                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

KENNETH HAMMOND,                              :
                                              :
               Plaintiff,                     :      Civil Action No.:       08-0326 (RMU)
                                              :
               v.                             :      Document No.:           6
                                              :
D.C. RECORD CENTER                            :
                                              :
               and                            :
                                              :
FEDERAL BUREAU OF PRISONS,                    :
                                              :
               Defendants.                    :

                                  MEMORANDUM OPINION

              GRANTING IN PART AND DENYING IN PART, WITHOUT PREJUDICE,
                         THE DEFENDANTS’ MOTION TO DISMISS

                                      I. INTRODUCTION

       This case comes before the court on the defendants’ motion to dismiss or in the

alternative for summary judgment. The plaintiff, who was sentenced in the District of Columbia

Superior Court to serve 15 ½ years for various crimes, alleges that the defendants violated his

constitutional rights by denying him good-time credits that would have reduced his sentence.

The defendants lodge several objections to the plaintiff’s complaint that go largely unanswered.

Because the plaintiff names improper defendants and because he does not state a cognizable

claim under 42 U.S.C. § 1983 or under the Eighth and Fourteenth Amendments, the court grants

the defendants’ motion to dismiss these improper parties and claims. But because the plaintiff

raises for the first time in his opposition to the defendants’ motion new allegations under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq., and names two new defendants to
his Fifth Amendment claim, the court denies, without prejudice, the defendants’ motion as to

these claims so that the court may receive the benefit of full briefing.



                      II. FACTUAL & PROCEDURAL BACKGROUND

       The defendants’ unopposed statement of facts indicates that the District of Columbia

Superior Court sentenced the plaintiff to 3 to 9 years imprisonment for robbery on July 13, 1992.

Defs.’ Statement of Material Facts (“Defs.’ Statement”) ¶ 2. Four days later, the District of

Columbia Superior Court sentenced the plaintiff to 3 to 6 years imprisonment for burglary and

180 days for violating the Bail Reform Act. Id. ¶ 3. The court ordered that these sentences run

consecutively, for a maximum term of 15 years and 180 days. Id. ¶ 4.

       On April 26, 1996, the Bureau of Prisons (“BOP”) released the plaintiff on parole, but on

February 25, 1998, the District of Columbia Board of Parole issued an order revoking the

plaintiff’s parole due to a violation, and ordered the plaintiff to serve the balance of his sentence.

Id. ¶¶ 5-8 & n.3. The plaintiff filed a petition for a writ of habeas corpus on May 14, 2002 in the

Eastern District of Virginia. Id. ¶ 10. He alleged that he was being illegally detained because

the BOP miscalculated his good-time credits. Id. The court disagreed and denied the petition on

March 1, 2004. Id. ¶ 11.

       In January 2005, the BOP deducted 120 days of the plaintiff’s good-time credit for

“Escape” and “possessing Intoxicants.” Id. ¶¶ 13-14. The plaintiff alleges in his current

complaint and opposition that this forfeiture was illegal. 1 Compl. ¶ 1. The BOP released the

plaintiff on July 12, 2005, but the plaintiff was to continue on parole until May 29, 2009. Defs.’

Statement ¶ 15.


1
        The plaintiff contends that the BOP illegally deprived him of 150 days of good-time credit.
        Compl. ¶ 1.


                                                   2
       On February 23, 2007, the plaintiff was arrested on a warrant for violation of parole, and

on April 23, 2007, he admitted violating his parole and accepted a 13-month sentence. Id. ¶¶ 17,

19. He was subsequently released on March 20, 2008. Id. ¶ 29. Before his release, however, on

January 25, 2008, the plaintiff filed a complaint in the Superior Court of the District of

Columbia, alleging violations of the Fifth, Eighth and Fourteenth Amendments based on the

purported illegal forfeiture of 150 days of good-time credit. Compl. ¶ 1. The BOP removed the

action to this court and filed a motion to dismiss or in the alternative for summary judgment on

April 3, 2008. See generally Defs.’ Mot. The plaintiff responded on May 2, 2008, adding a

claim under the FTCA and two new defendants. See generally Pl.’s Opp’n. The court now turns

to address the defendants’ motion.



                                         III. ANALYSIS

                    A. Legal Standard for Rule 12(b)(6) Motion to Dismiss

       A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing

FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice

pleading is made possible by the liberal opportunity for discovery and the other pre-trial

procedures established by the Rules to disclose more precisely the basis of both claim and

defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48

(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of

his prima facie case in the complaint, Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14




                                                  3
(2002), or “plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211

F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

       Yet, the plaintiff must allege “any set of facts consistent with the allegations.” Bell Atl.

Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007) (abrogating the oft-quoted language from

Conley, 355 U.S. at 45-56, instructing courts not to dismiss for failure to state a claim unless it

appears beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”);

Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)

(affirming that “a complaint needs some information about the circumstances giving rise to the

claims”). While these facts must “possess enough heft to ‘sho[w] that the pleader is entitled to

relief,’” a complaint “does not need detailed factual allegations.” Twombly, 127 S. Ct. at 1964,

1966. In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual

allegations – including mixed questions of law and fact – as true and draw all reasonable

inferences therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67

(D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.

2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the

court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C.

Cir. 2004); Browning, 292 F.3d at 242.

