                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA


JOHNNY RAY CHANDLER,               )
                                   )
               Plaintiff,          )
                                   )
     v.                            )                                    Civil Action No. 17-0011 (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. 6. For the reasons discussed below, the Court will grant the

motion.

I. BACKGROUND

         From March 2, 2015 to September 7, 2016, 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”). Mem. in Support of Defs.’ Mot. to

Dismiss or, Alternatively, for Summ. J. (“Defs.’ Mem.”), Decl. of Patrick Kissell (“Kissell

Decl.”) ¶ 2. He since has been transferred to the United States Medical Center for Federal

Prisoners in Springfield, Missouri. Kissell Decl. ¶ 2. 1

         On August 3, 2016, the plaintiff sent a “cop-out,” an Inmate Request to Staff, to a female

staff member, Angel Espinoza-Levi:



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   The plaintiff’s motions to amend his complaint, ECF No. 8-9, are denied. The events giving rise to the plaintiff’s
claims occurred at ADX Florence. If the plaintiff intends to pursue claims against staff members at MCFP
Springfield, or against any other federal government official or employee, he may do so by filing a separate civil
action.

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                Pursuant to my Institutional Files and my Case Man[ager,] I have an
                up-coming M.R.D. (Mandatory Release Date) in May of 2017. I
                think that you are a very interesting and appealing young person.
                For the sole purpose of getting better acquainted and establishing a
                line of purely platonic communication, I respectfully request that
                you and I exchange E-Mail addresses.
Compl., ECF No. 1-1, Ex. A. Ms. Espinoza-Levi allegedly responded by “falsely accus[ing] the

plaintiff] of harassment, stalking and taunting,” Compl. at 2, presumably by filing an incident

report charging the plaintiff with a disciplinary violation, see id. at 1-2. After all, the plaintiff

remarked, a cop-out may be used to make “any type of request” to staff. Id. at 2. “All [he] did

was follow policy, liberally.” Id.

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

formal review of any aspect of their confinement.” Kissell Decl. ¶ 4 (citing 28 C.F.R. § 542.10).

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.; see 28 C.F.R. §§ 542.15, 542.18. The “process is not complete until the Office of General

Counsel replies, on the merits, to the inmate’s [request].” Id. ¶ 5 (citing 28 C.F.R. § 542.18).

        The BOP’s declarant states that, of the 24 formal administrative remedy requests or

appeals submitted by the plaintiff between August 3, 2016 and February 1, 2017, id. ¶ 7, only

one advanced to the Office of General Counsel, id. ¶ 8. “This request is an appeal of a remedy

request dated June 25, 2016 that precedes” the events set forth in the plaintiff’s complaint. Id.

None of the plaintiff’s other requests for this time period “relate[s] to the claims in this litigation

alleged to have occurred in August 2016.” Id. ¶ 9. The declarant’s review of “the BOP’s

Administrative Tort Claims database [reveals that the p]laintiff did not submit any administrative

tort claims with the BOP related to the claims alleged in this litigation.” Id. ¶ 11.




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          On September 8, 2016, the plaintiff filed a civil action in the Superior Court of the

District of Columbia against the BOP and Ms. Espinoza-Levi “[f]or the torts of: (1) False

Accusation and (2) Abuse of Process.” Compl. at 1. He demanded judgment in his favor and

monetary damages of $100,000. Id. The defendants removed the action on January 4, 2017. See

Notice of Removal, ECF No. 1. Accompanying their notice was a statement certifying that

“Defendant Angel Espinoza-Levi was an employee of the Government and was 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. The defendants filed their motion to dismiss or for

summary judgment on February 17, 2017, and the plaintiff filed his opposition, see Plaintiff’s

Rebuttal to the Defendants’ Motion for Summary Judgment and supporting memorandum

(collectively “Pl.’s Opp’n”), ECF No. 10, on April 7, 2017. 2

II. DISCUSSION

          The defendants move to dismiss on two grounds: that the plaintiff failed to exhaust his

administrative remedies before filing this action, and that venue in this district is improper. See

generally Defs.’ Mem. at 4-8.

