                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




  WALTER BERNARD MORTON, JR.,

                         Plaintiff,

           v.                                             Civil Action No. 10-1595 (HHK)
  J. BOLYARD, et al.,

                         Defendants.




                                  MEMORANDUM OPINION

       This matter is before the Court on defendants’ motion to dismiss. Because sovereign

immunity bars claims against the defendants in their official capacities, the Court lacks personal

jurisdiction over the defendants in their individual capacities, and because plaintiff has not

exhausted his administrative remedies prior to filing this action, defendants’ motion will be

granted.

                                        I. BACKGROUND

       In the Superior Court of the District of Columbia, plaintiff was convicted “by a . . . jury

on charges of second-degree murder while armed and related weapons offenses.” Morton v.

Burns, No. 01 CA 6368, 2002 D.C. Super. LEXIS 69, at *1 (D.C. Super. Ct. May 28, 2002). The

Superior Court imposed a sentence of 21 years to life imprisonment, and its “judgment and

commitment order . . . committed the plaintiff to the custody of the Attorney General of the

United States.” Id., 2002 D.C. Super. LEXIS 69, at *2. Plaintiff has been transferred to the


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custody of the Federal Bureau of Prisons (“BOP”), and now is incarcerated at the United States

Penitentiary Hazelton (“USP Hazelton”) in Bruceton Mills, West Virginia.

        The claims plaintiff raises in this action arise from his employment by UNICOR while in

BOP custody.1 He alleges that defendants have denied him promotions and back pay for his

UNICOR job. See Compl. at 11.2 In addition, plaintiff alleges that defendants have denied him

good time credit not only for vocational training through UNICOR but also for educational

training through a correspondence course taken at his own expense. Id. at 11-12. He “is asking

for all Educational Good Time to be awarded . . . and also [$] 3,750.00 for the back pay for 19 . .

. months, and also Twenty Five thousand dollars for the harasment [sic] of being denied of pay

raises.” Id. at 12.3

        1
                According to the BOP’s website, “Federal Prison Industries (commonly referred
to as FPI or by its trade name UNICOR) is a wholly owned, Government corporation established
by Congress on June 23, 1934,” a principal mission of which is “to employ and provide job skills
training to the greatest practicable number of inmates confined within the [BOP].” See
http://www.bop.gov/inmate_programs/unicor.jsp; see also O’Quin v. United States, 72 Fed. Cl.
20, 24 (Fed. Cl. 2006) (“The FPI (also known by its trade name, ‘UNICOR’) is a
government-owned corporation that was established in 1934 to provide work programs for
inmates of federal correctional facilities.”).
        2
               Defendants removed this matter from the Superior Court of the District of
Columbia, and a copy of the Complaint was attached to the Notice of Removal [Dkt. #1].
Plaintiff submitted his Complaint on a preprinted form to which he attached a two-page
typewritten document titled “Motion for Amendment to Complaint.” The Court treats the
“Motion for Amendment to Complaint” as plaintiff’s Complaint, and because plaintiff has not
numbered the pages, the Court adopts the page numbers designated by the electronic docket.
        3
                To the extent that petitioner challenges the execution of his sentence by
demanding an award of good time credit, he must proceed under 28 U.S.C. § 2241 in the district
where he is incarcerated. See Preiser v. Rodriguez, 411 U.S. 475,(1973) (holding that habeas
corpus is the exclusive remedy for challenges to the fact or duration of confinement, specifically
discussing a claim for good time credits); Barfield v. U.S. Dep’t of Justice, No. 04-0636, 2005
WL 551808, at *3 (D.D.C. Mar. 8, 2005) (noting parties’ agreement “that the sole federal
remedy for challenging the loss of good-time credits and similar duration-of-confinement claims
is by a petition for habeas corpus”); see also Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)

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       The statutory bases for plaintiff’s claims are not clear. Plaintiff suggests, however, that

defendants’ actions “constitute harassment and biased hate crime.” Mem. of P. & A. in Supp. of

Pl.’s Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”) at 2 (emphasis removed). He does not name the

United States or a federal government agency as a defendant, and the Court presumes, then, that

plaintiff brings this action under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), which recognizes “an implied private action for damages against

federal officers alleged to have violated [a person’s] constitutional rights.” Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 66 (2001); see Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) (“[A]

Bivens action is the federal analog to suits brought against state officials under . . . 42 U.S.C.

§ 1983.”).

                                         II. DISCUSSION

       Defendants, all of whom are federal employees, move to dismiss the complaint. They

argue that sovereign immunity bars plaintiff’s claims against them in their official capacities,

that this Court lacks personal jurisdiction over them in their individual capacities, and that

plaintiff failed to exhaust his administrative remedies prior to filing this action as is required

under the Prison Litigation Reform Act (“PLRA”), see 42 U.S.C. § 1997e(a).4 See Mem. of P. &

A. in Supp. of Fed. Defs.’ Mot. to Dismiss Pl.’s Compl. (“Defs.’ Mem.”) at 6-13, 14-17.

                                       A. Sovereign Immunity

       To the extent that plaintiff sues the defendants in their official capacities, his claims are



(“[L]ongstanding practice confirms that in habeas challenges to present physical confinement . . .
the proper respondent is the warden of the facility where the prisoner is being held, not the
Attorney General or some other remote supervisory official.”).
       4
               The Court declines to address defendants’ alternative bases for dismissal.

