CHANDLER v. KIMBEL

Filing 8

MEMORANDUM AND OPINION. Signed by Chief Judge Beryl A. Howell on 1/17/17. (ms)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff,
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v.
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NEAL KIMBEL,
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Defendant.
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___________________________________ )
JOHNNY RAY CHANDLER,

Civil Action No. 16-1890 (BAH)

MEMORANDUM OPINION
This matter is before the Court on the Defendant’s Motions to Dismiss or, Alternatively,
for Summary Judgment, ECF No. 5, and for Extension of Time to File Reply, ECF No. 7. For
the reasons discussed below, the Court will grant the former and deny the latter as moot.
I. BACKGROUND
At all times relevant to the complaint, the plaintiff has been in the custody of the Federal
Bureau of Prisons (“BOP”) and designated to the Administrative Maximum United States
Penitentiary in Florence, Colorado (“ADX Florence”). See Compl., ECF No. 1-1 at 1. The
plaintiff has “been diagnosed with over five mental health conditions” for which he received
treatment from a psychologist. Id. Dr. Kimbel provided counseling while the plaintiff was
housed in the Special Housing Unit. Id. On or about April 26, 2016, the plaintiff was returned
to the general population and housed in the Eco Unit. Id. at 2. After having a single counseling
session on May 17, 2016 with Dr. Mann, the psychologist assigned to Eco Unit, the plaintiff “left
with a very positive outlook on life and positive plans for the future.” Id. He compared this

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session to those with Dr. Kimbel, commenting that Dr. Kimbel “keeps [him] focused on being
denied and rejected.” Id.
According to the plaintiff, “Dr. Kimbel met with Dr. Mann and instructed her not to see
[him] any more for counseling.” Id. The plaintiff deemed this action “malicious interference”
and the “denial of mental health treatment.” Id. In addition to an award of $100,000, id. at 1, the
plaintiff demands a court order requiring that the plaintiff receive psychotherapy from Dr. Mann,
id. at 3.
The BOP’s Administrative Remedy Program is the means by which inmates may “seek
formal review of any aspect of their confinement.” Mem. of P. & A. in Support of Def.’s Mot. to
Dismiss or, Alternatively, for Summ. J., ECF No. 5-1 (“Def.’s Mem.”), Kissell Decl. ¶ 4. It “is
typically a four-tiered review process comprised of an informal resolution process and then
formal requests to the Warden, the Regional Director, and the Office of the General Counsel.”
Id. The “process is not complete until the Office of General Counsel replies, on the merits, to the
inmate’s [request] or if a response is not forthcoming within the time allotted for reply.” Id. ¶ 5.
The defendant’s declarant states that, of the 26 formal requests submitted by the plaintiff
between May 19, 2016 and November 1, 2016, id. ¶ 7, “four of these requests related to the
claims alleged in this litigation,” id. ¶ 9. None of these four requests made its way to the Office
of General Counsel, however. Id. Based on his review of the plaintiff’s requests, the declarant
concludes that the plaintiff “did not exhaust his remedies as related to complaints against the
defendants raised in the present case through the BOP’s Administrative Remedy Program.” Id. ¶
10.
On June 20, 2016, the plaintiff filed an administrative tort claim “alleging that BOP had
failed to provide proper mental health treatment since March 2016.” Id. ¶ 11; see Def.’s Mem.,

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Ex. 1. The BOP denied the claim on August 18, 2016, Kissell Decl. ¶ 13; see Def.’s Mem., Ex.
2.
II. DISCUSSION
The plaintiff filed this action in the Superior Court of the District of Columbia on June
13, 2016. The defendant removed the case on September 21, 2016 and filed the motion to
dismiss or for summary judgment on November 21, 2016. On November 22, 2016, the Court
issued an Order advising the plaintiff of his obligations under the Federal Rules of Civil
Procedure and the local civil rules of this Court. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.
1992); Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988). Specifically, the Court notified the
plaintiff that, if he failed to file an opposition or other response to the defendant’s motion by
December 21, 2016, the Court would treat the pending dispositive motion as conceded. See
D.D.C. Local Civil Rule 7(b) (permitting court to “treat . . . as conceded” a motion not met with
a timely opposing memorandum of points and authorities). To date, the plaintiff has not filed an
opposition to the pending motion, or requested more time to file an opposition, or advised the
Court of any change of address.
Under these circumstances, the Court ordinarily would grant the defendant’s motion as
conceded. The United States Court of Appeals for the District of Columbia Circuit recently has
raised concerns, however, about the use of Local Civil Rule 7(b) to grant unopposed motions to
dismiss, see Cohen v. Bd. of Trs. of the Univ. of the District of Columbia, 819 F.3d 476, 482
(D.C. Cir. 2016), and for summary judgment, see Winston & Strawn, LLP v. McLean, 843 F.3d
503, 507-08 (D.C. Cir. 2016). Despite acknowledging the value of Local Civil Rule 7(b) as an
important “docket-management tool that facilitates efficient and effective resolution of motions,”
Cohen, 819 F.3d at 480 (quoting Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004)

