                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
JOHNNY RAY CHANDLER,                )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                        Civil Action No. 16-1890 (BAH)
                                    )
NEAL KIMBEL,                        )
                                    )
                  Defendant.        )
___________________________________ )



                                 MEMORANDUM OPINION

       This matter is before the Court on the Defendant’s Motions to Dismiss or, Alternatively,

for Summary Judgment, ECF No. 5, and for Extension of Time to File Reply, ECF No. 7. For

the reasons discussed below, the Court will grant the former and deny the latter as moot.

I. BACKGROUND

       At all times relevant to the complaint, the plaintiff has been in the custody of the Federal

Bureau of Prisons (“BOP”) and designated to the Administrative Maximum United States

Penitentiary in Florence, Colorado (“ADX Florence”). See Compl., ECF No. 1-1 at 1. The

plaintiff has “been diagnosed with over five mental health conditions” for which he received

treatment from a psychologist. Id. Dr. Kimbel provided counseling while the plaintiff was

housed in the Special Housing Unit. Id. On or about April 26, 2016, the plaintiff was returned

to the general population and housed in the Eco Unit. Id. at 2. After having a single counseling

session on May 17, 2016 with Dr. Mann, the psychologist assigned to Eco Unit, the plaintiff “left

with a very positive outlook on life and positive plans for the future.” Id. He compared this


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session to those with Dr. Kimbel, commenting that Dr. Kimbel “keeps [him] focused on being

denied and rejected.” Id.

        According to the plaintiff, “Dr. Kimbel met with Dr. Mann and instructed her not to see

[him] any more for counseling.” Id. The plaintiff deemed this action “malicious interference”

and the “denial of mental health treatment.” Id. In addition to an award of $100,000, id. at 1, the

plaintiff demands a court order requiring that the plaintiff receive psychotherapy from Dr. Mann,

id. at 3.

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

formal review of any aspect of their confinement.” Mem. of P. & A. in Support of Def.’s Mot. to

Dismiss or, Alternatively, for Summ. J., ECF No. 5-1 (“Def.’s Mem.”), Kissell Decl. ¶ 4. 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. The “process is not complete until the Office of General Counsel replies, on the merits, to the

inmate’s [request] or if a response is not forthcoming within the time allotted for reply.” Id. ¶ 5.

        The defendant’s declarant states that, of the 26 formal requests submitted by the plaintiff

between May 19, 2016 and November 1, 2016, id. ¶ 7, “four of these requests related to the

claims alleged in this litigation,” id. ¶ 9. None of these four requests made its way to the Office

of General Counsel, however. Id. Based on his review of the plaintiff’s requests, the declarant

concludes that the plaintiff “did not exhaust his remedies as related to complaints against the

defendants raised in the present case through the BOP’s Administrative Remedy Program.” Id. ¶

10.

        On June 20, 2016, the plaintiff filed an administrative tort claim “alleging that BOP had

failed to provide proper mental health treatment since March 2016.” Id. ¶ 11; see Def.’s Mem.,



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Ex. 1. The BOP denied the claim on August 18, 2016, Kissell Decl. ¶ 13; see Def.’s Mem., Ex.

2.

II. DISCUSSION

       The plaintiff filed this action in the Superior Court of the District of Columbia on June

13, 2016. The defendant removed the case on September 21, 2016 and filed the motion to

dismiss or for summary judgment on November 21, 2016. On November 22, 2016, the Court

issued an Order advising the plaintiff of his obligations under the Federal Rules of Civil

Procedure and the local civil rules of this Court. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.

1992); Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988). Specifically, the Court notified the

plaintiff that, if he failed to file an opposition or other response to the defendant’s motion by

December 21, 2016, the Court would treat the pending dispositive motion as conceded. See

D.D.C. Local Civil Rule 7(b) (permitting court to “treat . . . as conceded” a motion not met with

a timely opposing memorandum of points and authorities). To date, the plaintiff has not filed an

opposition to the pending motion, or requested more time to file an opposition, or advised the

Court of any change of address.

        Under these circumstances, the Court ordinarily would grant the defendant’s motion as

conceded. The United States Court of Appeals for the District of Columbia Circuit recently has

raised concerns, however, about the use of Local Civil Rule 7(b) to grant unopposed motions to

dismiss, see Cohen v. Bd. of Trs. of the Univ. of the District of Columbia, 819 F.3d 476, 482

(D.C. Cir. 2016), and for summary judgment, see Winston & Strawn, LLP v. McLean, 843 F.3d

503, 507-08 (D.C. Cir. 2016). Despite acknowledging the value of Local Civil Rule 7(b) as an

important “docket-management tool that facilitates efficient and effective resolution of motions,”

Cohen, 819 F.3d at 480 (quoting Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004)



                                                  3
(additional citation omitted)), the rule “stands in tension with . . . Rule 12(b)(6),” id. at 481, and

“cannot be squared with . . . Rule 56,” Winston & Strawn, 2016 WL 7174125, at *3. In light of

the D.C. Circuit’s recent rulings, the Court briefly addresses the merits of the defendants’

arguments.

        The plaintiff’s demand for monetary damages arises from Dr. Kimbel’s alleged failure to

provide mental health treatment and the harm that resulted. Based on the representation that

“[d]efendant Neal Kimbel was an employee of the Government and was acting within the scope

of his employment for the [BOP] at the time of the allegations stated in Plaintiff’s Complaint,”

Certification, ECF No. 1-2, the Court treats the claim as one brought under the Federal Tort

Claims Act (“FTCA”) against the United States directly.

        “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.” United States v. Mitchell, 463 U.S. 206,

212 (1983). Under the doctrine of sovereign immunity, the United States is immune from suit

unless Congress expressly has waived the defense of sovereign immunity by statute. See id. 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). Under the FTCA, a claimant may file suit against the United States for claims of

“personal injury . . . 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.” 28 U.S.C. § 1346(b).

        Nevertheless, 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

                                                   4
               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 the plaintiff’s “fail[ure] to

heed that clear statutory command” warrants dismissal of his claim. McNeil v. United States,

508 U.S. 106, 113 (1993).

       The six-month period within which the BOP was obliged to respond to the plaintiff’s

FTCA claim had not expired when the plaintiff initiated this lawsuit. The defendants

demonstrate that the plaintiff filed his complaint in the Superior Court prematurely, see Kissell

Decl. ¶¶ 12-13, and thus failed to exhaust his administrative remedies.

       If the Court were to conclude that the FTCA did not apply, the plaintiff’s claim still

would be subject to dismissal for failure to exhaust the administrative remedies available to him

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

inmate suits about prison life, whether they involve general circumstances or particular episodes,

and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516,

532 (2002) (citation omitted); see Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (noting “that . . . a

court may not excuse a failure to exhaust, even to take [special] circumstances into account.”).


                                                  5
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).

       The defendant demonstrates that none of the administrative remedy requests submitted by

the plaintiff between May 19, 2016 and November 1, 2016 pertained to mental health treatment

the plaintiff allegedly did not receive at ADX Florence had progressed through the final tier for

review by the Office of General Counsel. See Kissell Decl. ¶¶ 7-10.

III. CONCLUSION

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

the FTCA and the PLRA prior to filing this action in the Superior Court of the District of

Columbia. Accordingly, the Court grants the defendant’s motion. An Order consistent with this

Memorandum Opinion is issued separately.




DATE: January 17, 2017                    /s/   Beryl A. Howell
                                                BERYL A. HOWELL
                                                Chief Judge




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