CHANDLER v. FEDERAL BUREAU OF PRISONS et al

Filing 9

MEMORANDUM AND OPINION. Signed by Chief Judge Beryl A. Howell on 1/10/17. (ms)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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JOHNNY RAY CHANDLER,
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Plaintiff,
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v.
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FEDERAL BUREAU OF PRISONS, et al., )
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Defendants.
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___________________________________ )

Civil Action No. 16-1908 (BAH)

MEMORANDUM OPINION
This matter is before the Court on the defendants’ Motion to Dismiss or, in the
Alternative, for Summary Judgment, ECF No. 7. For the reasons discussed below, the Court will
grant the motion.
I. BACKGROUND
At all times relevant to the complaint, the plaintiff was in the custody of the Federal
Bureau of Prisons (“BOP”) and incarcerated at the Administrative Maximum United States
Penitentiary in Florence, Colorado (“ADX Florence”). See Mem. of P. & A. in Support of Defs.’
Mot. to Dismiss or, Alternatively, for Summ. J. (“Defs.’ Mem.”), Kissell Decl. ¶ 2. The plaintiff
alleged that he has been “diagnosed by the [BOP] as having eight (8) different psychosises [sic]”
yet Dr. Mann, the psychologist assigned to his housing unit, “has not provided [him] with
therapy[.]” Compl. at 2. For this alleged “abuse of process” and violation of rights protected
under the Eighth Amendment to the United States Constitution, the plaintiff demanded damages
of $100,000 each from the BOP and from Dr. Mann. Id. at 1.

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The BOP’s Administrative Remedy Program is the means by which inmates may “seek
formal review of any aspect of their confinement.” Kissell Decl. ¶ 4. It “is typically a fourtiered 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 BOP’s declarant
states that, of the 26 formal complaints submitted by the plaintiff between May 19, 2016 and
November 1, 2016, id. ¶ 7, four pertained to the events described in the complaint, id. ¶ 9. None
of these four reached the Office of the General Counsel, however. See id. ¶¶ 8-9. During the
relevant time period, only two of the plaintiff’s administrative remedy requests reached the
Office of the General Counsel, neither of which “involves the allegations set forth in the
[c]omplaint.” Id. ¶ 8. 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 Defs.’ Mem.,
Ex. 1. The BOP acknowledged receipt of the request on July 18, 2016, Kissell Decl. ¶ 12, and it
denied the claim on August 18, 2016, id. ¶ 13; see Defs.’ Mem., Ex. 2. The plaintiff filed this
action in the Superior Court of the District of Columbia on June 16, 2016, and the defendants
removed the case on September 26, 2016.
II. DISCUSSION
The defendants filed their motion to dismiss or, alternatively, for summary judgment, on
November 17, 2016. On that same date, the Court issued an Order advising the plaintiff of his
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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 defendants’ motion by December 19, 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 defendants’ motion as
conceded. The United States Court of Appeals for the District of Columbia Circuit has recently
raised concerns, however, about the use of Local Civil Rule 7(b) to grant an unopposed motion
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 an unopposed motion for summary judgment, see Winston & Strawn, LLP
v. McLean, No. 14-7197, __ F.3d __, __, 2016 WL 7174125, at *3 (D.C. Cir. Dec. 9, 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) (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 the defendants’ alleged failure
to provide mental health treatment and the harm that resulted. The Court treats the claim as one
brought under the Federal Tort Claims Act (“FTCA”) and accepts the representation that “Dr.
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Mann was acting within the scope of her employment as an employee of the United States at the
time of the alleged incidents.” Certification, ECF No. 7-1. Further, the Court liberally construes
the plaintiff’s pro se pleading, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), and overlooks the
plaintiff’s failure to name the United States as a party to this action, see, e.g., Hui v. Castaneda,
559 U.S. 799, 810 (2010).
“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). Thus, 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).
There are limitations under and exceptions to the FTCA which 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 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.

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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.”).
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
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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 defendants demonstrate 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 received (or did not receive) at ADX Florence and/or had progressed
through the final tier for review by the Office of General Counsel. See Kissell Decl. ¶¶ 7-10.
Therefore, the Court concludes that the plaintiff did not exhaust his administrative remedies
under the FTCA because his filed the complaint too soon, and that he failed to exhaust his
administrative remedies under PLRA because he failed to complete all four steps of the BOP’s
Administrative Remedy Program process.
Accordingly the Court the defendants’ motion is granted. An Order is issued separately.

DATE: January 10, 2017

/s/

Beryl A. Howell
BERYL A. HOWELL
United States District Judge

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