    B. The Court Treats the Plaintiff’s Opposition as an Amendment to the Complaint

       The court first addresses the new claims and parties added in the plaintiff’s opposition to

the defendants’ motion. Specifically, the plaintiff adds a claim under the FTCA and adds two




                                                  4
defendants, Ebony Hill 2 and D. Livingston. 3 Pl.’s Opp’n at 2-3. This Circuit has described four

factors to consider in determining whether the court should treat statements made in response to

a motion as an amendment to the complaint. Richardson v. United States, 193 F.3d 545, 548-49

(D.C. Cir. 1999) (reversing a district court’s decision to dismiss a pro se plaintiff’s complaint

because the court failed to consider the plaintiff’s response to the defendant’s motion to dismiss

an amendment to the complaint). Here, the four factors clearly favor amending the complaint:

(1) the plaintiff is pro se; (2) he could have amended his complaint as of right at the time he filed

his opposition; (3) he intended to bring claims against the individual defendants; and (4) the

defendants would not be unduly prejudiced. Accordingly, the court treats the plaintiff’s

opposition as an amendment to the complaint, and addresses all of the plaintiff’s claims against

all of the defendants in the analysis below. 4

    C. Because the Plaintiff Fails to Allege that a Person Acting Under Color of State Law
            Violated his Rights, the Court Dismiss the Plaintiff’s § 1983 Claims

        The defendants allege that the plaintiff’s § 1983 claims should be dismissed because he

has not stated that a person acting under color of state law violated his rights. Defs.’ Mot. at 5.

Furthermore, the defendants aver that the plaintiff may not bring a § 1983 action against the

BOP. Id. To his credit, the plaintiff acknowledges that “federal officials . . . may not be sued

under § 1983,” but nevertheless asserts that the claim is still valid as a federal question. Pl.’s

2
        Hill is further described as “a staff member of the [Community Correctional Center] and also the
        person who sat on the [Center Disciplinary Committee] hearing as a chairperson.” Pl.’s Opp’n at
        5.
3
        Livingston, the plaintiff states, is the disciplinary hearing officer who “held a Disciplinary
        Hearing without the plaintiff being present.” Id. at 7.
4
        The defendants argue that the plaintiff’s claims against the individual defendants should be
        dismissed for failure to effect service of process. Defs.’ Reply at 8-9. Dismissal on such
        grounds, however, would not be in keeping with the greater leniency afforded pro se litigants.
        Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993) (requiring a district court to
        provide notice to pro se litigants of the consequences of inadequate service of process before
        dismissing the case).


                                                     5
Opp’n at 1-2. The law is well settled in this area, and the court dismisses the plaintiff’s § 1983

claims for failing to allege that a “deprivation was committed by a person acting under color of

state law.” West v. Atkins, 487 U.S. 42, 49 (1988); Glendora v. Sellers, 2003 WL 22890043, at

*1 (D.C. Cir. Nov. 25, 2003).

                              D. Constitutional Claims and the FTCA

       The plaintiff asserts violations of the Fifth, Eighth and Fourteenth Amendment. As to the

latter, the court must dismiss the plaintiff’s claims under the Fourteenth Amendment because the

Amendment only applies to the states, Bolling v. Sharpe, 347 U.S. 497, 499 (1954), and as

discussed above, the plaintiff’s allegations are confined to federal officials and agencies acting

under federal law, see generally Compl.; Pl.’s Opp’n. The plaintiff’s claims under the Eighth

Amendment do not fare any better because his allegations regarding “procedural irregularities

[that] occurred during his disciplinary proceeding do not involve the Eighth Amendment’s

protection against ‘the unnecessary and wanton infliction of pain.’” Brown v. Smith, 828 F.2d

1493, 1494-95 (10th Cir. 1987); see Inmates of Occoquan v. Barry, 850 F.2d 796, 796 (D.C. Cir.

1988) (noting that the “Eighth Amendment . . . requires an ‘unnecessary and wanton infliction of

pain,’ or punishments ‘grossly disproportionate to the severity of the crime’”). Accordingly, the

court dismisses the plaintiff’s claims under the Eighth and Fourteenth Amendments.

       The plaintiff’s remaining constitutional claims arise from the Fifth Amendment’s due

process protections. But, “[a]bsent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994) (declining to

extend a Bivens 5 cause of action against an agency of the Federal Government). The court

agrees with the defendants’ assertion that no waiver has been provided for constitutional claims


5
        Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
        (recognizing a private right of action against federal officials for constitutional violations).


                                                      6
and that this immunity also applies to federal employees sued in their official capacity. Johnson

v. United States, 2008 WL 5265711, at *7 (D.D.C. Dec. 11, 2008) (dismissing constitutional

claims for damages against the BOP and federal officials sued in their official capacity).

Consequently, the court dismisses the plaintiff’s Fifth Amendment claims except as alleged

against federal officials in their individual capacity.

       The plaintiff lodged his constitutional claims against the individual defendants and his

claim under the FTCA for the first time in his opposition to the defendants’ motion. Pl.’s Opp’n

at 2-3, 19. Because the parties have not fully briefed the court on the merits of these claims, 6 the

court denies in part and without prejudice the defendants’ motion.



                                          IV. CONCLUSION

       For the foregoing reasons the court grants in part and denies in part, without prejudice,

the defendants’ motion to dismiss. An Order consistent with this Memorandum Opinion is

separately and contemporaneously issued this 22nd day of January, 2009.



                                                                  RICARDO M. URBINA
                                                                 United States District Judge




6
        The defendants’ reply contains conclusory statements regarding the plaintiff’s claim under the
        FTCA, which are of little help to the court. Defs.’ Reply at 5-6 (stating that the plaintiff “has not
        alleged any ‘injury’ under the terms of the statute” and “has failed to set forth a sum-certain
        claim for damages”).


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