                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


JOHNNY RAY CHANDLER, SR.,          )
                                   )
               Plaintiff,          )
                                   )
     v.                            )                               Civil Action No. 16-1490 (BAH)
                                   )
FEDERAL BUREAU OF PRISONS, et al., )
                                   )
               Defendants.         )


                                    MEMORANDUM OPINION

       This matter is before the Court on Defendants’ Motion to Dismiss or, Alternatively, for

Summary Judgment, ECF No. 14. For the reasons discussed below, the motion will be granted. 1

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”). Defs.’ Mem. of P. & A. in Support of

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

According to the plaintiff, on February 27, 2016 at approximately 3:30 p.m., he was

experiencing chest pains. Comp. at 2. He requested medical assistance, and “Ms. C. Olguin,

R.N., was the medical staff on duty.” Id. “Even though she was notified of [the plaintiff’s]

condition, [she] never came [and the plaintiff] suffered with pain and anguish all night long.” Id.

       The plaintiff deems defendant Olguin “guilty of medical negligence, and the BOP . . .

guilty of breach of contract” stemming from its “binding contract with the District of Columbia


1
       The defendants’ Motion for Extension of Time to File Reply, ECF No. 16, will be denied as moot.
                                                      1
to house and provide proper medical care and treatment to the prisoners of the District of

Columbia, including the plaintiff, id. at 1-2, who has “a heart condition known as D.V.C,” id. at

2. He demands $100,000.00 from each defendant and injunctive relief in the form of a 180-day

suspension without pay for defendant Olguin. Id.

        The BOP’s Administrative Remedy Program is the means by which inmates may “seek

formal review of any aspect of their confinement.” Ellington 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].”

Id. ¶ 5. The BOP’s declarant states that, of the 57 formal complaints submitted by the plaintiff

between February 27, 2016 and October 1, 2016, Ellington Decl. ¶ 7, “none . . . relates to the

claims alleged in this litigation,” id. ¶ 9. “In fact, none . . . relates to an incident occurring on

February 27, 2016.” Id. Based on her review, the declarant avers that the “[p]laintiff did not

exhaust his remedies as related to complaints against defendants raised in the present case

through BOP’s Administrative Remedy Program.” Id. ¶ 10.

        On March 10, 2016, the plaintiff filed an administrative tort claim “with BOP, dated

March 10, 2016, alleging he was injured as a result of tortious conduct on February 27, 2016.”

Id. ¶ 11; see id., Ex. (Claim for Damage, Injury, or Death). BOP initiated two separate

investigations, the first (Claim No. 2016-03653) on March 21, 2016, and the second (Claim No.

2016-03356) on April 11, 2016. Id. ¶¶ 13-15. BOP denied Claim No. 2016-03653 on June 22,

2016, and Claim No. 2016-03356 on September 21, 2016. Id. ¶¶ 16-17.




                                                    2
        On March 21, 2016, in the Superior Court of the District of Columbia, the plaintiff filed

this civil action, which the defendants removed to this Court on July 20, 2016. 2

II. DISCUSSION

        Pleadings by pro se litigants are construed liberally. Erickson v. Pardus, 551 U.S. 89, 94

(2007); United States v. Arrington, 763 F.3d 17, 22 (D.C. Cir. 2014) (noting ‘“obligation to

construe pro se filings liberally’” (quoting Toolasprashad v. Bureau of Prisons, 286 F.3d 576,

583 (D.C. Cir. 2002)). Consequently, given the nature of the plaintiff’s factual allegations, the

Court construes the plaintiff’s complaint as asserting federal claims under the Federal Torts

Claims Act (“FTCA”), see 28 U.S.C. § 2675(a), and the Civil Rights Act, 42 U.S.C. §1983, as

well as a breach of contract claim against the BOP.

        Defendants have filed a motion to dismiss or, alternatively, for summary judgment. On

November 14, 2016, the Court issued an Order advising the plaintiff of his 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 7, 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).




