                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

ANDREW APPLEWHAITE,                            :
                                               :
               Plaintiff,                      :    Civil Action No.:       09-2195 (RMU)
                                               :
               v.                              :    Re Document No.:       6
                                               :
MATTHEW SHINTON et al.,                        :
                                               :
               Defendants.                     :

                                  MEMORANDUM OPINION

      SUBSTITUTING THE UNITED STATES IN THE PLACE OF THE FEDERAL DEFENDANTS;
               GRANTING THE FEDERAL DEFENDANTS’ MOTION TO DISMISS

                                       I. INTRODUCTION

       The pro se plaintiff, an individual convicted of a misdemeanor in the Superior Court of

the District of Columbia, commenced this action alleging misconduct on the part of

investigators, prosecutors and witnesses allegedly responsible for his arrest and conviction.

Defendants Erin Walsh, Gail Bolsover and Alan Boyd (“the federal defendants”) have moved to

dismiss all of the claims against them. As a threshold matter, they assert that the United States

should be substituted in their place as the sole federal defendant pursuant to the Federal

Employees Liability Reform and Tort Compensation Act of 1988 (“the Westfall Act”), 28 U.S.C.

§ 2679. Moreover, they assert that the plaintiff’s claims against them must be dismissed because

the plaintiff has not alleged that he presented his claims to the appropriate agency prior to filing

suit, as required by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). The federal

defendants also argue that the plaintiff’s claims against them are not actionable under the FTCA

and must therefore be dismissed. For the reasons discussed below, the court substitutes the
United States as the sole federal defendant and dismisses without prejudice the plaintiff’s claims

against the federal defendants.



                       II. FACTUAL & PROCEDURAL BACKGROUND

         On August 25, 2009, the plaintiff was convicted of a misdemeanor in the D.C. Superior

Court for writing a threatening letter to the Mayor of the District of Columbia. See Fed. Defs.’

Mot. at 1 & Ex. 2.1 The plaintiff was sentenced to forty-five days of imprisonment, with

execution of the sentence suspended, and one year of supervised release. Fed. Defs.’ Mot. at 1 &

Ex. 2.

         On October 15, 2009, the plaintiff filed a complaint in the Small Claims Branch of the

D.C. Superior Court against the following defendants: Matthew Shinton, a detective with the

D.C. Metropolitan Police Department who allegedly arrested the defendant; Luann Winson, an

Assistant Manager with the D.C. Housing Authority; and Erin Walsh, the Assistant United States

Attorney (“AUSA”) who prosecuted the plaintiff’s misdemeanor case. See Fed. Defs.’ Mot., Ex.

3. Although the complaint alleged misconduct by Shinton and Winston, it contained no

allegations whatsoever regarding AUSA Walsh. See id.

         On October 19, 2009, the plaintiff amended his complaint, adding as defendants U.S.

Postal Inspection Service Analyst Gail Bolsover and AUSA Alan Boyd, both of whom had

assisted in the investigation and misdemeanor prosecution of the plaintiff. Fed. Defs.’ Mot. at 2

& Ex. 4. The allegations set forth in the amended complaint were identical to the allegations in




1
         Because the plaintiff’s terse complaint and brief opposition provide almost no information
         regarding the facts underlying the case, see generally Fed. Defs.’ Mot., Ex. 5; Pl.’s Opp’n, the
         court relies on the defendants’ motion to dismiss for the necessary factual and procedural
         background.


                                                      2
the initial complaint and contained no assertions whatsoever regarding AUSA Walsh, Inspector

Bolsover or AUSA Boyd. See Fed. Defs.’ Mot., Ex. 4.

       On November 6, 2009, the plaintiff filed yet another amended complaint. Fed. Defs.’

Mot., Ex. 5. Beyond adding supplemental address information for the defendants, this second

amended complaint was substantively identical to the earlier complaints. See id. Like the first

amended complaint, the second amended complaint also contained no allegations regarding the

federal defendants.

       The federal defendants removed the small claims action to this court on November 19,

2009. See generally Notice of Removal. On January 6, 2010, the federal defendants filed this

motion to dismiss. See generally Fed. Defs.’ Mot. to Dismiss. They argue first that the United

States should be substituted in their place as the defendant in this action pursuant to the Westfall

Act because they were acting within the scope of their employment at the time of the incidents

alleged in the complaint. See generally id. Moreover, the federal defendants contend that all of

the plaintiff’s claims against them must be dismissed because the plaintiff has failed to allege

that he presented his claims to the appropriate administrative agency prior to commencing suit,

as required under the FTCA. See generally id. Finally, the federal defendants contend that the

plaintiff has failed to state a cognizable claim against them.2 See generally id. With the motion

ripe for adjudication, the court turns to the applicable legal standards and the parties’ arguments.




2
       Because, as discussed below, the court dismisses the plaintiff’s claims against the federal
       defendants based on his failure to plead exhaustion of his administrative remedies, the court need
       not reach this latter argument.


                                                   3
                                          III. ANALYSIS

           A. The Court Substitutes the United States for the Federal Defendants

       As an initial matter, the federal defendants contend that the United States should be

substituted as the exclusive federal defendant pursuant to the Westfall Act. Fed. Defs.’ Mot. at

5-7. The plaintiff does not address this argument in his opposition. See generally Pl.s’ Opp’n.

