                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



KEITH O. STODDARD,

       Plaintiff,
               v.                                         Civil Action No. 12-857 (JEB)
U.S. PAROLE COMMISSION, et al.,

      Defendants.



                                  MEMORANDUM OPINION

       Plaintiff Keith Stoddard has brought this pro se action against the U.S. Parole

Commission, its chairman Isaac Fulwood, and two other USPC employees relating to his

detention for a parole violation. Defendants now move to dismiss the Complaint on several

independent grounds, including improper service and various forms of immunity. As Plaintiff

has abjured any individual-capacity claims, and as the principles of sovereign immunity and

administrative exhaustion protect the USPC itself here, the Court will grant the Motion.


I.     Background


       According to his Amended Complaint, the truth of which must be presumed at this stage,

Plaintiff was arrested in Virginia in March 2011 for driving under the influence. See Am.

Compl. at 1. As a result, the USPC issued a parole-violator warrant for him “with instructions

that [the] warrant be held in abeyance pending [the] outcome of [the Virginia] proceedings.” Id.

The warrant was nonetheless executed, and Plaintiff turned himself in on April 22. Id. at 2. He

was thereafter taken to the D.C. Jail. Id. He never received a probable-cause hearing and was

not released until July 6. Id. at 2-3. Plaintiff claims that such allegedly improper detention

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caused him severe emotional distress and cost him his job and school enrollment. Id. at 3-5. The

Amended Complaint, however, sets forth neither any cause of action nor any prayer for relief.

As Plaintiff has been released from custody, the Court can only assume that he seeks monetary

damages here.

       Plaintiff’s initial Complaint (ECF No. 1) named four Defendants: the USPC, Chairman

Fulwood, and USPC employees David Wynn and Jequan Jackson. The last two were expressly

named in their individual capacities. See Compl. at 1. On July 16, 2012, the Court issued a

Minute Order advising Plaintiff that, if he wished to sue any Defendant in his individual

capacity, he must effect service in the manner prescribed by Federal Rule of Civil Procedure

4(i)(3). On July 24, Plaintiff filed an Amended Complaint, which simply names as Defendants

in its caption “U.S. Parole Commission, et., al.” Am. Compl. at 1. The Court assumed at that

point that Plaintiff wished to proceed against all Defendants in the fashion articulated in the

original Complaint. Three days later, however, Plaintiff filed a “Notice to the Court,” in which

he mentioned his efforts at service and then concluded, “[P]laintiff will suspend his prosecution

of these various officials being sued in their individual[] capacities, unless circumstances

change.” Notice at 2.

       Defendants have now moved to dismiss Plaintiff’s suit, asserting a number of infirmities.


II.    Legal Standard


       To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(1), Plaintiff bears the burden

of proving that the Court has subject-matter jurisdiction to hear his claims. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior,

231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is

acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police

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v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual

allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in

resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in

original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may

consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack

of jurisdiction . . . . ” Jerome Stevens Pharms, Inc. v. F.D.A., 402 F.3d 1249, 1253 (D.C. Cir.

2005); see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005)

(“given the present posture of this case — a dismissal under Rule 12(b)(1) on ripeness grounds

— the court may consider materials outside the pleadings”); Herbert v. Nat’l Academy of

Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).


III.   Analysis


       Although Plaintiff never identifies any actual cause of action, the Court, in an effort to

extend the benefit of the doubt to a pro se litigant, will treat his suit as raising claims under 42

U.S.C. § 1983 for violations of his constitutional rights and under the Federal Tort Claims Act

for tortious conduct. Unfortunately for Plaintiff, neither claim is availing.


       A. Section 1983


       Defendants first argue that “Plaintiff’s Section 1983 claim against the USPC’s employees

should be dismissed because these employees are federal executive branch employees who at all

times acted under color of federal, not state, law.” Mot. at 8. They are indeed correct that

“Section 1983 does not apply to federal officials acting under color of federal law.” Settles v.

U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005). This issue is somewhat more


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nuanced than it would first appear, however, because although the USPC is a federal entity,

Congress required it to “assume the jurisdiction and authority of the Board of Parole of the

District of Columbia . . . in the case of any imprisoned felon who is eligible for parole or

reparole under the District of Columbia Code.” National Capital Revitalization and Self-

Government Improvement Act of 1997, Pub. L. No. 105-33, § 11231, codified at D.C. Code §

24-131(a)(1). In dealing with such D.C. prisoners, therefore, it is not correct to argue that USPC

employees are always federal employees who act under color of federal, not state, law. As

Settles notes, “[A] cause of action under § 1983 will lie against the individual members of the

Commission when acting pursuant to the Revitalization Act.” 429 F.3d at 1104 (citation

omitted).

        The Court need proceed no farther into this thicket, however, because Plaintiff has

expressly disclaimed any interest in pursuing this case against any Defendant in his individual

capacity. See Notice at 2. A suit against a Defendant in his official capacity, furthermore, is

equivalent to a suit against the entity itself. See Atchinson v. District of Columbia, 73 F.3d 418,

424 (D.C. Cir. 1996) (“A section 1983 suit for damages against municipal officials in their

official capacities is thus equivalent to a suit against the municipality itself.”) (citation omitted);

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (official-capacity suits “generally represent

only another way of pleading an action against an entity of which an officer is an agent” and

should “be treated as a suit against the entity”) (citations and internal quotation marks omitted).

