                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA

    KEITH D. JOHNSON,

                            Plaintiff,
                                                                      Civil Action No. 18-2608 (BAH)
                            v.
                                                                      Chief Judge Beryl A. Howell
    LOUIS MANZO, et al.,

                            Defendants.

                              MEMORANDUM OPINION AND ORDER

         Keith Johnson, a D.C. prisoner proceeding pro se, filed this “Malicious Prosecution”

action against the former United States Attorney for the District of Columbia and an Assistant

United States Attorney (“AUSA”), alleging in a single paragraph that they allowed presentment

to the grand jury of perjured or inconsistent testimony by grand jury witnesses, and seeking

“$170,000,000.15” in damages. Compl. at 1, 3, ECF No. 2-1. Following removal of this action

from Superior Court, see Notice of Removal, ECF No. 2, the government filed the pending

Motion to Dismiss, ECF No. 5, on grounds, inter alia, that this Court lacks jurisdiction and

failure of the plaintiff to exhaust his administrative remedies.1

         After the pro se plaintiff was advised of his obligations under the Federal Rules of Civil

Procedure and this Court’s Local Civil Rules to file an opposition, and of the consequences of

his failure to oppose the government’s motion, see Order at 1–2, ECF No. 6 (citing Neal v. Kelly,

963 F.2d 453, 456 (D.C. Cir. 1992), and Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988)),



1
          Since the government’s motion is resolved on the two referenced grounds, the remaining proffered bases
for why the plaintiff’s claim should be dismissed, including (1) the doctrine of derivative jurisdiction; (2)
insufficient service; (3) failure to state a viable claim for malicious prosecution; and (4) Heck v. Humphrey, 512 U.S.
477 (1994), need not be addressed.

                                                          1
the plaintiff responded with three brief handwritten letters, approximately six pages in total,

attaching records from the criminal case against him in D.C. Superior Court that resulted in his

conviction, and documents discussing several areas of the law. See Letter from Pl. (undated)

(“Pl.’s First Response”), ECF No. 7 (sealed); Letter from Pl. (Dec. 2, 2018) (“Pl.’s Second

Response”), ECF No. 9 (sealed); Letter from Pl. (Dec. 14, 2018) (“Pl.’s Third Response”), ECF

No. 10.2 For the reasons discussed below, the government’s motion to dismiss is granted.

I.       LEGAL STANDARD

         To survive a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction,

the plaintiff bears the burden of demonstrating the Court’s jurisdiction over the claims asserted.

Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). Absent subject matter jurisdiction over a

case, the action must be dismissed. See FED. R. CIV. P. 12(h)(3); Arbaugh v. Y & H Corp., 546

U.S. 500, 506–07 (2006). If a defendant files a motion to dismiss on multiple grounds, as the

government has here, “threshold questions,” such as subject matter jurisdiction, are examined

first. Anderson v. Carter, 802 F.3d 4, 8 (D.C. Cir. 2015).

II.      DISCUSSION

         The government has certified that the plaintiff’s claim of “Malicious Prosecution”

concerns actions by the former United States Attorney and an AUSA that fall “within the scope

of their employment as employees of the United States at the time of the alleged incident.”

Gov’t’s Certification at 1, ECF No. 2-2. Thus, pursuant to the Westfall Act, 28 U.S.C. §



2
         The D.C. Superior Court records include the plaintiff’s indictment, transcripts of grand jury witness
testimony annotated by the plaintiff, an arrest affidavit, a plea offer letter, and a letter from the plaintiff to the D.C.
Superior Court judge presiding over his criminal case. See Pl.’s First Response at 2–37; Pl.’s Second Response at
3–4, 6–16, 38–47, 56–57; Pl.’s Third Response at 4. The documents discussing the law include a copy of D.C. Code
§ 22-2402 (“Perjury”), a treatise reviewing, inter alia, the Brady doctrine, a section of United States v. Agurs, 427
U.S. 97 (1976), and a copy of the Fourteenth Amendment to the United States Constitution. See Pl.’s Second
Response at 5, 17–37, 48–55, 58–59; Pl.’s Third Response at 5. These attachments have little bearing on the
substance of the government’s motion.

                                                            2
2679(d), the United States “shall be substituted as the party defendant.” See Wasserman v.

Rodacker, 557 F.3d 635, 638–39 (D.C. Cir. 2009) (explaining that in a “tort case against a

federal employee” removed from D.C. Superior Court, “the United States will be substituted as

the party defendant” upon the government’s certification, pursuant to 28 U.S.C. § 2679(d)).

Following a Westfall Act substitution in a tort action, “the suit is governed by the Federal Tort

Claims Act (‘FTCA’).” Wuterich v. Murtha, 562 F.3d 375, 380 (D.C. Cir. 2009).3 The FTCA

permits an action against the United States for certain torts only in certain circumstances. See 28

U.S.C. § 2680(h).

         The government argues that jurisdiction over the plaintiff’s FTCA claim is lacking

because (1) the government has not waived its sovereign immunity; and (2) the plaintiff failed to

exhaust his administrative remedies. Each argument is discussed in turn.

