GALLIPEAU v. BUREAU OF PRISONS

Filing 16

MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Judge Amy Berman Jackson on 11/16/15.(ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DENNIS GALLIPEAU,
Plaintiff,
v.

BUREAU OF PRISONS
Defendant.
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Civ. Action No. 15-0697 (ABJ)

MEMORANDUM OPINION
Plaintiff, a former federal prisoner, initiated this action pro se in May 2015 while at a
halfway house in Columbia, South Carolina. In the “Complaint for Injunctive Relief,” plaintiff
seeks an order compelling the Bureau of Prisons (BOP) to produce x-rays taken of his teeth in
August 2008, when he first entered BOP’s custody, and to provide the x-rays to a local dentist “in
order to identify all teeth damaged while in [BOP’s] custody and to pay for the repair of all teeth
that can be repaired, and to repair or replace plaintiff’s two front teeth.” Compl. at 2.
On July 27, 2015, BOP moved to dismiss or to transfer the case to the United States District
Court for the District of South Carolina, ECF No. 10. Three days later, on July 30, 2015, plaintiff
was released from BOP’s custody. See www.bop.gov (Inmate Locator). Since “a prisoner’s . . .
release from [] prison moots any claim he might have for equitable relief arising out of the
conditions of his confinement[,]” Scott v. District of Columbia, 139 F.3d 940, 941 (D.C. Cir.
1998), the Court agrees that the complaint for injunctive relief is moot. See Def.’s Mem. of P. &
A. at 10-11.
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In opposing defendant’s motion, plaintiff contends that his teeth were damaged while in
BOP’s custody, that BOP had a duty to repair the damage, and that BOP breached that duty when
it failed to fix his teeth while he was in custody. See Pl.’s Resp. to Def.’s Mot. to Dismiss or
Transfer, ECF No. 12, at 3. Plaintiff invokes the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346, 2671-80, while maintaining his demand for “only injunctive relief.” Pl.’s Resp. at 1.
The FTCA provides a limited waiver of the sovereign's immunity from suit “for money
damages . . . for personal injury . . . caused by the negligent . . . act or omission of any employee of
the Government while acting within the scope of his office or employment[.]” 28 U.S.C. §
1346(b)(1) (emphasis added). Even if, as the complaint suggests, plaintiff is seeking money
damages to cover the costs of repairing his teeth, the Court lacks jurisdiction over that claim
because plaintiff does not refute defendant’s evidence showing that he has not exhausted his
administrative remedies under the FTCA pursuant to 28 U.S.C. § 2675(a). See Decl. of Grzegorz
Bitner, ECF No. 14-1; Decl. of Carolyn Lanphear, ECF No. 10-1. Plaintiff acknowledges that he
“must first file a claim directly to [the] agency,” and he states that “he has two years within which
to do so.” Pl.’s Resp. at 1-2. Plaintiff also contends, without citing any authority, that “[t]here is
nothing preventing this Court from granting . . . relief prior to full exhaustion under the FTCA.”
Id. at 2.

But the FTCA’s exhaustion requirement is “jurisdictional,” and “in this posture, the

court could no more rule in favor of [plaintiff] than against [him].” Simpkins v. District of
Columbia Gov't, 108 F.3d 366, 371 (D.C. Cir. 2007). Consequently, the purported FTCA claim is
hereby dismissed without prejudice. See id. at 372; Abdurrahman v. Engstrom, 168 Fed.Appx.
445, 445 (D.C. Cir. 2005) (per curiam) (affirming the district court’s dismissal of unexhausted
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FTCA claim for lack of subject matter jurisdiction).

A separate order accompanies this

Memorandum Opinion.

AMY BERMAN JACKSON
United States District Judge
Date: November 16, 2015

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