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treated as if they were brought against the federal government itself. See Kentucky v. Graham,

473 U.S. 159, 165-66 (1985) (“Official capacity suits . . . generally represent only another way

of pleading an action against an entity of which an officer is an agent,” such that “an official

capacity suit is, in all respects other than name, to be treated as a suit against the entity.”). “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).

Notwithstanding plaintiff’s assertions to the contrary, see Pl.’s Opp’n at 6-7, “[a]bsent a waiver,

sovereign immunity shields the Federal Government and its agencies from suit.” Fed. Deposit

Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted); see Dep’t of the Army v. Blue

Fox, Inc., 525 U.S. 255, 260 (1999). Plaintiff cannot avoid this bar by naming government

employees as defendants instead of the agencies for which they work. See Clark v. Library of

Congress, 750 F.2d 89, 103 (D.C. Cir. 1984) (stating that sovereign immunity “bar[s] suits for

money damages against officials in their official capacity absent a specific waiver by the

government”) (emphasis in original).

        The Court concludes that sovereign immunity bars plaintiff’s claims against defendants

in their official capacities.

                                      B. Personal Jurisdiction

        Defendants argue that the Court lacks personal jurisdiction over them in their individual

capacities. Defs.’ Mem. at 11-12. It does not appear that defendants are persons “domiciled in,

organized under the laws of, or maintaining [their] principal place of business in, the District of

Columbia” over whom “[a] District of Columbia court may exercise personal jurisdiction.” D.C.

CODE § 13-422. Rather, in order “to exercise personal jurisdiction over a non-resident, the Court


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must examine whether jurisdiction is applicable under the relevant long-arm statute, D.C. CODE

§ 13-423, and must also determine whether jurisdiction satisfies the requirements of due

process.” Boland v. Fortis Const. Co., LLC, __ F. Supp. 2d __, __, 2011 WL 2685612, at *5

(D.D.C. July 12, 2011) (citing GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343,

1347 (D.C. Cir. 2000)).

       The long-arm statute allows a court in the District of Columbia to exercise personal

jurisdiction over a non-resident defendant with regard to a claim arising from the defendant’s

conduct in:

       (1)     transacting business in the District of Columbia;
       (2)     contracting to supply services in the District of Columbia;
       (3)     causing tortious injury in the District of Columbia by an act or omission in
               the District of Columbia; [or]
       (4)     causing tortious injury in the District of Columbia by an act or omission
               outside the District of Columbia if he regularly does or solicits business,
               engages in any other persistent course of conduct, or derives substantial
               revenue from goods used or consumed, or services rendered, in the District
               of Columbia.

D.C. CODE § 13-423(a). The due process prong of the analysis turns on whether a defendant’s

“minimum contacts” with the District of Columbia establish that “the maintenance of the suit

does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted). These minimum

contacts must arise from “some act by which the defendant purposefully avails [himself] of the

privilege of conducting activities with the forum state, thus invoking the benefits and protections

of its laws.” Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 109

(1988) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)). In other words, a

“defendant’s conduct and connection with the forum State are such that [he] should reasonably


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anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286, 297 (1980).

       It is plaintiff’s burden to make a prima facie showing that the Court has personal

jurisdiction over the defendants. See First Chicago Int’l v. United Exch. Co., 836 F.2d 1375,

1378-79 (D.C. Cir. 1988). Plaintiff, however, alleges no facts to establish a basis for asserting

personal jurisdiction. It appears that the defendants work at USP Hazelton, and nothing in the

complaint suggests that they transact business, supply services, or have caused tortious injury to

plaintiff in the District of Columbia. Nor does plaintiff allege facts regarding defendants’

minimum contacts in the District of Columbia. Federal government employment does not render

these defendants subject to suit in their individual capacities in a District of Columbia court. See

Scinto v. Fed. Bureau of Prisons, 608 F. Supp. 2d 4, 8 (D.D.C. 2009) (concluding that

allegations that defendants were following and enforcing regulations originating from BOP’s

Washington, D.C. headquarters “are insufficient to establish personal jurisdiction over non-

resident BOP employees”), aff’d, 352 Fed. App’x 448 (D.C. Cir. 2009) (per curiam), cert.

denied, 130 S.Ct. 2417 (2010); Pollack v. Meese, 737 F. Supp. 663, 666 (D.D.C. 1990)

(concluding that the court had no basis for asserting personal jurisdiction over the warden of a

BOP facility in Springfield, Missouri because he “surely does not transact any business in the

District of Columbia”).

