Brown v. U.S. Department of Justice et al

Filing 15

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 7/25/2017. (c/m 07/25/2017 - jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

RAYMOND BROWN
Plaintiff
v.
U.S. DEPARTMENT OF JUSTICE, et al.
Defendants.

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Civil No. PJM 16-3541

MEMORANDUM OPINION
Pro se Plaintiff Raymond Brown has sued the United States Department of Justice, the
United States Parole Commission (“Parole Commission”) and the Court Services and Offender
Supervision Agency (“CSOSA”) (collectively, “Defendants”). In his Complaint (ECF No. 1),
Brown alleges that Defendants kept him on supervised release for approximately ten months past
his expiration date. Defendants have filed a Motion to Dismiss, or Alternatively, for Summary
Judgment, disputing two potential interpretations of Brown’s Complaint: (1) that his
constitutional rights were violated under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971); and (2) that he has a tort claim under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346(b). In his Opposition, Brown also suggests that
Defendants violated the Ex Post Facto Clause and the Thirteenth Amendment when they
continued his supervision past his release date.
For the following reasons, the Court will GRANT WITH PREJUDICE Defendants’
Motion to Dismiss (ECF No. 9) and therefore, need not address their alternative Motion for
Summary Judgment (ECF No. 9).

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I.

FACTS AND PROCEDURAL HISTORY

In 1989, the Superior Court of the District of Columbia sentenced Brown to nine years in
prison for unlawful use of a vehicle, violating the Bail Reform Act, and destruction of property.
Defendants’ Motion to Dismiss, Exhibit A, ECF No. 9-2 at 3. He was released on parole in 1992.
ECF No. 9-2 at 6. When his parole was revoked for non-criminal violations, he was immediately
reparoled until August 30, 2004, the recalculated expiration date of his sentence. ECF No. 9-2 at
7-8. Subsequently, while on parole, he was charged with assault with a deadly weapon,
kidnapping while armed, threats while armed, and contempt. ECF No. 9-2 at 1. But in June 2001,
Brown signed an expedited revocation proposal in which he accepted responsibility for his
violations. ECF No. 9-2 at 11. Pursuant to the proposal, the Parole Commission revoked Brown’s
parole, forfeited all the time that he had spent on parole, and continued him to the expiration of
the sentence, less credit for good time. ECF No. 9-2 at 16. On March 23, 2001, the D.C. Superior
Court sentenced Brown to ten years and 180 days in prison, as well as nine years of supervised
release, for his parole violations. ECF No. 9-2 at 1.
In April 2010, Brown’s counsel requested that the Parole Commission reopen Brown’s
case and run his new parole violation sentence concurrently with his original sentence because
Brown contended that he had been under the impression that the sentences would run
concurrently when he signed the expedited revocation proposal. ECF No. 9-2 at 19. On July 7,
2010, the Parole Commission reopened the case and granted Brown reparole effective nunc pro
tunc to May 23, 2001, and began the running of the consecutive sentence on that date, thereby
allowing Brown to complete his new sentence in a shorter amount of time. ECF No. 9-2 at 21.
On July 13, 2010, Brown was released from prison under supervised release, consistent
with his revised nonparolable sentence. See ECF No. 9-2 at 24. Brown was supervised by

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CSOSA because his parolable sentence had expired while he was serving the new sentence. See
ECF No. 9-2 at 4. Annual supervision reports in 2014 and 2015 from Brown’s CSOSA officer
indicated that his supervised release term was set to expire in July 2019, in accordance with the
DC Superior Court’s nine year supervised release term imposed following his July 2010 release.
ECF No. 9-2 at 24, 27. The supervision reports recommended continued supervision, and as late
as September 2015, the Parole Commission decided continued Brown’s supervision. ECF No. 92 at 29.
On May 25, 2016, Brown’s counsel sent a letter to the Parole Commission requesting
immediate termination of his supervision. ECF No. 9-2 at 30. He advised that in December 2009,
the D.C. Superior Court had vacated his nine-year period of supervised release in order to
conform to D.C. law, which limits supervised release to a maximum period of five years. Id. at
30-31, 34. On May 27, 2016, the Parole Commission instructed CSOSA to discontinue Brown’s
supervision, noting that “[t]he BOP never received the amended J & C and the sentence
computation information was not updated” so that his supervision should have expired July 12,
2015. ECF No. 9-2 at 36.
On October 25, 2016, Brown, pro se, filed the present Complaint against Defendants,
claiming that they “knowingly, willingly, and intentionally” refused to release him from
supervised parole when his case expired, which in effect placed him in a state of “involuntary
servitude until on or about [sic] May 27, 2016.” ECF No. 1 ¶ 1. He also claims that Defendants
violated 28 C.F.R. § 2.35(a), which states that “A prisoner shall be mandatorily released by
operation of law at the end of the sentence imposed by the court…” Brown seeks punitive
damages of $5,000,000.

