                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
JOHNNY RAY CHANDLER,                )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                        Civil Action No. 16-1891 (BAH)
                                    )
CATHLIN OLGUIN, et al.,             )
                                    )
                  Defendants.       )
___________________________________ )



                                 MEMORANDUM OPINION



       This matter is before the Court on the Defendants’ Motions to Dismiss or, Alternatively,

for Summary Judgment, ECF No. 6, and for Extension of Time to File Reply, ECF No. 9. For

the reasons discussed below, the Court will grant the former and deny the latter as moot.

I. BACKGROUND

       At all times relevant to the complaint, the plaintiff was in the custody of the Federal

Bureau of Prisons (“BOP”) and incarcerated at the Administrative Maximum United States

Penitentiary in Florence, Colorado. Defs.’ Mem. of P. & A. in Support of Defs.’ Mot. to Dismiss

or, Alternatively, for Summ. J. (“Defs.’ Mem.”), Kissell Decl. ¶ 2. The plaintiff, who has “a

heart condition known as P.V.C.,” Compl. at 1, began to experience “very bad and painful chest

pains” on February 27, 2016[,]” id. at 2. “Nurse[] Olguin, R.N., was the medical staff member

on duty. Id. Although Olguin had been informed of the plaintiff’s condition, she allegedly

“never came” to assist him, and he “waited (in pain) for over an hour.” Id. According to the

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plaintiff, “Nurse Olguin, R.N. was required to at least check [his] vital signs, but she never did,”

even though the plaintiff “could have died.” 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 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. The “process is not

complete until the Office of General Counsel replies, on the merits, to the inmate’s [request].”

Id. ¶ 5. The BOP’s declarant states that, of the 57 formal administrative remedy requests

submitted by the plaintiff between February 27, 2016 and October 1, 2016, id. ¶ 7, four reached

the Office of General Counsel, id. ¶ 8. “[N]one of these requests relates to the claims alleged in

this litigation,” however. Id. ¶ 9. “In fact, none . . . relates to an incident occurring on February

27, 2016.” Id. Based on his review, the declarant avers that 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.

       On March 10, 2016, the plaintiff filed an administrative tort claim “with BOP . . .

alleging that he was injured as a result of tortious conduct on February 27, 2016.” Id. ¶ 11; see

generally id., Ex. (Claim for Damage, Injury, or Death). The BOP initiated two separate

investigations, the first (Claim No. 2016-03356) on March 21, 2016, and the second (Claim No.

2016-03653) on April 11, 2016. Id. ¶¶ 13-15. The BOP denied Claim No. 2016-03653 on June

22, 2016, and Claim No. 2016-03356 on September 21, 2016. Id. ¶¶ 16-17.




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II. DISCUSSION

        On June 13, 2016, in the Superior Court of the District of Columbia, the plaintiff filed a

civil action against the BOP and Olguin “for medical negligence” demanding monetary damages

of $75,000. Compl. at 1. The defendants removed the case on September 21, 2016, and filed

their motion to dismiss or for summary judgment on November 21, 2016. On November 22,

2016, the Court issued an Amended 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 December 21, 2016, 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, however, about the use of Local Civil Rule 7(b) to grant 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), and for summary judgment, see Winston & Strawn, LLP v. McLean, 843 F.3d

503, 507-08 (D.C. Cir. 2016). In light of these recent rulings, the Court briefly addresses the

merits of the defendants’ arguments.

        The plaintiff’s demand for monetary damages arises from the defendants’ alleged breach

of duty to provide medical treatment on February 2, 2016, and the unspecified harm he allegedly
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suffered as a result. Based on the representation that “Cathlin Olguin was an employee of the

Government and was acting within the scope of her employment for the [BOP] at the time of the

allegations stated in Plaintiff’s Complaint,” Certification, ECF No. 1-2, the Court treats the

plaintiff’s negligence claim as one brought under the Federal Tort Claims Act (“FTCA”) against

the United States directly.

        “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). Under the FTCA, a claimant may file suit against the United States 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 U.S.C. § 1346(b).

        Nevertheless, limitations under and exceptions to the FTCA doom the plaintiff’s claim.

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.




                                                   4
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 the plaintiff’s “fail[ure] to

heed that clear statutory command” warrants dismissal of his claim. McNeil v. United States,

508 U.S. 106, 113 (1993).

       The six-month period within which the BOP was obliged to respond to the plaintiff’s

FTCA claim had not expired when the plaintiff initiated his lawsuit. The defendants demonstrate

that the plaintiff filed his complaint in the Superior Court prematurely, see Kissell Decl. ¶¶ 11-

12, and thus failed to exhaust his administrative remedies.

       If the Court were to conclude that the FTCA did not apply, the plaintiff’s claim 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.

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

                                                   5
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

submitted between February 27, 2016 and October 1, 2016 reaching the final tier for review by

the Office of General Counsel pertained to the medical treatment the plaintiff allegedly had been

denied. See 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.




DATE: January 18, 2017                         /s/   Beryl A. Howell
                                             BERYL A. HOWELL
                                             Chief Judge




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