United States District Court, District of Columbia
KEITH D. JOHNSON, Plaintiff,
JESSIE K. LIU, et al., Defendants.
MEMORANDUM AND ORDER
A. HOWELL, CHIEF JUDGE
Johnson, a D.C. prisoner proceeding pro se, filed
this “Malicious Prosecution” action in D.C.
Superior Court against the United States Attorney for the
District of Columbia and an Assistant United States Attorney
(“AUSA”), alleging in a single paragraph that the
defendants failed to disclose that his D.C. Superior Court
indictment was secured through allegedly perjured grand jury
witness testimony, in violation of Brady v.
Maryland, 373 U.S. 83 (1963), and seeking “$99.5
million” in damages. See Compl. at 1, ECF No.
1-1. The government removed the action, see Notice
of Removal, ECF No. 1, and filed a notice that this case is
related to a previous lawsuit filed by the plaintiff against
the government in Johnson v. United States, Civil
Action No. 18-cv-2608 (“First Action”),
see Gov't's Notice of Related Case at 1, ECF
No. 3. Indeed, the instant Complaint raises an identical
claim to the claim in the plaintiff's First Action,
except this case names as defendants the current United
States Attorney and a different AUSA. See Compl.
before the Court is the government's Motion to Dismiss,
ECF No. 6, for, inter alia, lack of subject matter
jurisdiction and failure to exhaust administrative
remedies. Shortly after the government filed its
motion, on February 4, 2019, the Court advised the plaintiff
of his obligations under the Federal Rules of Civil Procedure
and the Local Civil Rules of this Court to file an opposition
to the government's motion by March 1, 2019. See
Order at 1-2, ECF No. 7 (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)). On
March 13, 2019, after receiving the
Fox/Neal Order, the plaintiff explained
that he “would like to have more time to respond,
” Pl.'s Letter Seeking Extension of Time (Mar. 13,
2019), ECF No. 10, which request for an extension of time was
granted until March 21, 2019, Min. Order (Mar. 13, 2019)
(granting extension of time). The plaintiff, however, never
subsequently filed a response. The government's motion is
thus ripe for resolution.
to the Westfall Act, 28 U.S.C. § 2679(d), the
plaintiff's malicious prosecution tort claim is treated
as against the United States because the government certified
that the plaintiff's Complaint concerns actions by
government officials who “were acting within the scope
of their employment as employees of the United States at the
time of the alleged incident, ” see
Gov't's Mot. Dismiss, Ex. C, Certification at 1, ECF
No. 6-4; see also Wasserman v. Rodacker, 557 F.3d
635, 638-39 (D.C. Cir. 2009). This action, in turn, is
dismissed, for the same reasons for which the First Action is
dismissed. See Johnson v. United States,
18-cv-2608-BAH, Mem. Op. & Order (Apr. 2, 2019), ECF No.
the plaintiff's claim arises under the Federal Tort
Claims Act (“FTCA”), since he seeks to hold the
United States liable in tort. See Wuterich v.
Murtha, 562 F.3d 375, 380 (D.C. Cir.
2009). The FTCA, however, does not waive the
government's sovereign immunity for malicious prosecution
claims against federal prosecutors. See Moore v. United
States, 213 F.3d 705, 710 (D.C. Cir. 2000); Hobley
v. United States, No. 07-cv-253 (JDB), 2007 WL 1821157,
at *3 (D.D.C. June 25, 2007). As a result, the
plaintiff's claim is barred. In the alternative,
jurisdiction is lacking because the plaintiff never filed an
administrative tort claim with the U.S. Attorney's Office
for the District of Columbia, and therefore failed to exhaust
his administrative remedies. See Gov't's
Mot. Dismiss, Ex. B, Decl. of Daniel F. Van Horn, Chief,
Civil Division, USAO D.C., ECF No. 6-3; see also McNeil
v. United States, 508 U.S. 106, 113 (1993); 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). Accordingly, the plaintiff's claim shall be
consideration of the government's Motion to Dismiss, ECF
No. 6, 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 and Order, it is hereby
that the government's Motion to Dismiss, ECF No. 6, is
GRANTED; and it is further
that this action is DISMISSED; and it is
that the Clerk of Court is directed to close this case.
 Since the government's motion is
resolved on the two referenced grounds, the remaining
proffered bases for why the plaintiff's claim should be
dismissed, including (1) the doctrine of derivative
jurisdiction; (2) insufficient service; (3) failure to state
a viable claim for malicious prosecution; and (4) Heck v.
Humphrey, 512 U.S. 477 (1994), need not be
 Prior to the Court's
Fox/Neal Order, on February 1, 2019, the
plaintiff wrote a sparse, one-page letter that conclusorily
states “this matter should not be removed” or
“dismissed.” Pl.'s Letter at 1 (Feb. 1,
2019), ECF No. 8. This letter fails to contest the bases for
the government's motion to dismiss. Additionally, the
government properly removed this action because the plaintiff
sued named officials for allegedly tortious acts, performed
in their ...