United States District Court, District of Columbia
WILLIAM J.R. EMBREY, Plaintiff,
UNITED STATES OF AMERICA, et al, Defendants.
matter is before the court on its initial review of
plaintiffs pro se complaint ("Compl.") and
application for leave to proceed in forma pauperis.
The court will grant the in forma pauperis
application and dismiss the complaint for want of subject
matter jurisdiction, see Fed. R. Civ. P. 12(h)(3),
and failure to state a claim upon which relief may be
granted, see 28 U.S.C. §1915(e)(2)(B)(ii).
a prolific filer in this court and others, is proceeding
pro se. He is a former prisoner residing in Fargo,
North Dakota, and is suing the United States. The prolix
complaint alleges two primary allegations, namely that (1)
application of 18 U.S.C. §922(g)(1) to plaintiffs
underlying criminal matter was negligent and violative of
plaintiff s constitutional right to bear arms and of due
process, and (2) plaintiffs resulting conviction and sentence
was inherently unlawful due to being charged pursuant 18
U.S.C. §922(g)(1). Plaintiff seeks monetary damages and
numerous declarations and inunctions affirming his
constitutional interpretations and renouncing the actions of
the government in his criminal matter.
United States possesses sovereign immunity from suit against
itself or one of its agencies for money damages, except to
the extent that it expressly consents to suit. Dalehite
v. United States, 346 U.S. 15, 30 (1953). Such consent,
moreover, 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). Plaintiff here has neither
pleaded nor established that the government has'
expressly consented to damages suits for constitutional
violations; therefore, subject matter jurisdiction is
extent that plaintiff presents a negligence claim under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 1346(b), 2671-80, jurisdiction is also 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 written denial, or allowing six months to pass
without a final disposition. 28 U.S.C. § 2675(a). The
District of Columbia Circuit has held that the FTCA's
presentment requirement is "jurisdictional."
Simpkins v. District of Columbia Gov't, 108 F.3d
366, 371 (D.C. Cir. 2007); see Abdurraham v.
Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per
plaintiff invokes Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as the
basis for this court's jurisdiction over his claims. He
then argues that Heck v. Humphrey, 512 U.S. 477
(1994), is inapplicable; however, his argument is unmoving.
In Heck, the Supreme Court held that one who has
been convicted of a crime may not ordinarily recover damages
pursuant to 42 U.S.C. § 1983 for "harm caused by
actions whose unlawfulness would render [his] conviction or
sentence invalid." Id. at 486. The only
qualification to this otherwise broad prohibition is if a
plaintiff can "prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254." Id. at 486-87. The parameters of
Heck have been expanded to reach § 1983's
federal equivalent, or a "Bivens claim."
See generally Bivens, 403 U.S. at 388; see also
Williams v. Hill, 74 F.3d 1339, 1340-41 (D.C. Cir. 1996)
states that "Heck is inapplicable because [he]
challenges the procedures that led to his incarceration, not
his underlying conviction and sentence." This argument
is circular because, if the court finds that the procedures
that brought about his conviction and sentence were
unconstitutional, then it "would necessarily imply the
invalidity of his conviction." Heck, 512 U.S.
at 487. It is merely an exercise in semantics as to whether
plaintiff seeks damages based on an unconstitutional
conviction, or as here, he requests damages because "the
practices, or methods . . . used to [obtain] the judgment
against [p]laintiff were and are unconstitutional."
Therefore, because plaintiff was found guilty and because the
verdicts have not been set aside, plaintiff cannot recover
damages for the actions of those who allegedly brought about
his conviction. See William, 74 F.3d at 1341.
plaintiffs challenge to the inclusion and application of 18
U.S.C. §922(g)(1) to his underlying criminal charges has
already been presented to this court. See Embrey v. The
Attorney General of the United States, No. 09-cv-00500
(UNA) (D.D.C. filed Mar. 16, 2009). These arguments were
dismissed with prejudice as frivolous and for failure to
state a claim. See Id. at Mem. Op. & Ord., ECF
Nos. 5-6 (D.D.C. filed May 13, 2009). The prior adjudication