       The Westfall Act confers immunity on federal employees “by making an FTCA action

against the Government the exclusive remedy for torts committed by Government employees in

the scope of their employment.” United States v. Smith, 499 U.S. 160, 163 (1991); 28 U.S.C. §

2679(b)(1). The statute provides that

       [u]pon certification by the Attorney General that the defendant employee was
       acting within the scope of his office or employment at the time of the incident out
       of which the claim arose, any civil action or proceeding commenced upon such
       claim in a United States district court shall be deemed an action against the United
       States under the provisions of this title and all references thereto, and the United
       States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1).

       In a case in which the Attorney General, or by designation the United States Attorney in

the district where the claim is brought, files a certification that the original defendant was acting

within the scope of his employment, such certification has the following consequences: (1) if the

suit originated in state court, then the Attorney General or his designee is required to remove it to

federal court; (2) the United States shall be substituted as the sole defendant; and (3) if the

plaintiff has not brought suit pursuant to the FTCA, the suit converts to one against the United

States under the FTCA. 28 U.S.C. § 2679(d)(2); 28 C.F.R. § 15.3(a) (2002); Haddon v. United

States, 68 F.3d 1420, 1423 (D.C. Cir. 1995), abrogated on other grounds by Osborn v. Haley,

549 U.S. 225 (2007).




                                                  4
       In this case, the federal defendants have submitted a certification from Rudolph

Contreras, Chief of the Civil Division of the United States Attorney’s Office for the District of

Columbia, in which he certifies that AUSA Walsh, AUSA Boyd and Inspector Bolsover were

each acting within the scope of their employment with the federal government at the time of the

incidents alleged in the complaint. See Defs.’ Mot., Ex. 1. The plaintiff has offered nothing to

challenge that certification. See generally Pl.’s Opp’n. Accordingly, the court substitutes the

United States for the individual federal defendants.3

        B. The Court Dismisses the Claims Asserted Against the Federal Defendants

       The federal defendants further contend that the claims asserted against them (and now,

following substitution, against the United States) must be dismissed because the plaintiff has

failed to allege that he presented his claims to the appropriate federal agency before filing suit, as

required by the FTCA. See Fed. Defs.’ Mot. at 7-9. The plaintiff does not dispute that he failed

to exhaust his administrative remedies before filing suit, though he does suggest that the FTCA

should not be used to “protect [the] wil[l]ful negligence of federal employees acting fraudulently

within the scope of their duties.” Pl.’s Opp’n at 1.

       The FTCA “grants federal district courts jurisdiction over claims arising from certain

torts committed by federal employees in the scope of their employment, and waives the

government’s sovereign immunity from such claims.” Sloan v. Dep’t of Housing & Urban Dev.,

236 F.3d 756, 759 (D.C. Cir. 2001) (citing 28 U.S.C. §§ 1346(b) & 2674). “The FTCA bars

claimants from bringing suit in federal court until they have exhausted their administrative

remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993) (upholding the district court’s

dismissal of an unexhausted FTCA claim for lack of jurisdiction); accord Grant v. Sec’y, U.S.

3
       Although the plaintiff suggests in his opposition that this case was improperly removed, see Pl.’s
       Opp’n at 2, the Contreras certification is conclusive for purposes of removal. See Gutierrez de
       Martinez v. Lamagno, 515 U.S. 417, 432 (1995) (citing 28 U.s.C. § 2679(d)).


                                                   5
Dep’t of Veterans Affairs, 2004 WL 287125, at *1 (D.C. Cir. Feb. 4, 2004). Under the FTCA,

exhaustion occurs once a claimant has presented the appropriate federal agency with a claim

describing the alleged injury with particularity and setting forth a “sum certain” of damages, and

the agency has (1) denied the claim in writing or (2) failed to provide a final disposition within

six months of the claim’s filing. 28 U.S.C. § 2675(a); Grant, 2004 WL 287125, at *1.

        None of the plaintiff’s three complaints contains any indication that the plaintiff

submitted his claim to any federal agency before commencing this action. See Fed. Def.’s Mot.,

Exs. 1-3. Nor does the plaintiff assert in his opposition to the federal defendants’ motion that he

exhausted his administrative remedies prior to filing suit. See generally Pl.’s Opp’n. Although

the plaintiff contends that it would be unjust for the federal defendants to avoid liability on

procedural grounds, the exhaustion requirement set forth in the FTCA is not a useful formality,

but serves an important purpose by “allow[ing] the agency to investigate and assess the strength

of the claim [and] make an informed decision whether to attempt settlement negotiations.”

Grant, 2004 WL 287125, at *1 (citing GAF Corp. v. United States, 818 F.2d 901, 919-20 (D.C.

Cir. 1987)) (rejecting the plaintiff’s argument that “legal technicalities” should not be used to

dismiss the action of a pro se litigant).

        Accordingly, the court grants the federal defendants’ motion to dismiss the plaintiff’s

claims against them based on the plaintiff’s failure to plead exhaustion of his administrative

remedies, and dismisses without prejudice all claims asserted against the federal defendants. See

Johnson v. Allen, 2005 WL 607911, at *2 (D.D.C. Mar. 14, 2005) (dismissing the plaintiff’s

FTCA claim without prejudice based on the plaintiff’s failure to exhaust his administrative

remedies).




                                                  6
                                      IV. CONCLUSION

       For the foregoing reason, the court grants the federal defendants’ motion to dismiss,

substitutes the United States as the sole federal defendant in this matter and dismisses without

prejudice the plaintiffs’ claims against the federal defendants. An Order consistent with this

Memorandum Opinion is separately and contemporaneously issued this 5th day of August, 2010.



                                                               RICARDO M. URBINA
                                                              United States District Judge




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