FILED
Novz azmz

UNITED STATES DISTRICT COURT Clerk, U.S. District & Bankruptcy
FOR THE DISTRICT OF COLUMBIA CO|I\'fS f0l` fhB DlSf|'lCf Of C(ll|lmbla

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David M. Young, )
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Plaintiff, )

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v. ) civil A@ri@n N<>.  

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Federal Bureau of Prisons et al. , )
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Defendants. )

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MEMORANDUM OPINION

This matter is before the Court on its initial review of plaintiff s complaint and
application to proceed in forma pauperis. "l`he application will be granted and the case will be
dismissed for lack of subject matter jurisdiction See Fed. R. Civ. P. l2(h)(3) (requiring
dismissal of an action "at any time" the Court determines that it lacks subject matter
jurisdiction).

Plaintiff, a prisoner at the Federal Prison Camp in Forrest City, Arkansas, sues the
Bureau of Prisons, the United States Marshals Service, and Assistant United States Attomey
George May “under the Federal Tort Claims Act (FTCA), for violation [sic] of a Constitutional
Right . . ., which caused psychological harm in the thought process during indictment
proceedings [in 2009], which led to convictions [when] petitioner was actually innocent."
Compl. at l. Plaintiff seeks $500,000 in monetary damages. Ia’. at 6.

The Court lacks jurisdiction over plaintiff constitutional claim because the United
States has not consented to be sued for constitutional torts under the Federal 'l`ort Claims Act, 28

U.S.C. §§ 1346, 2671-80. See 28 U.S.C. § l346(b)(1) (creating cause of action for personal

injury "caused by the negligent or wrongful act or omission of any [government] employee . . .
under circumstances where the United States, if a private person, would be liable to the claimant
. . . ."); Jones v. U.S., 296 Fed. Appx. 82, 83 (D.C. Cir. 2008) (per curiam) ("Congress has not
waived the United States's sovereign immunity as to constitutional tort claims.") (citing Clark v.
Library ofCongress, 750 F.2d 89, 103 n.31 (D.C. Cir. l984)).

'l`o the extent that plaintiff is claiming negligence, see Compl. at 2-3, he fares no better
for at least two reasons. First, an FTCA claim is cognizable only after the plaintiff has exhausted
his administrative remedies by "first present[ing] the claim to the appropriate Federal agency. . .
." 28 U.S.C. §2675. This exhaustion requirement is jurisdictional. See GAF Corp. v. United
States, 818 F.2d 901, 917-20 (D.C. Cir. 1987); Jackson v. United States, 730 F.2d 808, 809 (D.C.
Cir. 1984); Stokes v. U.S. Postal Service, 937 F. Supp. ll, 14 (D.D.C. 1996). Since plaintiff has
not indicated that he exhausted his administrative remedies under the FTCA, the complaint must
be dismissed for lack of subject matter jurisdiction. See Aba’urrahman v. Engstrom, 168
Fed.Appx. 445, 445 (D.C. Cir. 2005) (per curiam) ("[T]he district court properly dismissed case
[based on unexhausted FTCA claim] for lack of subject matter jurisdiction."); accord Jones, 296
Fed. Appx. at 83.

Second, this action is foreclosed because the underlying claims were adjudicated in a
prior action. See Young v. Fed. Bureau of Pri'sons, Civ. Action No. 11-412, slip op. (D.D.C.
Nov. 21, 2011) [Dkt. # 47] (granting same defendants’ motion to dismiss case arising out of
plaintiffs "pre-conviction detention" and his conviction and sentence). Under the doctrine of res
judicata, a final judgment on the merits in one action "bars any further claim based on the same
‘nucleus of facts’ . . .," Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984) (quoting

Expert EIec., Inc. v. Levine, 554 F.2d 1227, 1234 (D.C. Cir. 1977)), including claims "that could

have been raised in [the prior] action." Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)
(emphasis in original) (quoting AIlen v. McCurry, 449 U.S. 90, 94 (1980)). "While it is true that
res judicata is an affirmative defense, courts may dismiss sua sponte when they are on notice
that a claim has been previously decided because of the policy interest in avoiding ‘unnecessary
judicial waste.’ " Walker v. Seldman, 471 F. Supp. 2d 106, 114 n.l2 (D.D.C. 2007) (quoting
Arizona v. California, 530 U.S. 392, 412 (2000)). Since plaintiff could have brought his FTCA
claim in the prior action, he is foreclosed from bringing it in a new action. Hence, this case will

be dismissed with prejudice. A separate Order accompanies this Memorandum Op inion.

item

(}}ii\ted States District Judge
Date: November 653 , 2012 ` l