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In their Motion to Dismiss, Defendants infer two potential interpretations of Brown’s
Complaint and dispute both. To the extent Brown brings a Bivens claim alleging that Defendants
violated his constitutional rights by keeping him on supervised release, they argue that the Court
should dismiss his claim for three reasons: (1) sovereign immunity bars the claim, (2) he has not
alleged the violation of a specific constitutional right, and (3) a Bivens claim does not lie against
federal agencies. Defendants’ Motion to Dismiss, ECF No. 9-1 at 5-8. To the extent Brown seeks
to bring an FTCA claim, Defendants cite six reasons why the Court should dismiss his claim: (1)
he failed to exhaust administrative remedies before bringing this action; (2) an FTCA claim does
not lie against federal agencies; (3) punitive damages are barred; (4) any constitutional tort claim
or claim arising from Defendants’ alleged violation of 28 C.F.R. § 2.35(a) is not cognizable; (5)
any claims of false imprisonment and abuse of process are not cognizable; and (6) he has failed
to state a negligence claim under the FTCA. ECF No. 9-1 at 9-16. Defendants admit that
Brown’s term of supervision was extended past the July 2015 expiration date. ECF No. 9-1 at 34.
In Opposition, Brown also suggests that Defendants violated the Ex Post Facto Clause of
the Constitution, art. I, § 9, cl. 3, when they increased his release date from July 2015 to July
2016, which he claims was in direct violation of 28 C.F.R. § 2.200. He also claims that
Defendants placed him in compulsory service, creating a “climate of fear, and threats of legal
coercion” and violating the Thirteenth Amendment. ECF No. 11 at 3.
II. STANDARD OF LAW
A motion to dismiss for failure to state a claim under Rule 12(b)(6) should be granted if
the allegations in a complaint do not “contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A party may move for dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(1) where the court lacks subject matter
jurisdiction over the claims alleged in the complaint. Fed. R. Civ. P. 12(b)(1). Federal courts are
courts of limited subject matter jurisdiction: they “possess only the jurisdiction authorized them
by the United States Constitution and by federal statute.” See United States ex rel. Vuyyuru v.
Jadhav, 555 F.3d 337, 347 (4th Cir. 2009) (citing Bowles v. Russell, 551 U.S. 205, 127 S. Ct.
2360, 2365, 168 L.Ed.2d 96 (2007)). As the party asserting jurisdiction, the plaintiff bears the
burden of proving that the district court has subject matter jurisdiction. See Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). When a
governmental entity is sued and Congress has not waived sovereign immunity as to the claim,
sovereign immunity deprives the court of jurisdiction to hear the case. See Global Mail Ltd. v.
United States Postal Serv., 142 F.3d 208, 210 (4th Cir.1998). When a district court determines
that it lacks subject matter jurisdiction over an action, it must dismiss the action. Vuyyuru, 555
F.3d at 347 (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07, 126 S. Ct. 1235, 163 L.Ed.2d
1097 (2006)).
II.

ANALYSIS

Defendants rightly construe Brown’s Complaint as attempting to seek claims pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and
the FTCA. Brown, they contend, fails to prove that Defendants—federal agencies shielded from
Bivens actions under sovereign immunity—violated his constitutional rights. Additionally, to the
extent Brown is attempting to bring a claim under the FTCA, it is barred because Brown failed to
exhaust administrative remedies by filing claims with CSOSA and the Parole Commission prior
to bringing this action.

