                                                                                              FILED
                                                                                              DEC ~ 0 2J09
                                    UNITED STATES DISTRICT COURT
                                    FOR THE DISTRICT OF COLUMBIA                        Clerk, U.S. District and
                                                                                          Bankruptcy Courts
                                                        )
       Marc Edwin Applewhite,                           )
                                                        )
               Plaintiff,                               )
                                                        )
               v.                                       )     Civil Action No.      09 2439
                                                        )
       District of Columbia District Attorneys          )
       Office et aI.,                                   )
                                                        )
               Defendants.                              )


                                           MEMORANDUM OPINION

               Before the Court is the plaintiff s pro se complaint and application to proceed in forma

       pauperis. The application will be granted and the complaint will be dismissed because it seeks

       relief that is not available through a civil action.

               Plaintiff was indicted by a federal grand jury and convicted on a guilty plea for armed

       bank robbery in the United States District Court for the District of Columbia. CompI. at 3.

       Alleging that he should have been charged with no more than attempted armed bank robbery,

       plaintiff filed this action seeking $950,000 in damages and immediate release from his sentence

       of imprisonment. Id. at 3-4.

               A collateral challenge to a conviction and sentence imposed by a federal court must be

       brought by motion made under 28 U.S.C. § 2255, lodged with the court that imposed the

       judgment and sentence. 28 U.S.C. § 2255(a). The court's docket shows that the plaintiff has

       filed such a motion with the sentencing court, which is pending. See Applewhite v. USA., Civil

       Action 09-2293 (CKK) (D.D.C.).




1tJ)
        A suit for damages against the federal prosecutor's office that secured the indictment by a

grand jury is the equivalent ofa suit against the United States itself. Kentucky v. Graham, 473

U.S. 159, 165-66 (1985). The United States enjoys sovereign immunity from suit and may be

sued only where it has expressly waived its immunity and consented to suit. FDIC v. Meyer, 510

U.S. 471,475 (1994). The complaint does not identify any federal law or common-law duty that

was allegedly breached. In any case, the United States has not consented to suit for alleged

constitutional violations by its officials, id at 486, or to suit under the Federal Tort Claims Act,

28 U.S.C. §§ 2671-2680, if the suit arises from the performance ofa discretionary function, 28

U.S.C. § 2680(a), which includes a prosecutor's decision to seek an indictment and prosecute

charges, Moore v. Valder, 65 F.3d 189, 196-97 (D.C. Cir. 1995). A federal grand jury is not an

entity that may either sue or be sued. In short, the complaint does not identify any defendant as

to which this complaint may be maintained. Therefore, because it seeks damages from

defendants who are immune from suit, the complaint will be dismissed pursuant to 28 U.S.C.

§ 1915A(b)(2).
                                                            /'
        A separate order accompanies this memor dUJ;nopinion.




Date:   11/J-/ / 07                                               /
                                                      United States District Judge




                                                                                   ....,