          A. Exhaustion of Administrative Remedies
          1. Federal Tort Claims Act
          Based on the certification that Ms. Espinoza-Levi was acting within the scope of her

federal employment, the Court treats the plaintiff’s claims as if he had brought them under the

Federal Tort Claims Act (“FTCA”), see 28 U.S.C. § 2679(b)(1), (d)(1), against the United States

directly. The United States is immune from suit unless Congress expressly has waived its

defense of sovereign immunity by statute. See United States v. Mitchell, 463 U.S. 206, 212




2
    The plaintiff’s opposition is timely filed, and the Court will deny Plaintiff’s Motion for Abeyance, ECF No. 11.

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(1983). 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). Limitations under and exceptions to the FTCA doom the plaintiff’s 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, the defendants demonstrate, and the plaintiff does not dispute,

that the plaintiff did not file an administrative tort claim with the BOP. See Kissell Decl. ¶ 11.

       2. Prison Litigation Reform Act
       The plaintiff faces a different set of exhaustion requirements if the Court were “to

conclude instead that [the plaintiff’s] claims should be governed by the administrative processes

required under the Prison Litigation Reform Act (‘PLRA’).” Defs.’ Mem. at 6.

       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.




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42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is mandatory and “applies to all

prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S.

516, 520 (2002); see Jones v. Bock, 549 U.S. 199, 211 (2007). 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, 549 U.S. at 216, which “the

defendants have the burden of pleading and proving.” Brengettcy v. 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)).

        The defendants demonstrate that, of the 24 formal administrative remedy requests or

appeals submitted by the plaintiff between August 3, 2016 and February 1, 2017, none pertained

to the August 3, 2016 incident. See Kissell Decl. ¶¶ 7-9. The plaintiff states that he “was in the

process of preparing his Informal Complaint to be filed[] when the [BOP] . . . transferred [him]

to Springfield” on September 7, 2016. Pl.’s Opp’n at 2-3 (page numbers designated by ECF).

He suggests that the BOP is to blame for his failure to begin the administrative remedy process,

yet he managed to file a lawsuit in the Superior Court within this same time frame. Regulations

call for the submission of a formal written administrative remedy request to the Warden within

20 calendar days of the underlying incident, see 28 C.F.R. § 542.14(a), and the plaintiff does not

show that he was prevented from filing a request or that there was a valid reason for delay.



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        The Court concludes that the plaintiff did not exhaust his administrative remedies under

the FTCA and the PLRA because he failed to submit the appropriate requests to the BOP.

        B. Venue

        The defendants also move to dismiss on the ground that venue in this district is improper.

See Defs.’ Mem. at 8-9. The plaintiff asks the Court to transfer this matter to the proper federal

district. See Pl.’s Opp’n at 5. This plaintiff has a long history of vexatious litigation. See

Ibrahim v. District of Columbia, 208 F.3d 1032, 1037 (D.C. Cir. 2000) (requiring Chandler to

“pay the full fare” to bring his appeal before the D.C. Circuit because he had been barred from

proceeding in forma pauperis under 28 U.S.C. § 1915(g)); Chandler v. James, 783 F. Supp. 2d

33, 36 (D.D.C. 2011) (“Mr. Chandler’s 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.”). So

troublesome is this plaintiff that transfer of this action would not be in the interest of justice.

See Chandler v. Fed. Bureau of Prisons, No. 16-CV-2091, 2017 WL 1377902, at *3 (D.D.C.

Apr. 17, 2017); Mitchell v. Holliday, 202 F. Supp. 3d 116, 120 (D.D.C. 2016).

III. CONCLUSION
        The Court concludes that the plaintiff failed to exhaust his administrative remedies before

filing this civil action, and, therefore, the Court will grant the defendants’ motion. An Order

consistent with this Memorandum Opinion is issued contemporaneously.



DATE: June 27, 2017                               /s/   Beryl A. Howell
                                                BERYL A. HOWELL
                                                Chief Judge




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