2
        The plaintiff’s “abuse of the court system has been so systematic that he may not file any
civil action in this Court without first obtaining permission.” Chandler v. James, 783 F. Supp.
2d 33, 36 (D.D.C. 2011) (citing Chandler v. D.C. Dep't of Corr., Civil Action No. 95-2366,
Memorandum Order (D.D.C. Mar. 11, 1996)). Moreover, his “legal complaints have been so
numerous and so lacking in merit that he is now barred, except in extraordinary circumstances,
from filing new lawsuits while in prison without first paying the full amount of any
administrative filing fee.” Id. The plaintiff’s initiation of new lawsuits in Superior Court has, to
date, circumvented the litigation pre-conditions imposed on him by this Court.
                                                   3
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. However, the United States Court of Appeals for the District of Columbia Circuit

recently has raised concerns about the use of Local Civil Rule 7(b) to grant an unopposed

motions 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.

       If the Court were to grant the defendants’ motion to dismiss as conceded, it “effectively

places the burden of persuasion on the [plaintiff because,] when he fails to respond, he loses.”

Cohen, 819 F.3d at 481. Further, such treatment of a Rule 12(b)(6) motion “risks circumventing

the clear preference of the Federal Rules to resolve disputes on their merits.” Id. at 482.

Similarly, if the Court were to grant the defendants’ motion for summary judgment as conceded,

it erroneously shifts the burden to the plaintiff when “[t]he burden is always on [the defendants]

to demonstrate why summary judgment is warranted.” Winston & Strawn, 2016 WL 7174125, at

*1. And the Court “must always determine for itself whether the record and any undisputed

material facts justify granting summary judgment.” Grimes v. District of Columbia, 794 F.3d 83,

97 (D.C. Cir. 2015) (citation omitted) (Griffith, J., concurring).


                                                  4
        In this case, it is clear that the plaintiff’s own conduct in ignoring the deadline set by the

Court has frustrated resolution of the defendants’ motion. Nevertheless, in light of the D.C.

Circuit’s recent rulings, the Court briefly addresses the merits of the defendants’ motion.

        A. The Plaintiff Failed to Exhaust His Administrative Remedies

                1. Exhaustion Under the FTCA

        The Court treats the plaintiff’s negligence claim as one brought under the FTCA and

accepts the representation that defendant “Cathlin Olguin was an employee of the Government

and were acting within the scope of her employment for the [BOP] at the time of the allegations

stated in Plaintiff’s Complaint.” Certification, ECF No. 1-2. In these circumstances, the Court

proceeds as if the plaintiff had brought his claim against the United States directly, such that his

only route to recovery is the FTCA. 3

        “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 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).


3
        The United States of America is the only proper defendant in a suit under the FTCA.
See, e.g., Hall v. Admin. Office of U.S. Courts, 496 F. Supp. 2d 203, 206 (D.D.C. 2007). Even
though this pro se plaintiff has not named the United States as a party, the Court overlooks this
pleading defect and instead treats plaintiff’s claim as if it had been brought against the United
States directly. See, e.g., Hui v. Castaneda, 559 U.S. 799, 810 (2010).

                                                   5
       There are limitations under and exceptions to the FTCA which doom the plaintiff’s

FTCA 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.
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 a claimant’s “fail[ure] to

heed that clear statutory command” warrants dismissal of his claim. McNeil v. United States,

508 U.S. 106, 113 (1993). Here, defendants argue that the plaintiff failed to exhaust his

administrative remedies because he filed his complaint in the Superior Court prematurely. See

Defs.’ Mem. at 7.

       Although the BOP received a single administrative tort claim from the plaintiff, it opened

two separate investigations, the first on March 21, 2016 and the second on April 11, 2016. See

Ellington Decl. ¶¶ 13-15. The six-month time period within which the BOP was required to

respond to the first, Claim No. 2016-03356, would have expired on September 20, 2016. See id.,

Ex. (Letter to the plaintiff from Richard W. Schott, Regional Counsel, North Central Regional

Office, BOP, dated April 8, 2016). Likewise, the BOP’s deadline with respect to Claim No.