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A. Bivens Claim
To bring a Bivens claim, a plaintiff must prove two elements: “(1) a violation of . . .
constitutional rights, (2) by agents acting under color of federal law.” Goldstein v. Moatz, 364
F.3d 205, 210 n. 8 (4th Cir. 2004). The Fourth Circuit has held that “Bivens did not abolish the
doctrine of sovereign immunity of the United States.” Randall v. United States, 95 F.3d 339, 345
(4th Cir. 1996). The United States enjoys sovereign immunity from all lawsuits against it, absent
an express waiver of its immunity. FDIC v. Myer, 510 U.S. 471, 475 (1994); Welch v. United
States, 409 F.3d 646, 650 (4th Cir. 2005). Only federal employees—not federal agencies—can
be sued in a Bivens action. Myer, 510 U.S. at 484-86. A plaintiff cannot bring a Bivens action
against federal agencies such as the Parole Commission and CSOSA. See Owens-El v. Brunson,
No. WDQ–11–0523, 2011 WL 6651330, at *7 n.36 (D. Md. Dec. 14, 2011) (Bivens claim
against Parole Commission and Probation Office barred by sovereign immunity); see also
Kennedy v. U.S. Parole Com’n, No. CCB–13–19, 2013 WL 4517270 (D. Md. Aug. 23, 2013).
In any event, Brown has not established that Defendants violated a constitutional right. In
his Complaint, Brown does not identify a specific provision in the Constitution that Defendants
violated and instead merely asserts that Defendants “discriminated” against him, ECF No. 1 ¶ 2,
and checks the “Other Civil Rights” box on the Civil Cover Sheet attached to the Complaint.
ECF No. 1-1. However, in his Opposition to Defendant’s Motion, Brown claims that Defendants
violated the Ex Post Facto Clause of the Constitution when they continued supervision past his
release date. ECF No. 11 at 3. He also alleges that his Thirteenth Amendment rights were
violated when Defendants placed him “in a condition of compulsory service.” Id. Allowing that
the Court could entertain these arguments raised for the first time in his Opposition—because
they are sufficiently related to his initial claim of discrimination in the Complaint and because

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pro se filings are “liberally construed,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)—they still do
not adequately establish a violation of his constitutional rights.
Brown’s claim that Defendants violated the Ex Post Facto Clause simply has no
application here. Brown’s extended period of supervision was not due to the retroactive
application of a criminal law, which is what the Clause pertains to. Weaver v. Graham, 450 U.S.
24, 29 (1981) (“two critical elements must be present for a criminal or penal law to be ex post
facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and
it must disadvantage the offender affected by it.”). Instead, as Brown’s counsel pointed out in his
May 25, 2016 letter to the Parole Commission, the oversight of his prolonged detention likely
resulted from a record-keeping error that failed to account for the Superior Court’s Amended
Judgment and Commitment Order imposing a maximum period of five years of supervised
release. See ECF No. 9-2, Ex. O at 1.
Brown’s argument that his Thirteenth Amendment rights were violated also fails. The
Parole Commission and CSOSA’s continued supervision of Brown past July 13, 2015, while
erroneous, did not amount to slavery or involuntary servitude, and did not qualify as related
“incidents or badges of slavery.” Washington v. Finlay, 664 F.2d 913, 927 (4th Cir. 1981) (“[the
Thirteenth Amendment’s] independent scope is limited to the eradication of the incidents or
badges of slavery and does not reach other acts of discrimination.”). In his Opposition, Brown
claims that Defendants placed him “in a condition of compulsory service against his will,” but he
fails to explain how being on extended supervised release amounted to compulsory service. See
Hashim v. Nelson-Clash, No. 12–cv–01892–AW, 2013 WL 80155, at *8 (D. Md. Jan. 4, 2013)
(dismissing Thirteenth Amendment claims because parole agents’ denial of plaintiff’s request for

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unsupervised probation did not amount to compulsory labor). Nor, of course, does he cite any
pertinent legal authority in support of his argument.
Further, Brown has not satisfied the second element of a Bivens claim because he brings
this action against two federal agencies—the Parole Commission and CSOSA—instead of
federal agents. To the extent he alleges that his constitutional rights were violated, sovereign
immunity bars his claims against the Parole Commission and CSOSA both of which are most
certainly federal agencies. See Meyer, 510 U.S. at 484–86.
The Court’s dismissal with respect to Brown’s Bivens claim will be with prejudice. A
district court may dismiss a complaint with prejudice when “it is clear that amendment would be
futile in light of the fundamental deficiencies in plaintiffs’ theory of liability.” Cozzarelli v.
Inspire Pharm. Inc., 549 F.3d 618, 630 (4th Cir. 2008). Even if Brown were to amend his
Complaint and bring his Bivens action against the proper federal agents, he would still be unable
to identify any provision in the Constitution protecting him against continued supervision past
his release date. Quite simply, he has failed to state a cognizable claim under Bivens, and this
deficiency cannot be cured by granting him leave to amend.
B. FTCA Claim
“[N]o action lies against the United States unless the legislature has authorized it.”
Dalehite v. United States, 346 U.S. 15, 30 (1953). However, by virtue of the FTCA, Congress
created a limited waiver of sovereign immunity for claims brought against the United States
based on the negligence or wrongful acts or omissions of its employees committed within the
scope of employment. 28 U.S.C. §§ 1346(b)(1), 2671-2680. In those circumstances, the
Government will accept liability in the same manner and to the same extent as a private
individual would have under like circumstances. Id. See Wood v. United States, 845 F.3d 123, *7

