                                   UNITED STATES DISTRICT COURT
                                   FOR THE DISTRICT OF COLUMBIA

___________________________________
                                                      )
GEORGE E. CARTER-EL,                                  )
                                                      )
                      Plaintiff,                      )
                                                      )
                 v.                                   )      Civil Action No. 11-1107 (RBW)
                                                      )
DISTRICT OF COLUMBIA                                  )
DEPARTMENT OF CORRECTIONS                             )
et al.,                                               )
                                                      )
                Defendants.                           )
___________________________________                   )


                                      MEMORANDUM OPINION

       In this action brought pro se, the plaintiff is a District of Columbia prisoner suing the

District of Columbia Department of Corrections (“Department of Corrections”) and the United

States Parole Commission (“Parole Commission”) for allegedly “imposing an unlawful term of

parole without judicial authorization . . . .” Civil Rights and Federal Tort Claim Acts Pursuant to

42 U.SC. § 1983 and 28 U.SC. §§ 2671-2680 (“Compl.”) at 1. In dismissing an earlier action for

habeas corpus relief filed by the plaintiff based on the same events underlying this action, the

Court rejected the foregoing argument as “lack[ing] a basis in law and reason” because it found

that the Parole Commission properly exercised parole supervision over the plaintiff and did not

usurp the authority of the sentencing judge. Carter-El v. Fulwood, 819 F. Supp. 2d 38, 40-41

(D.D.C. 2011).

       The Parole Commission moves to dismiss the instant complaint for monetary damages

under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter

jurisdiction and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
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See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss

(“Def.’s Mem.”) [Dkt. # 9] at 1. The plaintiff has opposed the defendant’s motion and moves for

summary judgment under Rule 56. Plaintiff’s Opposition and/or Summary Judgment Pursuant to

Defendant’s Motion to Dismiss His Complaint (“Pl.’s Opp’n”) [Dkt. # 13]. Upon consideration

of the parties’ submissions, the Court will grant the federal defendant’s motion to dismiss and

will deny the plaintiff’s motion for summary judgment. In addition, the Court, acting sua sponte,

will dismiss the complaint against the Department of Corrections because it is not a suable entity.

                                           I. BACKGROUND

       The relevant facts as set forth in the Court’s published opinion issued in the earlier

related habeas case, Carter-El v. Fulwood, Civ. No. 10-1778 (RBW), are as follows.

                 On January 29, 1986, the petitioner pled guilty in the Superior Court
            of the District of Columbia to one count of armed robbery, and, on
            March 18, 1986, was sentenced to a prison term of nine to 27 years . . . .
            On December 15, 1987, the petitioner was convicted following a jury
            trial in Superior Court of two counts of armed robbery and one count of
            carrying a pistol without a license (“CPWL”); he was sentenced on
            March 24, 1988, to a prison term of 13 to 40 years . . . . On October 17,
            2001, following a remand of the petitioner's criminal case to the Superior
            Court, the District of Columbia Court of Appeals ultimately affirmed the
            armed robbery and CPWL convictions. See Carter v. United States, 791
            A.2d 23 (D.C. 2001); Carter v. United States, 684 A.2d 331 (D.C. 1996).
                 . . . . Currently, the petitioner's aggregate sentence of 22 to 67 years'
            imprisonment based on the foregoing Superior Court sentences imposed
            in March 1986 and March 1988 is set to expire on April 3, 2053.
                 On January 30, 2009, the petitioner was released to parole
            supervision under conditions set by the [Parole Commission] . . . . On
            December 7, 2009, the [Parole Commission] issued a parole violator
            warrant based on the petitioner's alleged illegal use of a controlled
            substance, his failure to submit to mandatory drug testing, and his arrest
            for several criminal offenses; the warrant was executed on April 29,
            2010 . . . . Following a probable cause hearing on May 4, 2010, at which
            the petitioner was represented by counsel, the [Parole Commission's]
            hearing examiner found probable cause and scheduled a parole
            revocation hearing on June 7, 2010 . . . . When the petitioner, his
            counsel, and all but one of the requested witnesses failed to appear at the
            scheduled revocation hearing, the hearing examiner surmised that “there
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            was a mix up in the case,” continued the matter, and indicated that the
            “hearing must be heard sometime before 7/25/10 . . . .” In November
            2010, the [Parole Commission] realized that the petitioner had not
            received a revocation hearing and, through a series of e-mails with the
            petitioner's attorney, rescheduled the hearing for February 10, 2011 . . . .
                  Following the petitioner's parole revocation hearing on February 10,
            2011, the [Parole Commission] found no parole violation and ordered the
            petitioner's release again to parole supervision.

