UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

)

ORAL GEORGE THOMPSON, )
)

Plaintiff, )

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Vv. ) Civil Action No. 19-3689 (UNA)

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STEVEN J. TOCHTERMAN, et al., )
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Defendants. )

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MEMORANDUM OPINION

 

The plaintiff presently is serving a prison term of 286 months. See United States v.
Thompson, No. 12-CR-266 (ABJ) (D.D.C. Aug. 10, 2017) (Judgment in a Criminal Case). He
alleges that Steven J. Tochterman, an investigator with the Federal Aviation Administration
(“FAA”), presented false testimony on behalf of the government at his criminal trial. The
plaintiff brings this civil action against both Mr. Tochterman and the federal government for
alleged violations of rights protected under the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution.

Insofar as the plaintiff sues Mr. Tochterman in his individual capacity and demands
damages arising from his alleged false testimony, the claim proceeds under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The claim
must be dismissed, however, under Heck v. Humphrey, 512 U.S. 477 (1994), which in relevant
part provides:

[IIn order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid .
. . plaintiff must 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.

Id. at (1994); Williams v. Hill, 74 F.3d 1339 (D.C. Cir. 1996) (applying “[t]he rationale of Heck .
.. to claims against federal officials in Bivens actions”). The plaintiff does not demonstrate that
his conviction or sentence has been reversed or otherwise invalidated, and, therefore, his claim
for damages fails. See, e.g., Johnson v. Williams, 699 F. Supp. 2d 159, 171 (D.D.C. 2010), aff'd
sub nom. Johnson v. Fenty, No. 10-5105, 2010 WL 4340344 (D.C. Cir. Oct. 1, 2010) (per
curiam). Moreover, a witness is absolutely immune from a claim for damages arising from his

testimony. See Briscoe v. LaHue, 460 U.S. 325 (1983).

Insofar as the plaintiff demands money damages from Tochterman in his official capacity
and from the FAA, the claim proceeds as one under the Federal Tort Claims Act (“FTCA”). See
28 U.S.C. §§ 1346, 2671-80. The plaintiffs FTCA claim fails for two reasons. First, a plaintiff
cannot pursue an FTCA claim against the United States or a federal government agency unless
he first has presented his claim to the appropriate federal agency and the agency has denied the
claim. See 28 U.S.C. § 2401(b); McNeil v. United States, 508 U.S. 106, 111 (1993). This
exhaustion requirement is jurisdictional, and absent any showing by the plaintiff that he has
exhausted her administrative remedies, the Court lacks jurisdiction over this matter. See
Abdurrahman v. Engstrom, 168 F. App’x 445 (D.C. Cir. 2005). Second, while the FTCA is an
example of an express waiver of the federal government’s sovereign immunity, the FTCA does
not expose the United States to liability for the commission of all torts, see, e.g., Richards v.
United States, 369 U.S. 1, 6 (1962). Because “the United States simply has not rendered itself

liable under [the FTCA] for constitutional tort claims,” FDIC v. Meyer, 510 U.S. 471, 478
(1994), the Court lacks subject matter jurisdiction over the plaintiffs claims arising from alleged
violations of Fifth, Sixth and Fourteenth Amendment rights, see, e.g., Jones v. Yanta, 610 F.
Supp. 2d 34, 42 (D.D.C. 2009).

The Court will grant the plaintiff’s application to proceed in forma pauperis, deny his
motion for service as moot, and dismiss the complaint. An Order accompanies this

Memorandum Opinion.

bey >
DATE: January 24 , 2020

AMIJ/P. MEFITA
United States District Judge