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(additional citation omitted)), the rule “stands in tension with . . . Rule 12(b)(6),” id. at 481, and
“cannot be squared with . . . Rule 56,” Winston & Strawn, 2016 WL 7174125, at *3. In light of
the D.C. Circuit’s recent rulings, the Court briefly addresses the merits of the defendants’
arguments.
The plaintiff’s demand for monetary damages arises from Dr. Kimbel’s alleged failure to
provide mental health treatment and the harm that resulted. Based on the representation that
“[d]efendant Neal Kimbel was an employee of the Government and was acting within the scope
of his employment for the [BOP] at the time of the allegations stated in Plaintiff’s Complaint,”
Certification, ECF No. 1-2, the Court treats the claim as one brought under the Federal Tort
Claims Act (“FTCA”) against the United States directly.
“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,
212 (1983). 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 id. The
FTCA operates as a limited waiver of sovereign immunity, rendering the United States amenable
to suit for certain, but not all, tort claims. See, e.g., Richards v. United States, 369 U.S. 1, 6
(1962). Under the FTCA, a claimant may file suit against the United States for claims of
“personal injury . . . caused by the negligent or wrongful 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).
Nevertheless, limitations under and exceptions to the FTCA doom the plaintiff’s claim.
Relevant to this case is the exhaustion requirement:
An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope
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of his office or employment, unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by
certified or registered mail. The failure of an agency to make final
disposition of a claim within six months after it is filed shall, at the
option of the claimant any time thereafter, be deemed a final denial
of the claim for purposes of this section.
28 U.S.C. § 2675(a) (emphasis added). “The FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative remedies,” and the plaintiff’s “fail[ure] to
heed that clear statutory command” warrants dismissal of his claim. McNeil v. United States,
508 U.S. 106, 113 (1993).
The six-month period within which the BOP was obliged to respond to the plaintiff’s
FTCA claim had not expired when the plaintiff initiated this lawsuit. The defendants
demonstrate that the plaintiff filed his complaint in the Superior Court prematurely, see Kissell
Decl. ¶¶ 12-13, and thus failed to exhaust his administrative remedies.
If the Court were to conclude that the FTCA did not apply, the plaintiff’s claim still
would be subject to dismissal for failure to exhaust the administrative remedies available to him
through the BOP’s Administrative Remedy Program. In relevant part, the Prison Litigation
Reform Act (“PLRA”) provides:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined to any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is mandatory and “applies to all
inmate suits about prison life, whether they involve general circumstances or particular episodes,
and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516,
532 (2002) (citation omitted); see Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (noting “that . . . a
court may not excuse a failure to exhaust, even to take [special] circumstances into account.”).

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Exhaustion under the PLRA requires proper exhaustion, meaning that a prisoner must comply
with procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal
court, regardless of the relief offered through the administrative process. See Woodford v. Ngo,
548 U.S. 81, 85 (2006); Booth v. Churner, 532 U.S. 731, 741 (2001). Thus, a prisoner may file a
civil action concerning conditions of confinement under federal law only after he has exhausted
the prison’s administrative remedies. See Jackson v. District of Columbia, 254 F.3d 262, 269
(D.C. Cir. 2001).
The defendant demonstrates that none of the administrative remedy requests submitted by
the plaintiff between May 19, 2016 and November 1, 2016 pertained to mental health treatment
the plaintiff allegedly did not receive at ADX Florence had progressed through the final tier for
review by the Office of General Counsel. See Kissell Decl. ¶¶ 7-10.
III. CONCLUSION
The Court concludes that the plaintiff did not exhaust his administrative remedies under
the FTCA and the PLRA prior to filing this action in the Superior Court of the District of
Columbia. Accordingly, the Court grants the defendant’s motion. An Order consistent with this
Memorandum Opinion is issued separately.

DATE: January 17, 2017

/s/

Beryl A. Howell
BERYL A. HOWELL
Chief Judge

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