                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
JOHNNY RAY CHANDLER, SR.,           )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                        Civil Action No. 16-2141 (BAH)
                                    )
FEDERAL BUREAU OF PRISONS, et al., )
                                    )
                  Defendant.        )
___________________________________ )


                                 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

       The plaintiff is in the custody of the Federal Bureau of Prisons (“BOP”) and was

incarcerated at the Administrative Maximum United States Penitentiary in Florence, Colorado

(“ADX Florence”) at all times relevant to the Complaint. Defs.’ Mem. of P. & A. in Support of

Mot. to Dismiss (“Defs.’ Mem.”), Decl. of Patrick Kissell (“Kissell Decl.”) ¶ 2. He alleges that,

on July 8, 2016, he “attempted to serve the defendants [in a separate civil action in the Superior

Court of the District of Columbia] by certified mail[, and] the Unit Counselor told [him] that the

BOP will not pay the postage for certified mail.” Compl., ECF No. 1-1 at 2. According to the

plaintiff, the BOP and its former Director, Charles Samuels, Jr., are “factually guilty of malicious

interference and denial of access to the Court.” Id. The plaintiff demands a judgment in his

favor, id. at 1, monetary damages of $75,000, id., and a “permanent restraining ORDER ordering



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the defendant[s] to pay the postage for indigent Plaintiff[]s to make service of process by

certified mail,” id. at 2 (emphasis in original).

        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 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.; see id. ¶ 5. The

“process is not complete until the Office of General Counsel replies, on the merits, to the

inmate’s [request].” Id. ¶ 5 (citing 28 C.F.R. § 542.18). The BOP’s declarant states that the

plaintiff submitted 19 formal administrative remedy requests between July 8, 2016 and

December 1, 2016. Id. ¶ 7. Two advanced to the Office of General Counsel, id. ¶ 8, and neither

“involves the allegations set forth in the Complaint in this action,” id. ¶ 9. Therefore, the

declarant avers, the “[p]laintiff did not exhaust his remedies as related to complaints against the

defendants raised in the present case through BOP’s Administrative Remedy Program.” Id. ¶ 10.

His review of “the BOP’s Administrative Tort Claims database [reveals that the p]laintiff did not

submit any administrative tort claims related to the claims alleged in this litigation.” Id. ¶ 11.

II. DISCUSSION
        The plaintiff filed his complaint in the Superior Court of the District of Columbia on July

19, 2016, and the defendants removed the action on October 25, 2016. See Notice of Removal,

ECF No. 1. Accompanying their notice was a statement certifying “that Charles Samuels, Jr.

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. The defendants filed

the instant motion to dismiss or for summary judgment on December 22, 2016.

        On December 23, 2016, the Court issued an Order, ECF No. 6, advising the plaintiff of

his obligations under the Federal Rules of Civil Procedure and the local civil rules of this Court.

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Specifically, the Court notified the plaintiff that, if he failed to file an opposition or other

response to the defendants’ motion by January 27, 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, requested more time to

file an opposition, or advised the Court of any change of address. 1

         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, however, about the application 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). In light of this ruling, the Court briefly addresses the merits of the

defendants’ arguments for dismissal on the ground that the plaintiff has not exhausted his

administrative remedies. The Court presumes without deciding that the complaint adequately

alleges a claim of “malicious interference” and that venue in this district is proper for purposes of

this Memorandum Opinion.

         A. Federal Tort Claims Act
         The plaintiff’s demand for monetary damages arises from action allegedly taken by Mr.

Samuels within the scope of his federal employment. The Court treats the plaintiff’s claim as

one under the Federal Tort Claims Act (“FTCA”) against the United States directly. See 28

U.S.C. § 2679(b)(1), (d)(1).




1
   The plaintiff did file a motion on January 13, 2017 to hold this motion in abeyance for 30 days pending his return
to ADX Florence from the Federal Medical Center in Springfield, Missouri, where he had been transferred on or
about September 7, 2016, without his case files. See generally Pl.’s Mot. for Abeyance, ECF No. 7. He has not
filed an opposition or any other document since. The motion will be denied.


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        “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). Limitations under and exceptions to the FTCA doom 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. 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 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 defendants show that the plaintiff did not file an

administrative tort claim with the BOP, see Kissell Decl. ¶ 11, and therefore failed to exhaust his

administrative remedies under the FTCA. Furthermore, if the Complaint were construed as one

bringing a malicious interference with contract claim, the claim is expressly excluded from

FTCA coverage. See 28 U.S.C. § 2680(h) (excluding “[a]ny claim arising out of . . . abuse of

process, . . . or interference with contract rights”).


                                                   4
        B. Prison Litigation Reform Act
        The plaintiff faces a different set of exhaustion requirements if the Court were “to

conclude that [the plaintiff’s] claims should be governed by the administrative processes required

under the Prison Litigation Reform Act (‘PLRA’).” Defs.’ Mem. at 7.

        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

prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S.

516, 520 (2002); see Jones v. Bock, 549 U.S. 199, 211 (2007). 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). It is an affirmative defense, Jones, 549 U.S. at 216,

which “the defendants have the burden of pleading and proving,” Brengettcy v. Horton, 423 F.3d

674, 682 (7th Cir. 2005) (quoting Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (internal

quotation marks omitted)).

        The defendants demonstrate that neither of the administrative remedy requests filed by

the plaintiff between June 8, 2016 and December 1, 2016 which reached the final step of the

administrative remedy process pertains to the defendants’ alleged interference with the plaintiff’s

effort to serve process on defendants by certified mail in another civil action. Thus, the

defendants demonstrate that the plaintiff failed to exhaust his administrative remedies under the

FTCA and the PLRA.



                                                   5
III. CONCLUSION
       The Court concludes that the plaintiff failed to exhaust his administrative remedies before

filing this civil action, and, therefore, the Court will grant the defendants’ motion to dismiss. An

Order consistent with this Memorandum Opinion is issued contemporaneously.



DATE: April 24, 2017                                    /s/   Beryl A. Howell
                                                      BERYL A. HOWELL
                                                      United States District Judge




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