2016-03653 would have been October 10, 2016. See id., Ex. (Letter to the plaintiff rom Richard

W. Schott, Regional Counsel, North Central Regional Office, BOP, dated April 26, 2016). The

plaintiff filed his complaint in the Superior Court on March 21, 2016, long before either deadline

had passed. Thus, the defendants have demonstrated that the plaintiff failed to exhaust his
                                                   6
administrative remedies before filing this civil action, and he cannot cure this defect by

amending his complaint at a later date. See, e.g., Duplan v. Harper, 188 F.3d 1195, 1199 (10th

Cir. 1999) (“Allowing claimants generally to bring suit under the FTCA before exhausting their

administrative remedies and to cure the jurisdictional defect by filing an amended complaint

would render the exhaustion requirement meaningless and impose an unnecessary burden on the

judicial system.”); Edwards v. District of Columbia, 616 F. Supp. 2d 112, 117 (D.D.C. 2009).

               2. Exhaustion Under the PLRA

       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

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). Exhaustion under the PLRA is an affirmative defense, Jones v. Bock, 549 U.S.

199, 216 (2007), which “the defendants have the burden of pleading and proving,” Brengettcy v.

                                                   7
Horton, 423 F.3d 674, 682 (7th Cir. 2005) (quoting Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.

2004) (internal quotation marks omitted)). Where, as here, defendants present and the Court

considers matters outside of the pleadings, the defendants’ motion is treated as one for summary

judgment under Rule 56. See, e.g., Johnson v. District of Columbia, 869 F. Supp. 2d 34, 37

(D.D.C. 2012); Miller v. Fed. Bureau of Prisons, 703 F. Supp. 2d 8, 15 (D.D.C. 2010).

       The defendants demonstrate that none of the administrative remedy requests submitted by

the plaintiff between February 27, 2016 and October 1, 2016 pertain to the medical treatment he

allegedly received (or did not receive) at ADX Florence on or about February 27, 2016. See

Ellington Decl. ¶¶ 7-10. Thus, the defendants demonstrate that the plaintiff failed to exhaust his

administrative remedies under the FTCA by filing his complaint too soon, and failed to exhaust

under the PLRA by filing no administrative remedy request at all.

       B. The Court Lacks Jurisdiction Over the Plaintiff’s Contract Claim

       The plaintiff alleges that the BOP breached a contractual duty to provide him medical

care. A contract claim against a federal government agency may be brought in under the Tucker

Act. See 28 U.S.C. § 1491. Either the Court of Federal Claims or a federal district court has

jurisdiction over a claim seeking monetary damages of $10,000 or less. See 28 U.S.C. § 1346(a).

Only the Court of Federal Claims has jurisdiction over a claim in excess of $10,000, however.

See 28 U.S.C. § 1491(a)(2). Here, the plaintiff demands monetary damages totaling $ 200,000,

and his claim far exceeds this Court’s jurisdiction. See, e.g., Chandler v. Kiely, 539 F. Supp. 2d

220, 224 (D.D.C. 2008) (“As noted above, Mr. Chandler brings suit against the United States on

a contract theory, and he seeks damages in excess of $10,000. As a result, jurisdiction over his

claim lies with the Court of Federal Claims – not with this Court.” (citations omitted)).




                                                 8
III. CONCLUSION

       The Court concludes that the plaintiff failed to exhaust his administrative remedies under

the FTCA and the PLRA prior to filing this lawsuit, and that it lacks subject matter jurisdiction

over the plaintiff’s contract claim. Accordingly, the Court grants the defendants’ motion in its

entirety. An Order is issued separately.




DATE: December 23, 2016                         /s/   Beryl A. Howell
                                             BERYL A. HOWELL
                                             Chief Judge




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