Carter-El, 819 F. Supp. 2d at 39-40.

       On June 16, 2011, the plaintiff filed this civil action seeking $3 million in monetary

damages. Compl. at 12. Although the plaintiff listed his address in the complaint’s caption as a

residence in the District of Columbia, his current address of record is the District of Columbia

Jail. In his complaint in this case, the plaintiff invokes the Fifth and Eighth amendments to the

Constitution and also purports to bring a common law negligence claim. See id. at 8-10; see also

Pl.’s Opp’n at 2 (“In June, 2011, Carter-El commenced a civil rights complaint against the

officials of the D.C. Dep[artment] of Corrections . . . purporting to allege Fifth and Eighth

Amendment to the United States Constitution . . . .”)

                                          II. DISCUSSION

             A. Dismissal Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

       “Federal district courts are courts of limited jurisdiction,” and “[i]t is to be presumed that

a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994) (citations omitted). The plaintiff therefore bears the initial burden of

establishing by a preponderance of the evidence that the Court has subject matter jurisdiction

over his claim. Id.; see Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland

Sec., 527 F. Supp. 2d 101, 104 (D.D.C. 2007). In deciding a motion brought under Rule

12(b)(1), the Court “may consider materials outside the pleadings” and it must “accept all of the


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factual allegations in the complaint as true.” Jerome Stevens Pharms., Inc. v. Food & Drug

Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (internal quotation marks and citations omitted).

        The federal defendant argues correctly that only the United States is subject to suit under

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 (2011). Def.’s Mem. at 9. Under the

doctrine of sovereign immunity, the United States is immune from suit unless Congress has

expressly waived the defense of sovereign immunity by statute. See United States v. Mitchell,

463 U.S. 206, 212 (1983) (“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.”). Consent may not be

implied; it must be “unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S.

30, 33–34 (1992). A waiver of immunity is strictly construed in favor of the government, Orff v.

United States, 545 U.S. 596, 601–02 (2005), and the United States' consent to be sued establishes

the scope of the Court's jurisdiction, see United States v. Sherwood, 312 U.S. 584, 586 (1941).

“Absent a waiver, sovereign immunity shields the Federal Government . . . from suit.” Fed.

Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). “Despite its role in administering parole

for D.C. Code offenders, the Commission retains the immunity it is due as an arm of the federal

sovereign.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). “[A] plaintiff

must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary

to survive a Rule 12(b)(1) motion to dismiss.” Jackson v. Bush, 448 F. Supp. 2d 198, 200

(D.D.C. 2006) (citing Tri–State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C.

Cir. 2003)).

        The FTCA is an example of Congress' waiver of sovereign immunity. Under the FTCA,

the United States consents to suit in federal district court for certain, but not all, tort claims. See,

e.g., Richards v. United States, 369 U.S. 1, 6 (1962). The FTCA does not waive sovereign

                                                       4
immunity for constitutional torts. Zakiya v. United States, 267 F. Supp. 2d 47, 55-56 (D.D.C.

2003). Therefore, the Court lacks jurisdiction over the plaintiff’s tort claims premised on

violations of the Fifth and Eighth amendments.

