malicious prosecution claim, based on the
alleged conduct of the former United States Attorney and an
AUSA because neither are “investigative or law
enforcement officers” within the meaning of the
FTCA. See Moore, 213 F.3d at 710 (explaining that
“none” of a federal prosecutor's
“conduct can be the basis for a malicious prosecution
claim against the government” because a prosecutor is
not an “investigative or law enforcement officer”
under § 2680(h)); Hobley v. United States, No.
07-cv-253 (JDB), 2007 WL 1821157, at *3 (D.D.C. June 25,
2007) (“[F]ederal prosecutors, including assistant
United States attorneys, are generally not considered
‘investigative or law enforcement officers.'”
(citing, inter alia, Moore, 213 F.3d at
710)). Accordingly, the plaintiff's claim is not
cognizable under the FTCA and is barred by sovereign
the government correctly points out that even if the
plaintiff's claim were not barred by sovereign immunity,
the Complaint must be dismissed “for failure to exhaust
administrative remedies.” Gov't's Mem. at 4.
“In order to maintain an action under the FTCA,
plaintiff must have exhausted his administrative remedies by
‘first present[ing] the claim to the appropriate
Federal agency . . . .'” Mallory v. U.S.
Dep't of Housing & Urban Devel., No. 13-cv-0367
(CKK), 2014 WL 775258, at *1 (D.D.C. Feb. 26, 2014) (quoting
28 U.S.C. § 2675(a)).
case, the plaintiff never filed an administrative tort claim
claim with the U.S. Attorney's Office for the District of
Columbia. See Gov't's Mem., Ex. B, Decl. of
Daniel F. Van Horn, Chief, Civil Division, USAO D.C., ¶
5, ECF No. 5-2. The plaintiffs failure to exhaust creates a
jurisdictional defect, and as a result, dismissal is
required. See McNeil v. United States, 508 U.S. 106,
113 (1993) (“The FTCA bars claimants from bringing suit
in federal court until they have exhausted their
CONCLUSION AND ORDER
consideration of the government's Motion to Dismiss, ECF
No. 5, the memoranda, exhibits, and declarations submitted in
support of, and opposition to, the pending motion, and the
entire record herein, for the reasons set forth in in this
Memorandum Opinion and Order, it is hereby
ORDERED that the government's Motion to
Dismiss, ECF No. 5, is GRANTED; and it is
further ORDERED that ...