CHANDLER v. FEDERAL BUREAU OF PRISONS et al

Filing 7

MEMORANDUM AND OPINION. Signed by Chief Judge Beryl A. Howell on 2/3/17. (ms)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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JOHNNY RAY CHANDLER, SR.,
)
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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. 16-2081 (BAH)

MEMORANDUM OPINION
This matter is before the Court on the defendants’ Motion to Dismiss, ECF No. 5. For
the reasons discussed below, the motion will be granted.
I. BACKGROUND
At all times relevant to the complaint, the plaintiff was incarcerated at the Administrative
Maximum United States Penitentiary in Florence, Colorado (“ADX Florence”). See Defs.’
Mem. of P. & A. in Support of’ Mot. to Dismiss (“Defs.’ Mem.”), Decl. of Patrick Kissell
(“Kissell Decl.”) ¶ 2. Defendant Charles Porco, the Unit Manager, Compl., ECF No. 1-1 at 2,
“was acting within the scope of his employment as an employee of the United States at the time
of the . . . incidents” alleged in the complaint, Certification, ECF No. 1-2.
According to the plaintiff, on May 26, 2016, Porco denied his request for “the privilege
of using computers to write, send and receive E-mails.” Compl. at 2. The plaintiff brought this
action against the Federal Bureau of Prisons (“BOP”) and Porco “under the doctrine of
respondants [sic] superior” for their alleged “abuse of process” and violation of rights protected

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under the Fourteenth Amendment to the United States Constitution. Id. at 1. He demands
judgment in the sum of $100,000. Id.
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 25 formal complaints and/or appeals submitted by
the plaintiff between May 26, 2016 and December 1, 2016, id. ¶ 7, none pertained to the events
described in the complaint, id. ¶ 9. Further, he states, only two of the plaintiff’s administrative
remedy requests reached the Office of the General Counsel, and “neither involves the allegations
set forth in the [c]omplaint in this action.” 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.
The declarant “also reviewed the BOP’s Administrative Tort Claims database.” Id. ¶ 11.
He found that the “[p]laintiff did not submit any administrative tort claims with the BOP related
to the claims alleged in this litigation.” Id.
II. DISCUSSION1
The plaintiff filed this action in the Superior Court of the District of Columbia on June
21, 2016. The defendants removed the case on October 19, 2016, and filed their motion to

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For purposes of this discussion, the Court presumes without deciding that the plaintiff alleges viable legal claims
and that venue in this district is proper.

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dismiss on December 19, 2016. On that same date, 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 defendants’ motion by January 20, 2017, 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 recently has
raised concerns about the use of Local Civil Rule 7(b) to grant an 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). Notwithstanding the value of Local Civil Rule 7(b) as an important “docket-management
tool that facilitates efficient and effective resolution of motions,” id. at 480 (quoting Fox v. Am.
Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004) (additional citation omitted)), the D.C.
Circuit opined that the local rule “stands in tension with . . . Rule 12(b)(6),” id. at 481.
Accordingly, the Court briefly addresses the plaintiff’s factual allegations and the defendants’
legal arguments.
The BOP reasonably construes the complaint as one against a federal government agency
under the Federal Tort Claims Act (“FTCA”), which allows a claimant to file a civil action 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

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U.S.C. § 1346(b). This is a waiver of the federal government’s sovereign immunity, see United
States v. Mitchell, 445 U.S. 535, 538 (1980), and “the terms of [the United States’] consent to be
sued in any court define that court’s jurisdiction to entertain the suit,” id. (quoting United States
v. Sherwood, 312 U.S. 584, 586 (1941)).
The limitations under and exceptions to the FTCA require dismissal of the plaintiff’s
claims. 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.
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 a claimant’s “fail[ure] to
heed that clear statutory command” warrants dismissal of his claim. McNeil v. United States,
508 U.S. 106, 113 (1993). Here, the plaintiff does not allege that he submitted an administrative
tort claim to the BOP before filing this action, and his failure to do so deprives this Court of
jurisdiction.
If the Court were to conclude that the FTCA did not apply, the plaintiff’s claims 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.

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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
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 plaintiff’s administrative remedy requests or
appeals submitted by the plaintiff between May 26, 2016 and December 1, 2016 pertained to the
events described in the complaint. Kissell Decl. ¶¶ 7-9.
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 defendants’ motion. An Order consistent with this
Memorandum Opinion is issued separately.

Beryl A. Howell

DATE: February 3, 2017

/s/
BERYL A. HOWELL
United States District Judge

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