United States District Court, District of Columbia
RANDOLPH D. MOSS, United States District Judge.
January of 2018, pro se Plaintiff Ricardo Rolando McBean, Jr.
filed a complaint in the Superior Court of the District of
Columbia, naming the “Social Security Building”
at 2041 Martin Luther King Jr. Ave. S.E. in Washington, D.C.
as Defendant. Dkt. 2-1 at 4-5. The complaint stated: “I
would like to sue [the] Social Security Building . . . I went
down there . . . to get the 1099 SSA form [and] they lied to
me [and] said [Social Security Income] can't file
taxes.” Dkt. 2-1 at 6. He seeks $200, 000. Id.
Social Security Administration (“SSA”), which
presumed that it was the intended defendant, removed the case
to federal district court pursuant to 28 U.S.C. §§
1441, 1442(a)(1) & 1446, Dkt. 1; Dkt. 3, and then moved
to dismiss the action for lack of jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) and for failure to state a
claim under Rule 12(b)(6), Dkt. 5. It argued that in order to
sue the SSA, a Plaintiff must first present its claim to the
agency and exhaust the administrative process, and that
Plaintiff's complaint pleads no facts that would allow
for the reasonable inference that he “has attempted
exhaustion under the [A]ct.” Dkt. 5 at 3. It further
argued that, to the extent that Plaintiff's claim alleges
a tort, it does not plead any facts that would allow for the
inference that Plaintiff has “filed an administrative
tort claim with the agency, which is a prerequisite to
jurisdiction in the District Court.” Id.
Court issued a Fox/Neal Order, advising
Plaintiff that, if he “fail[ed] to respond to
Defendant's motion in the time provided, the Court may
(1) treat the motion as conceded; (2) rule on the
Defendant's motion based on Defendant's arguments
alone and without considering Plaintiff's arguments; or
(3) dismiss Plaintiff's claims for failure to
prosecute.” Dkt. 6 at 1 (internal citations omitted).
Plaintiff's opposition to the motion to dismiss was due
on June 3, 2018; that date passed without Plaintiff filing
any opposition, and to date Plaintiff has made no filings in
this matter beyond the complaint.
Court may dismiss a case for failure to prosecute “upon
the Court's own motion.” D.D.C. Rule 83.23;
Bristol Petroleum Corp. v. Harris, 910 F.2d 165, 167
(D.C. Cir. 1990) (“‘[W]hen circumstances make
such an action appropriate,' a district court may dismiss
an action on its own motion because of a party's failure
to comply with court orders designed to ensure orderly
prosecution of the case.”) (quoting Link v. Wabash
R.R. Co., 370 U.S. 626, 633 (1962)) (alteration in
original)). Furthermore, the Court may order a party to
“file a memorandum of points and authorities in
opposition” to a motion, and, “[i]f such
memorandum is not filed within the prescribed time, the Court
may treat the motion as conceded.” D.D.C. Rule 7(b).
Dismissing the action either for failure to prosecute or by
treating the motion to dismiss as conceded would be
appropriate under these circumstances given the explicit
instructions in the Court's Fox/Neal
order and Plaintiff's failure to respond to SSA's
motion to dismiss or to engage in any activity in this case
for well over a year.
is also required due to the Court's lack of jurisdiction
over what appear to be the claims alleged. 42 U.S.C. §
405(g) provides the exclusive grant of jurisdiction to courts
to review cases “arising under” the Social
Security Act. 42 U.S.C. § 405(h). A plaintiff must have
first presented his claim to the SSA in order for the Court
to have jurisdiction to review such a claim. Calderon v.
Berryhill, No. 17-494, 2019 WL 95565, at *3 (D.D.C.
2019). Here, Plaintiff has pleaded no facts that would
support the reasonable inference that he presented his claim
to the SSA prior to filing his suit. See Dkt. 2-1 at
6. Accordingly, the Court does not have jurisdiction to hear
the complaint to the extent that it “arise[s]
under” the SSA. Id. at *4.
extent that Plaintiff's claim sounds in tort, the Court
also lacks jurisdiction to hear it. “Absent a waiver,
sovereign immunity shields the Federal Government and its
agencies from suit.” Fed. Deposit Ins. Corp. v.
Meyer, 510 U.S. 471, 475 (1994). The Federal Tort Claims
Act (“FTCA”) provides “a limited waiver of
sovereign immunity, rendering the United States amenable to
suit for certain, but not all, tort claims.” Davis
v. United States, 944 F.Supp.2d 36, 38 (D.D.C. 2013).
But, for a court to have jurisdiction over a plaintiff's
FTCA claim, he must first have “present[ed] his claim
to the appropriate federal agency.” Id.
Plaintiff has pleaded no facts indicating that he has done
so, and accordingly, even if his complaint were generously
read to allege a tort claim, the Court would not have
jurisdiction to consider it. Id. at 39-40.
of these reasons, the Court will dismiss this action without