 

FILED

SEP 1 9 201‘}

UNITED STATES DISTRICT COURT (new, US. Distﬂct and

FOR THE DISTRICT OF COLUMBIA Bankruptcy Courts
Benjamin Cunningham, )
Plaintiff, i
V. 3 Civil Action No. /9"" 
United States Government et al. 3
Defendants. 3

MEMORANDUM OPINION

This matter is before the Court on its initial review of the plaintiff s pro se complaint and
application to proceed in forma pauperis. The application will be granted and the complaint will
be dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii)—(iii) (requiring dismissal of a case upon a
determination that the complaint fails to state a claim upon which relief may be granted or seeks
monetary relief from an immune defendant).

Plaintiff is a resident of Bronx, New York. He sues the United States, a Special Assistant
United States Attorney, the General Counsel of the United States Marshals Service, and an
Attorney employed by the Executive Ofﬁce for United States Attorneys. See Case Caption.
Plaintiff alleges that the defendants committed fraud in declarations ﬁled in his Freedom of
Information Act case that is currently on appeal in the United States Court of Appeals for the
District of Columbia Circuit. See Cunningham v. United States Dep ’t of Justice, No. 13—1115
(RMC) (docket sheet). Plaintiff also alleges constitutional violations and seeks $20 million in
damages for this “Bivens civil case.” Compl. at 28; see Bivens v. Six Unknown Named Agents,
403 US. 388 (1971) (authorizing private cause of action against federal officials for violating

constitutional rights).

The complaint fails because sovereign immunity bars a claim against the United States
and its employees acting in their ofﬁcial capacity save consent “unequivocally expressed in
statutory text[.]” Lane v, Pena, 518 US. 187, 192 (1996). The Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346, 2671-80, provides a limited waiver of the sovereign’s immunity
for money damages “under circumstances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place where the act or omission
occurred.” Id., § 1346(b)(1). The United States has not consented to be sued for conduct
stemming from “the failure of the United States to carry out a federal statutory duty in the
conduct of its own affairs.” Hornbeck Oﬂshore Transp, LLC v. (1.5., 569 F.3d 506, 510 (DC.
Cir. 2009) (citation and internal quotation marks omitted). Nor has it consented to be sued for
constitutional Violations. FDIC v. Meyer, 510 US. 471, 476-78 (1994). In addition, the FTCA
does not provide a remedy for “[a]ny claim arising out of . . . misrepresentation [or] deceit.” 28
U.S.C. § 2680(h).1

To the extent that plaintiff is suing the individual defendants in their personal capacity,
“government ofﬁcials ‘are absolutely immune from damages liability based on their testimony’
in a judicial proceeding.” Gray v. Poole, 275 F.3d 1113, 1118 (DC. Cir. 2002) (quoting Briscoe

v. LaHue, 460 US. 325 (1983)). Hence, this case will be dismissed. A separate Order

accompanies this Memor um Opinion. ¢
wﬁ‘.’ I

Date: September K, 2014 United States District J

‘ Even if the complaint presents a potential claim under the FTCA, jurisdiction is wanting
because plaintiff has not indicated that he has exhausted his administrative remedies by "ﬁrst
present[ing] the claim to the appropriate Federal agency. . . .," 28 U.S.C. § 2675, and this
exhaustion requirement is jurisdictional. See Abdurrahman v. Engstrom, 168 Fed.Appx. 445,
445 (DC. Cir. 2005) (per curiam) (afﬁrming the district court’s dismissal of unexhausted FTCA

claim “for lack of subject matter jurisdiction”); accord Simpkins v. District of Columbia Gov ’t,
108 F.3d 366, 371 (DC. Cir. 2007).

