                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
JOHNNY RAY CHANDLER,                )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                        Civil Action No. 16-1908 (BAH)
                                    )
FEDERAL BUREAU OF PRISONS, et al., )
                                    )
                  Defendants.       )
___________________________________ )


                                 MEMORANDUM OPINION

       This matter is before the Court on the defendants’ Motion to Dismiss or, in the

Alternative, for Summary Judgment, ECF No. 7. For the reasons discussed below, the Court will

grant the motion.

                                       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 (“ADX Florence”). See Mem. of P. & A. in Support of Defs.’

Mot. to Dismiss or, Alternatively, for Summ. J. (“Defs.’ Mem.”), Kissell Decl. ¶ 2. The plaintiff

alleged that he has been “diagnosed by the [BOP] as having eight (8) different psychosises [sic]”

yet Dr. Mann, the psychologist assigned to his housing unit, “has not provided [him] with

therapy[.]” Compl. at 2. For this alleged “abuse of process” and violation of rights protected

under the Eighth Amendment to the United States Constitution, the plaintiff demanded damages

of $100,000 each from the BOP and from Dr. Mann. Id. at 1.



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       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] or if

a response is not forthcoming within the time allotted for reply.” Id. ¶ 5. The BOP’s declarant

states that, of the 26 formal complaints submitted by the plaintiff between May 19, 2016 and

November 1, 2016, id. ¶ 7, four pertained to the events described in the complaint, id. ¶ 9. None

of these four reached the Office of the General Counsel, however. See id. ¶¶ 8-9. During the

relevant time period, only two of the plaintiff’s administrative remedy requests reached the

Office of the General Counsel, neither of which “involves the allegations set forth in the

[c]omplaint.” Id. ¶ 8. Based on his review of the plaintiff’s requests, the declarant concludes

that the plaintiff “did not exhaust his remedies as related to complaints against the defendants

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

       On June 20, 2016, the plaintiff filed an administrative tort claim “alleging that BOP had

failed to provide proper mental health treatment since March 2016.” Id. ¶ 11; see Defs.’ Mem.,

Ex. 1. The BOP acknowledged receipt of the request on July 18, 2016, Kissell Decl. ¶ 12, and it

denied the claim on August 18, 2016, id. ¶ 13; see Defs.’ Mem., Ex. 2. The plaintiff filed this

action in the Superior Court of the District of Columbia on June 16, 2016, and the defendants

removed the case on September 26, 2016.

                                        II. DISCUSSION

       The defendants filed their motion to dismiss or, alternatively, for summary judgment, on

November 17, 2016. On that same date, the Court issued an Order advising the plaintiff of his

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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 19, 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 has recently

raised concerns, however, about the use 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), and an unopposed motion for summary judgment, see Winston & Strawn, LLP

v. McLean, No. 14-7197, __ F.3d __, __, 2016 WL 7174125, at *3 (D.C. Cir. Dec. 9, 2016).

Despite acknowledging the value of Local Civil Rule 7(b) as an important “docket-management

tool that facilitates efficient and effective resolution of motions,” Cohen, 819 F.3d at 480

(quoting Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004) (additional citation

omitted)), the rule “stands in tension with . . . Rule 12(b)(6),” id. at 481, and “cannot be squared

with . . . Rule 56,” Winston & Strawn, 2016 WL 7174125, at *3. In light of the D.C. Circuit’s

recent rulings, the Court briefly addresses the merits of the defendants’ arguments.

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

to provide mental health treatment and the harm that resulted. The Court treats the claim as one

brought under the Federal Tort Claims Act (“FTCA”) and accepts the representation that “Dr.

                                                   3
Mann was acting within the scope of her employment as an employee of the United States at the

time of the alleged incidents.” Certification, ECF No. 7-1. Further, the Court liberally construes

the plaintiff’s pro se pleading, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), and overlooks the

plaintiff’s failure to name the United States as a party to this action, see, e.g., Hui v. Castaneda,

559 U.S. 799, 810 (2010).

        “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). Thus, 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).

        There are limitations under and exceptions to the FTCA which 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 this lawsuit. The defendants

demonstrate that the plaintiff filed his complaint in the Superior Court prematurely, see Kissell

Decl. ¶¶ 12-13, 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 administrative remedy requests submitted by

the plaintiff between May 19, 2016 and November 1, 2016 pertained to mental health treatment

the plaintiff allegedly received (or did not receive) at ADX Florence and/or had progressed

through the final tier for review by the Office of General Counsel. See Kissell Decl. ¶¶ 7-10.

Therefore, the Court concludes that the plaintiff did not exhaust his administrative remedies

under the FTCA because his filed the complaint too soon, and that he failed to exhaust his

administrative remedies under PLRA because he failed to complete all four steps of the BOP’s

Administrative Remedy Program process.

       Accordingly the Court the defendants’ motion is granted. An Order is issued separately.




DATE: January 10, 2017                          /s/   Beryl A. Howell
                                                      BERYL A. HOWELL
                                                      United States District Judge




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