         First, the government asserts that this action should be dismissed because the plaintiff’s

malicious prosecution claim is “barred by the doctrine of sovereign immunity.” Gov’t’s Mem.

Supp. Mot. Dismiss (“Gov’t’s Mem.”) at 6, ECF No. 5-1. 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 FDIC v. Meyer, 510 U.S. 471, 475 (1994). The

FTCA is an example of a waiver of the federal government’s immunity, albeit with limitations




3
          The plaintiff’s Complaint indicates that his claim sounds in tort, see Compl. at 3, even though aspects of the
plaintiff’s submissions suggest that he also may be asserting a constitutional claim. See, e.g., id. at 1 (alleging Brady
violation); Pl.’s Second Response at 1 (claiming failure to disclose allegedly perjured testimony and citing United
States v. Agurs, 427 U.S. 97, 103 (1976)); Pl.’s Third Response at 2 (asserting denial of “equal protection of the
laws under the Constitution”). To the extent that the plaintiff is seeking to assert a constitutional claim, this effort
fails. “Federal constitutional claims for damages are cognizable only under [Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971)] against individual governmental officials personally,”
Loumiet v. United States, 828 F.3d 935, 945 (D.C. Cir. 2016); see also id. (distinguishing FTCA claims, which
“provide[] a method to enforce state tort law against the federal government” from Bivens constitutional claims
against individual federal officers). The plaintiff may not proceed via Bivens, however, because a prosecutor’s
“failure, be it knowing or inadvertent, to disclose material exculpatory evidence before trial . . . falls within the
protection afforded by absolute prosecutorial immunity.” Moore v. Valder, 65 F.3d 189, 194 (D.C. Cir. 1995).

                                                           3
and exceptions. Most pertinent here, the FTCA does not waive sovereign immunity for a “claim

arising out of . . . malicious prosecution,” unless that tort was committed by “investigative or law

enforcement officers of the United States Government, . . .who [are] empowered by law to

execute searches, to seize evidence, or to make arrests for violations of Federal law.” 28 U.S.C.

§ 2680(h); see also Moore v. United States, 213 F.3d 705, 708 (D.C. Cir. 2000) (“Under the

FTCA . . . claims of malicious prosecution . . . can only arise from the conduct of ‘investigative

or law enforcement officers of the United States government.’” (citing 28 U.S.C. § 2680(h)).

       Here, the FTCA does not waive sovereign immunity for the plaintiff’s malicious

prosecution claim, based on the alleged conduct of the former United States Attorney and an

AUSA because neither are “investigative or law enforcement officers” within the meaning of the

FTCA. See Moore, 213 F.3d at 710 (explaining that “none” of a federal prosecutor’s “conduct

can be the basis for a malicious prosecution claim against the government” because a prosecutor

is not an “investigative or law enforcement officer” under § 2680(h)); Hobley v. United States,

No. 07-cv-253 (JDB), 2007 WL 1821157, at *3 (D.D.C. June 25, 2007) (“[F]ederal prosecutors,

including assistant United States attorneys, are generally not considered ‘investigative or law

enforcement officers.’” (citing, inter alia, Moore, 213 F.3d at 710)). Accordingly, the plaintiff’s

claim is not cognizable under the FTCA and is barred by sovereign immunity.

       Second, the government correctly points out that even if the plaintiff’s claim were not

barred by sovereign immunity, the Complaint must be dismissed “for failure to exhaust

administrative remedies.” Gov’t’s Mem. at 4. “In order to maintain an action under the FTCA,

plaintiff must have exhausted his administrative remedies by ‘first present[ing] the claim to the

appropriate Federal agency . . . .’” Mallory v. U.S. Dep’t of Housing & Urban Devel., No. 13-

cv-0367 (CKK), 2014 WL 775258, at *1 (D.D.C. Feb. 26, 2014) (quoting 28 U.S.C. § 2675(a)).



                                                 4
In this case, the plaintiff never filed an administrative tort claim claim with the U.S. Attorney’s

Office for the District of Columbia. See Gov’t’s Mem., Ex. B, Decl. of Daniel F. Van Horn,

Chief, Civil Division, USAO D.C., ¶ 5, ECF No. 5-2. The plaintiff’s failure to exhaust creates a

jurisdictional defect, and as a result, dismissal is required. See McNeil v. United States, 508 U.S.

106, 113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have

exhausted their administrative remedies.”).

III.     CONCLUSION AND ORDER

         Upon consideration of the government’s Motion to Dismiss, ECF No. 5, the memoranda,

exhibits, and declarations submitted in support of, and opposition to, the pending motion, and the

entire record herein, for the reasons set forth in in this Memorandum Opinion and Order, it is

hereby

         ORDERED that the government’s Motion to Dismiss, ECF No. 5, is GRANTED; and it

is further

         ORDERED that this action is DISMISSED; and it is further

         ORDERED that the Clerk of Court is directed to close this case.

         SO ORDERED.

         Date: April 2, 2019

         This is a final and appealable order.


                                                      __________________________
                                                      BERYL A. HOWELL
                                                      Chief Judge




                                                  5