       The plaintiff does not refute and, thus, has conceded the federal defendant’s

characterization of his negligence claim as “essentially a claim of false imprisonment based upon

his alleged unlawful parole term and the Commission’s delay in conducting his revocation

hearing.” Def.’s Mem. at 11; see Rosenblatt v. Fenty, 734 F. Supp. 2d 21, 22 (D.D.C. 2010)

(“[A]n argument in a dispositive motion that the opponent fails to address in an opposition may

be deemed conceded[.]”); Order of November 1, 2011 [Dkt. # 10] (advising the plaintiff about

his obligation to respond to the defendant’s dispositive motion and the consequences if he did

not). The defendant asserts correctly that “neither the professional staff of the Commission, nor

the Commissioners are investigative or law enforcement officers . . . within the meaning of [28

U.S.C.] § 2680(h).” Def.’s Mem. at 11; see Franklin v. District of Columbia, 163 F.3d 625, 632

(D.C. Cir. 1998) (discussing transfer to the Parole Commission of “jurisdiction and authority

[over D.C. Code offenders] . . . to grant and deny parole, and to impose conditions upon an order

of parole . . . .”) (quoting National Capital Revitalization and Self-Government Improvement Act

of 1997, Pub.L. No. 105-33, § 11231(a)(1), 111 Stat. 712, 745)); see generally D.C. Code § 24-

131 (1998) (establishing powers and duties of the Parole Commission over D.C. Code

offenders). Since § 2680(h) of the FTCA permits a claim of false imprisonment to be brought

only against United States officers “empowered by law to execute searches, to seize evidence, or

to make arrests for violations of Federal law,” authority which the Parole Commission officials

lack, the Court finds that it lacks jurisdiction over the plaintiff’s false imprisonment claim

against the Parole Commission.

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       Finally, to the extent that the plaintiff is bringing a claim of negligence against the Parole

Commission, the Court finds that it is not actionable because “the FTCA makes it clear that a tort

claim cannot be sustained against the United States where there is not an analogous claim

available against a private person under the state law of the jurisdiction [where] the event or

omission occurred[,]” Pate v. United States, 328 F. Supp. 2d 62, 76 (D.D.C. 2004) (citing 28

U.S.C. § 1346(b)(1)) (other citation omitted), and “a private person could not be sued under

District of Columbia law for failing to adhere to a legal requirement imposed on a federal

agency, here the requirement that parolees receive timely parole revocation decisions.” Id.

(footnote omitted). Therefore, the Court will grant the federal defendant’s motion to dismiss the

plaintiff’s FTCA complaint under Rule 12(b)(1).

                       B. Dismissal of the Remaining Defendant as Non Sui Juris

        The complaint against the Department of Corrections, the only other named defendant to

this action, must be dismissed because the Department of Corrections is not an entity capable of

being sued separate from the District of Columbia. See Arnold v. Moore, 980 F. Supp. 28, 33

(D.D.C. 1997) (dismissing claims against the Department of Corrections as a non-suable entity

“or non sui juris”). Substitution of the District of Columbia in this case would be futile because

where, as here, the success of the plaintiff’s claim of unlawful custody “would necessarily imply

the invalidity” of his confinement, the plaintiff cannot recover monetary damages for his alleged

unlawful custody without first invalidating his sentence via a writ of habeas corpus or some other

official proceeding. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Since the plaintiff was

unsuccessful in the related habeas proceeding, and has not shown that the challenged custody

has been invalidated by any other means, any claim brought against the District of Columbia for

“monetary damages in connection with the time [the plaintiff] was in custody pending his parole

                                                     6
revocation hearing . . . [would be] barred by Heck v. Humphrey . . . .” Johnson v. Fenty, No. 10–

5105, 2010 WL 4340344, at *1 (D.C. Cir. Oct. 1, 2010) (per curiam) (citation omitted).

                                             CONCLUSION

       For the foregoing reasons, the Court will grant the federal defendant’s motion to dismiss

the complaint under Rule 12(b)(1) and will deny the plaintiff’s motion for summary judgment.

In addition, the Court, on its own motion, will dismiss the claims against the District of

Columbia Department of Corrections because it is non sui juris. 1



                                                      _________s/____________
                                                             Reggie B. Walton
Date: September 28, 2012                              United States District Judge




1
    A separate final Order accompanies this Memorandum Opinion.



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