                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
DILIO ANTONIO ESCARRIA-MONTANO,           )
                                          )
                  Plaintiff,              )
                                          )
                  v.                      )                     Civil Action No. 10-1389 (RWR)
                                          )
UNITED STATES OF AMERICA,                 )
                                          )
                                          )
                  Defendant.              )
__________________________________________)


                                     MEMORANDUM OPINION

        Plaintiff, proceeding pro se, is a federal prisoner at the Federal Correctional Institution in

Big Spring, Texas. He sues under the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L.

No. 102-256, 106 Stat. 73 (codified at 28 U.S.C. § 1350, note1), and Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for injunctive relief and

monetary damages.2 By Order of August 18, 2010, the Bivens claim was dismissed pursuant to

the screening provisions of 28 U.S.C. § 1915A for failure to state a claim, but the TVPA claim

was allowed to proceed against the United States. See Mem. Op. and Order [Dkt. # 4]. The

United States now moves to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of



        1
            See Historical and Statutory Notes, Sec. 1. Short Title.
        2
          Plaintiff also invokes 18 U.S.C. § 2340(2)(A), but that provision is part of a federal
criminal statute that states that “[n]othing in this chapter shall be construed as . . . creating any
substantive or procedural right enforceable by law by any party in any civil proceeding.” 18
U.S.C. § 2340B.
subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be

granted. Because plaintiff has not shown that he exhausted his administrative remedies under

either the TVPA or the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680,

the motion to dismiss under Rule12(b)(1) will be granted.

                                         BACKGROUND

       Plaintiff is a Columbian national who pled guilty under a plea agreement to conspiracy to

possess with intent to distribute cocaine while on board a vessel and is serving a sentence of 168

months. U.S. v. Escarria-Montano, No. 8:06-cr-499-T-23TGW, 2010 WL 3927677, at *1 (M.D.

Fla. Oct. 4, 2010). The instant complaint arises from plaintiff’s alleged injuries sustained during

an encounter on November 29, 2006, between a Panamanian fishing vessel that he was on and a

United States vessel, which resulted in his arrest. The facts as recounted by the court presiding

over plaintiff’s collateral proceeding under 28 U.S.C. § 2255 are as follows:

               On or about November 29, 2006, the defendant along with seven other
       coconspirator crew members, all Colombian nationals, were traveling in the Eastern
       Pacific on the fishing vessel the Mary Valencia. The crew of the Mary Valencia had
       departed the coast of Colombia carrying a cargo of 108 bales of cocaine. They were
       spotted approximately 240 nautical miles from the nearest land mass, the Malpelo
       Island, in international waters. The Mary Valencia was flying under a Panamanian
       flag and had markings of registration on it. The Panamanian Government was
       contacted to verify registration. The Panamanian Government confirmed Panamanian
       registration of the vessel and granted authority to board and search the Mary
       Valencia. The Colombian Government was also contacted when the crew asserted
       Colombian citizenship. The Colombian Government authorized jurisdiction over the
       prosecution of 6 out of the 8 crew members, to include the defendant.
               On November 29, 2006, a Helo team launched from the USS Thatch spotted
       the Mary Valencia during a routine patrol of the Eastern Pacific. The Mary Valencia
       changed it's [sic] course in an effort to elude the Helo team's efforts to hail her. The
       USS Thatch then proceeded to intercept the Mary Valencia.
               As the USS Thatch approached the Mary Valencia it went dead in the water
       and the crew members were observed attempting to scuttle the vessel by setting it on
       fire. As a result there was a violent explosion that resulted in the severe injuries of
       several of the crew members. The crew members jumped into the water and were

                                                  2
       rescued by a USS Coast Guard Boarding Team dispatched from the USS Thatch for
       the purpose of rendering assistance to the crew members in the water. Once they
       accounted for all of the crew members in the water, the Coast Guard Boarding Team
       boarded the Mary Valencia to search for other crew members who may have been
       injured and still on the boat and to assess the damage.
                A search of the vessel revealed that the crew had attempted to set the boat on
       fire by stuffing the fuel tank with fuel soaked rags and pouring gasoline on the deck
       of the boat. A further search revealed a hidden compartment on the Mary Valencia
       in which was found 108 bales of a substance that tested positive for cocaine.
                The Defendant's presence on the vessel was part of an unlawful agreement
       with others to possess with intent to distribute five (5) or more kilograms of cocaine.
       The Mary Valencia was seized with approximately 2700 kilos of cocaine on board
       and the Defendant and 5 co-conspirators were taken into custody by the Coast Guard
       with the Middle District of Florida being the place at which the defendant and
       co-defendants entered the United States. The other two crew men most severely
       injured in the explosion were returned to Colombia for treatment and prosecution.

Escarria-Montano, 2010 WL 3927677, at *1. In this action, plaintiff alleges that he suffered

first, second and third degree burns on various parts of his body from the explosion, Compl. ¶ 14,

and that he was unconscious for three days and hospitalized for 15 days. Id. at ¶¶ 18-19. He

advances the following causes of action: “Misuse of Force,” id. at 7-8; “Denial of Due Process,”

id. at 9-10; and “Denial of Medical Care,” id. at 12.3 In addition to declaratory and injunctive

relief, plaintiff seeks $1.9 million in compensatory damages and more than $1.2 million in

punitive damages. Id. at 19.

                                          DISCUSSION

       Defendant argues that plaintiff’s claim is barred by sovereign immunity. The United

States, as sovereign, is immune from suit absent its explicit consent to be sued. Lehman v.

Nakshian, 453 U.S. 156, 160 (1981); Kugel v. United States, 947 F.2d 1504, 1506 (D.C. Cir.