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(4th Cir. 2017). As a pre-requisite to the Court’s jurisdiction over an FTCA claim, a plaintiff
must submit documentary proof that he or she exhausted administrative remedies by filing a
claim with the appropriate federal agency. See 28 U.S.C. §§ 1346(b), 2675(a). An FTCA claim
against the United States is barred unless it is presented in writing to the appropriate federal
agency within two years after it accrues or unless court action is begun within six months after
notice of final denial of the claim by the agency to which it was presented. § 2401(b). This
requirement is jurisdictional and cannot be waived. See Ahmed v. United States, 30 F.3d 514, 516
(4th Cir. 1994).
Brown has not offered evidence that he filed the required administrative claims with the
Parole Commission and CSOSA regarding his extended release date. As Defendants note,
Brown’s Notice of Intent to Sue letter to the Parole Commission, ECF No. 1-2, does not satisfy
this requirement. See Stoddard v. U.S. Parole Com’n, 900 F. Supp. 2d 38, 42 (D.D.C. 2012)
(sending an intent-to-sue letter to the Parole Commission, without following proper procedure by
completing an SF-95 form, does not amount to exhaustion of administrative remedies).
Defendants submit five additional reasons why Brown’s FTCA claim fails. ECF No. 9-1
at 12-16. However, the fact that Brown failed to file the required administrative claims with
CSOSA and the Parole Commission prior to bringing this action, therefore not exhausting his
administrative remedies, is dispositive. The Court lacks subject matter jurisdiction to review his
FTCA claim.1 See Thomas v. Holder, No. PJM–10–246, 2010 WL 3260029, at *4 (D. Md. Aug.
18, 2010) (finding that Court was divested of subject matter jurisdiction to review FTCA claim
because there was no evidence that plaintiff exhausted administrative remedies).

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Defendants’ assertion that Brown has failed to file the requisite administrative claims with CSOSA and
the Parole Commission is supported by the declaration of Phillip A. Lattimore, ECF No. 9-1, Ex. S, and
Helen Krapels, ECF No. 9-1, Ex. R. In his Opposition, Brown does not provide any evidence to the
contrary and he has not submitted any additional information to the Court claiming that he has filed an
administration claim with either agency.

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The Court also dismisses Brown’s FTCA claim with prejudice. Brown’s supervision
should have expired on July 13, 2015, five years after his release date of July 13, 2010.
Accordingly, the two-year statute of limitations imposed by § 2401(b) bars Brown’s FTCA claim
because he would have to have filed his administrative claim by July 13, 2017, and he has not
done so.2 See Ahmed, 30 F.3d at 518 (dismissing personal injury claim because plaintiff failed to
present it to the appropriate agency within two years of accident). The passing of the statute of
limitations cannot be cured by granting Brown leave to amend his Complaint.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 9) is GRANTED.
The Court DISMISSES Brown’s Complaint (ECF No. 1) WITH PREJUDICE against all
Defendants. Defendants’ alternative Motion for Summary Judgment is MOOT.
A separate Order will ISSUE.

/s/
_
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
July 25, 2017

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The Fourth Circuit has strictly adhered to the requirements of 28 U.S.C. § 2401(b) despite the harsh
impact of this rule on plaintiffs. Gould v. U.S. Dept. of Health & Human Services, 905 F.2d 378, 747 (4th
Cir. 1990). Further, “there is no provision applicable to 28 U.S.C. § 2401(b) that automatically tolls the
limitation period.” Kinson v. United States, 322 F. Supp. 2d 684, 686 (E.D.Va. 2004). Equitable tolling is
only appropriate when the claimant has exercised due diligence in preserving his legal rights. Muth v.
United States, 1 F.3d 246, 251 (4th Cir. 1993). The pendency of a case does not toll the statute of
limitations under § 2401(b); the two-year period for filing an administrative claim will be computed from
the time the claim first accrued. Cf. Miller v. United States, 418 F. Supp. 373, 378 (D. Minn. 1976)
(“[P]rovisions of State law which normally have the effect of tolling statutes of limitation, such as
minority or the pendency of a workman's compensation claim are not given that effect when the claim is
under the Federal Tort Claims Act. . . . This Court does not have power to extend by implication or
otherwise the statutory period for filing of the administrative claim.”) (citations omitted) (refusing to toll
statute of limitations between commencement and voluntary dismissal of case and holding that state rule
allowing tolling during pendency of an action is not applicable under the FTCA).

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