7 FELED

UNITED STATES DISTRICT COURT JUN 13 2019

FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District & Bankruptcy

Courts for the District of Columbia

WILLIAM J.R. EMBREY, )
Plaintiff, )
) Civil Action No. 1:19-cv-01571 (UNA)
UNITED STATES OF AMERICA, et al., 5
Defendants. )
MEMORANDUM OPINION

 

This matter is before the court on its initial review of plaintiffs pro se complaint
(Compl.”) and application for leave to proceed in forma pauperis. The court will grant the in
forma pauperis application and dismiss the complaint for want of subject matter jurisdiction, see
Fed. R. Civ. P. 12(h)(3), and failure to state a claim upon which relief may be granted, see 28
U.S.C. § 1915(e)(2)(B) (ii).

Plaintiff, a prolific filer in this court and others, is proceeding pro se. He is a former
prisoner residing in Fargo, North Dakota, and is suing the United States. The prolix complaint
alleges two primary allegations, namely that (1) application of 18 U.S.C. §922(g)(1) to plaintiff's
underlying criminal matter was negligent and violative of plaintiff's constitutional right to bear
arms and of due process, and (2) plaintiffs resulting conviction and sentence was inherently
unlawful due to being charged pursuant 18 U.S.C. §922(g)(1). Plaintiff seeks monetary damages
and numerous declarations and inunctions affirming his constitutional interpretations and
renouncing the actions of the government in his criminal matter.

The United States possesses sovereign immunity from suit against itself or one of its

agencies for money damages, except to the extent that it expressly consents to suit. Dalehite v.
United States, 346 U.S. 15, 30 (1953). Such consent, moreover, must be clear and unequivocal.
United States v. Mitchell, 445 U.S. 535, 538 (1980) (citation omitted). A waiver of sovereign
immunity “must be unequivocally expressed in statutory text, and [it cannot] be implied.” Lane v.
. Pena, 518. U.S. 187, 192 (1996) (citations omitted). Plaintiff here has neither pleaded nor
established that the government has‘expressly consented to damages suits for constitutional
violations; therefore, subject matter jurisdiction is lacking.

To the extent that plaintiff presents a negligence claim under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80, jurisdiction is also lacking because there is no
indication that plaintiff has exhausted his administrative remedies under the FTCA by presenting
a claim to “the appropriate Federal agency” and obtaining a written denial, or allowing six months
to pass without a final disposition. 28 U.S.C. § 2675(a). The District of Columbia Circuit has
held that the FTCA’s presentment requirement is “jurisdictional.” Simpkins vy. District of
Columbia Gov't, 108 F.3d 366, 371 (D.C. Cir. 2007); see Abdurraham v. Engstrom, 168 Fed.
Appx. 445, 445 (D.C. Cir. 2005) (per curiam).

Further, plaintiff invokes Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), as the basis for this court’s jurisdiction over his claims. He then
argues that Heck v. Humphrey, 512 U.S. 477 (1994), is inapplicable; however, his argument is
unmoving. In Heck, the Supreme Court held that one who has been convicted of a crime may not
ordinarily recover damages pursuant to 42 U.S.C. § 1983 for “harm caused by actions whose
unlawfulness would render [his] conviction or sentence invalid.” Jd. at 486. The only qualification
to this otherwise broad prohibition is if a plaintiff can “prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court's issuance of a
writ of habeas corpus, 28 U.S.C. § 2254.” Jd at 486-87. The parameters of Heck have been
expanded to reach § 1983's federal equivalent, or a “Bivens claim.” See generally Bivens, 403 U.S.
at 388; see also Williams v. Hill, 74 F.3d 1339, 1340-41 (D.C. Cir. 1996) (per curiam).

Plaintiff states that “Heck is inapplicable because [he] challenges the procedures that led
to his incarceration, not his underlying conviction and sentence.” This argument is circular
- because, if the court finds that the procedures that brought about his conviction and sentence were
unconstitutional, then it “would necessarily imply the invalidity of his conviction.” Heck, 512
U.S. at 487. It is merely an exercise in semantics as to whether plaintiff seeks damages based on
an unconstitutional conviction, or as here, he requests damages because “the practices, or methods
... used to [obtain] the judgment against [p]laintiff were and are unconstitutional.” Therefore,
because plaintiff was found guilty and because the verdicts have not been set aside, plaintiff cannot
recover damages for the actions of those who allegedly brought about his conviction. See
Williams, 74 F.3d at 1341.

Lastly, plaintiffs challenge to the inclusion and application of 18 U.S.C. §922(g)(1) to his
underlying criminal charges has already been presented to this court. See Embrey v. The Attorney
General of the United States, No. 09-cv-00500 (UNA) (D.D.C. filed Mar. 16, 2009). These
arguments were dismissed with prejudice as frivolous and for failure to state a claim. See id. at
Mem. Op. & Ord., ECF Nos. 5-6 (D.D.C. filed May 13, 2009). The prior adjudication has
preclusive effect and these renewed claims shall be dismissed for the same reasons stated in the
Memorandum Opinion. See id.

Accordingly, this case is dismissed. A separate order accompanies this memorandum
opinion.

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Date: June l L , 2019 ae ict Judge
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