       3
         The 21-page complaint and its various attachments are far from clear. To add to the
confusion, the complaint contains two sets of page numbers. Where necessary, plaintiff’s page
numbers appearing at the top right-hand corner of the 21-page complaint are cited.

                                                 3
1991). A waiver of “sovereign immunity must be unequivocally expressed in statutory text” and

will be “strictly construed, in terms of its scope, in favor of the sovereign.” El-Shifa Pharm.

Indus. Co. v. United States, 402 F. Supp. 2d 267, 270 (D.D.C. 2005) (quoting Lane v. Pena, 518

U.S. 187, 192 (1996)).

        Section 1350 of Title 28 of the United States Code (“Alien’s action for tort”) vests in the

district court “original jurisdiction of any civil action by an alien for a tort only, committed in

violation of the law of nations or a treaty of the United States.” However, that statute, commonly

referred to as the Alien Tort Claims Act (“ATCA”) or the Alien Tort Statute (“ATS”), has been

interpreted as “strictly jurisdictional [in] nature”; it does not itself “create a statutory cause of

action.” Sosa v. Alvarez-Machain, 542 U.S. 692, 713 (2004). Section 1350 is “intended as

jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with

a certain subject.” Id., 542 U.S. at 714; see id. at 720 (explaining “that Congress intended [§

1350] to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of

nations.”); Arias v. Dyncorp, 517 F. Supp. 2d 221, 227 (D.D.C. 2007) (“It is clear that the ATCA

may be used against corporations acting under ‘color of [state] law,’ or for a handful of private

acts, such as piracy and slave trading.”) (citations omitted).

        Torture is a subject the courts are authorized to address under § 1350, inasmuch as the

TVPA creates a cause of action against an individual who subjects another to torture or

“extrajudicial killing” while acting “under actual or apparent authority, or color of law, of any

foreign nation[.]” 28 U.S.C. § 1350, note § 2(a); see Ali Shafi v. Palestinian Auth’y, 686 F.

Supp. 2d 23, 26 (D.D.C. 2010), aff’d, No. 10-7024, 2011 WL 2315028 (D.C. Cir. June 14, 2011)

(“Torture is one of the rare situations in which courts have recognized a common law cause of


                                                    4
action under the ATS.”) (citation omitted). Unlike the FTCA, under which the United States has

consented to be sued for certain offenses but not others, neither the TVPA nor the ATCA

contains language authorizing a lawsuit against the United States. See Al-Zahrani v. Rumsfield,

684 F. Supp. 2d 103, 113 (D.D.C. 2010) (agreeing with government’s certification under Westfall

Act (28 U.S.C. § 2679(d)) that “plaintiffs cannot sue any of the individual[] [federal employees]

under the ATCA and that plaintiffs' sole remedy lies against the government under the FTCA”);

Bieregu v. Ashcroft, 259 F. Supp. 2d 342, 354 (D.N.J. 2003) (“[W]ith respect to Plaintiff's claims

against Defendants in their official capacities, all courts that have addressed the issue agree that

the ATCA does not itself waive the sovereign immunity of the United States.”) (citing cases); see

also Ali Shafi, 686 F. Supp. 2d at 28 (“Defendants correctly assert that Ali may not plead a cause

of action against non-natural persons under the TVPA.”). But even if this lawsuit is maintainable

under the TVPA, see Arias, 517 F. Supp. 2d at 226-27 (resolving merits of TVPA claim in favor

of U.S. contractor), the TVPA, like the FTCA, requires the exhaustion of administrative remedies

prior to judicial review. See 28 U.S.C. § 1350, note § 2(b) (“A court shall decline to hear a claim

under this section if the claimant has not exhausted adequate and available remedies in the place

in which the conduct giving rise to the claim occurred.”).

       Plaintiff has not shown that he has exhausted his administrative remedies, and the

exhaustion requirement is jurisdictional. See Mohammed v. Rumsfield, No. 07-5178, 2011 WL

2462851, at *7 (D.C. Cir. June 21, 2011) (concluding that “[t]he district court [] properly

dismissed the [unexhausted] ATS claims under FRCP 12(b)(1) for lack of subject matter




                                                  5
jurisdiction.”).4 Therefore, in the absence of subject matter jurisdiction, defendant’s motion to

dismiss under Rule 12(b)(1) will be granted.

                                         CONCLUSION

       Because subject matter jurisdiction over this action is lacking, the complaint will be

dismissed. A separate Order accompanies this Memorandum Opinion.



                                               _________/s/_____________
                                               RICHARD W. ROBERTS
DATE: July 12, 2011                            United States District Judge




       4
          Even if exhaustion has occurred, dismissal would be appropriate under Rule 12(b)(6)
because the facts do not support a finding of torture as defined by 28 U.S.C. § 1350, note, § 3(b);
see Arias v. Dyncorp, 517 F. Supp. 2d 221, 226 (D.D.C. 2007) (discussing definition). Plaintiff’s
alleged injuries resulted from the explosion set by his fellow crew members. U.S. v. Escarria-
Montano, 2010 WL 3927677, at *1. “An act of torture would not include ‘the unforeseen or
unavoidable incident of some legitimate end[,]’ ” Arias, 517 F. Supp. 2d at 226 (citation
omitted), and the facts do not establish that plaintiff was “in defendant[’]s custody or physical
control” when he was injured. Id. Furthermore, among the attachments to plaintiff’s complaint
is an Order of United States Magistrate Judge Philip R. Lane of the Northern District of Texas,
dismissing plaintiff’s case -- including a claim under § 1350 arising from the same set of facts
presented here -- as frivolous. Compl. Attach. D. Therefore, the current claim, having been
previously adjudicated on the merits, is also subject to dismissal as procedurally barred under
either the doctrine of res judicata or that of collateral estoppel.

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