As a result, the Court must treat Plaintiff’s § 1983 claim as one against the USPC only.

        Yet, the doctrine of sovereign immunity blocks such a claim. Settles addressed the

precise question of whether such immunity existed in a suit against the USPC:

                We find no clear statement that would make the [Parole]
                Commission itself subject to liability under § 1983. The 1979

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               amendment making § 1983 applicable to persons acting under
               color of the laws of the District of Columbia . . . provides no
               statement or other indication that Congress intended to subject
               federal entities to § 1983 liability. . . . [¶] Nor does § 11231(a)(1)
               of the Revitalization Act, 111 Stat. at 745, indicate that the
               Congress intended to subject the Commission to § 1983 liability.
               The plain language adds to the Commission's jurisdiction, but does
               not state that, in exercising its new jurisdiction over D.C. Code
               offenders, the Commission would be acting as the D.C. Parole
               Board, which the Revitalization Act abolished. . . . Despite its
               role in administering parole for D.C. Code offenders, the
               Commission retains the immunity it is due as an arm of the federal
               sovereign.


429 F.3d at 1105-06 (internal citations omitted). As the USPC is entitled to sovereign immunity,

the Court has no subject-matter jurisdiction to entertain Plaintiff’s § 1983 claim against it.


       B. Federal Tort Claims Act


       Another potential claim encompassed in Plaintiff’s Amended Complaint is one under the

Federal Tort Claims Act, 28 U.S.C. § 1346(b). “Under the FTCA, plaintiffs may sue the United

States in federal court for state-law torts committed by government employees within the scope

of their employment. But the FTCA does not create a statutory cause of action against individual

government employees.” Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008) (internal

citation omitted). A claim must, therefore, be treated as one against the United States itself.

        If Plaintiff is alleging a constitutional tort, such a claim is not cognizable under §

1346(b) because “the United States simply has not rendered itself liable under § 1346(b) for

constitutional tort claims.” F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994). Alternatively, to

the extent Plaintiff’s FTCA claim arises from Defendants’ alleged violation of 28 C.F.R. § 2.101,

which he cites, see Am. Compl. at 2, such a claim is not actionable under § 1346(b). Under the

FTCA, the United States may be sued only “under circumstances where . . . a private person[ ]


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would be liable to the claimant in accordance with the law of the place where the act or omission

occurred.” 28 U.S.C. § 1346(b)(1). Because “a private person could not be sued under District

of Columbia law for failing to adhere to a legal requirement imposed on a federal agency, here

the requirement that parolees receive timely parole revocation decisions,” Pate v. United States,

328 F. Supp. 2d 62, 76 (D.D.C. 2004), Plaintiff’s FTCA claim arising from an alleged violation

of § 2.101 is not actionable.

       His only possible avenue of relief under the FTCA is thus via a state-law claim, such as

wrongful imprisonment. Yet, the waiver of sovereign immunity under the FTCA is limited, and

it requires that Plaintiff exhaust any administrative remedies before filing suit. See 28 U.S.C. §

2675; see also McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants

from bringing suit in federal court until they have exhausted their administrative remedies.”).

Plaintiff bears the burden of proving exhaustion, see GAF Corp. v. United States, 818 F.2d 901,

919 (D.C. Cir. 1987), which is a jurisdictional prerequisite to filing an FTCA lawsuit. See

McNeil, 508 U.S. at 113

       In this case, before filing suit, Plaintiff sent an intent-to-sue letter to Defendants on May

11, 2012. See Mot., Attach. 3 (Declaration of Johanna E. Markind), Exh. 20 (Plaintiff’s Letter).

Four days later, the USPC’s General Counsel responded to Plaintiff’s letter by informing him

that the proper procedure for filing an administrative claim against the United States is to

complete an SF-95 form, which she attached to the letter. See Markind Decl., Exh. 21

(Chickinell Letter). Defendants assert that the USPC has no record that Plaintiff ever submitted

an SF-95 form, and Plaintiff has not indicated or provided any documentation to the contrary.

See Mot. at 19-20. Defendants also note that a search of the USPC’s administrative claims

reveals that it received no SF-95 forms, nor any other administrative claim, from Plaintiff



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between May 11, 2012, and August of 2012. See Markind Decl., ¶ 14. Because Plaintiff failed

to exhaust the required administrative procedures before filing suit, this Court lacks jurisdiction

over his claims. See Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir.

1997) (FTCA’s requirement to exhaust administrative remedies is jurisdictional). As such,

Plaintiff’s FTCA claim must be dismissed.


IV.    Conclusion


       For the foregoing reasons, the Court will issue a contemporaneous Order dismissing the

case without prejudice for lack of subject-matter jurisdiction.

                                                      /s/ James E. Boasberg
                                                      JAMES E. BOASBERG
                                                      United States District Judge
Date: October 26, 2012




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