        Defendants neither reside in the District of Columbia, nor fall within the scope of the

long-arm statute, nor maintain minimum contacts in this forum.5 For these reasons, the Court


       5
              Defendants also argue that personal service of process has not been effected. See
Defs.’ Mem. at 10, 13. Plaintiff is proceeding pro se and in forma pauperis, and the Clerk of
Court and the United States Marshals Service are responsible for effecting service of process on

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concludes that it lacks personal jurisdiction over the defendants in their individual capacities.

                   C. Exhaustion of Administrative Remedies Under the PLRA

       In relevant part, the Prison Litigation Reform Act (“PLRA”) provides that:

               No action shall be brought with respect to prison conditions under
               [42 U.S.C. § 1983], 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). Defendants move to dismiss the complaint on the ground that plaintiff

“has failed to exhaust his administrative remedies with regard to [the] claims raised in this

lawsuit.” Defs.’ Mem. at 7.

       The PLRA 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); see Kaemmerling v. Lappin, 553 F.3d 669, 675

(D.C. Cir. 2008); see also Kim v. United States, 632 F.ed 713, 718 (D.C. Cir. 2011) (discussing

requirement that a prisoner exhaust prison grievance procedures under the PLRA before filing a

lawsuit). Exhaustion under the PLRA requires proper exhaustion, meaning that a prisoner must

comply with all 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. Woodford v.

Ngo, 548 U.S. 81, 93 (2006); Booth v. Churner, 532 U.S. 731, 741 (2001). Typically, then, a

prisoner may file a civil action concerning conditions of confinement under federal law only

after he has exhausted the prison’s administrative remedies. Jackson v. District of Columbia,




his behalf. See 28 U.S.C. § 1915(d). Under these circumstances, the Court will deny
defendants’ motion to dismiss under FED. R. CIV. P. 12(b)(4) for insufficient process and FED. R.
CIV. P. 12(b)(5) for insufficient service of process.

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254 F.3d 262, 269 (D.C. Cir. 2001).

        The BOP’s Administrative Remedy Program is the means by which an inmate “seek[s]

formal review of an issue relating to any aspect of his[] own confinement.” 28 C.F.R.

§ 542.10(a). Generally, “an inmate shall first present an issue of concern informally to staff, and

staff shall attempt to informally resolve the issue before an inmate submits a Request for

Administrative Remedy.” 28 C.F.R. § 542.13(a). If an informal resolution is not achieved, the

inmate may submit a formal written administrative remedy request. 28 C.F.R. § 542.14(a). If

the inmate is not satisfied with the Warden’s response at this first level of the process, he “may

submit an [a]ppeal to the Regional Director,” and if he is satisfied with the Regional Director’s

response, he “may submit an [a]ppeal . . . to the General Counsel” at BOP’s central office. 28

C.F.R. § 542.15(a)

        According to defendants, plaintiff “filed an administrative remedy request, #566839-F1,

at the institutional level regarding his request to be given a grade one position and back pay for

fifteen months,” but has not “file[d] at the regional and central office levels.” Defs.’ Mem., Ex.

A (Plumley Decl.) ¶ 4. Plaintiff correctly notes that exhaustion of administrative remedies is an

affirmative defense, see Pl.’s Opp’n at 8, such that he is not required to allege exhaustion in his

complaint. See Jones, 549 U.S. at 215-16. He appears instead to assert that further pursuit of an

administrative remedy would be futile. See Pl.’s Opp’n at 8 (“Plaintiff exhaust remedy to the

warden level knowing that at the known response that rebutt [sic] from informal resolution was

just countless[].”).

        “Even if an inmate believes that seeking administrative relief from the prison would be

futile and even if the grievance system cannot offer the particular form of relief sought, the


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prisoner nevertheless must exhaust the available administrative process.” Kaemmerling, 553

F.3d at 675 (citing Booth, 532 U.S. at 739, 741 & n.6). A matter involving UNICOR

employment may be addressed through an inmate grievance. See Garfield v. Fed. Prison Indus.,

Inc., 3 Fed. App’x 292 (6th Cir. 2001) (affirming dismissal of Bivens action brought by federal

prisoner alleging denial of longevity pay for prior employment with UNICOR); Heard v.

Williamson, No. 1:CV-07-00254, 2008 WL 191810 (M.D. Pa. Jan. 22, 2008) (dismissing

complaint alleging violation of constitutional rights for issuance of incident report resulting in

temporary reduction in pay for UNICOR job); Gordon v. Lappin, No. 06-0427, 2006 WL

2228932, at *2 (D.D.C. Aug. 3, 2006) (dismissing prisoner’s complaint alleging an

unconstitutional transfer from one penitentiary to another resulting in the “loss of UNICOR

Grade 2 Pay”). Only “if ‘the relevant administrative procedure lacks authority to provide any

relief or to take any action whatsoever in response to a complaint’” is plaintiff relieved of his

obligation to complete the inmate grievance process. Kaemmerling, 553 F.3d at 675 (quoting

Booth, 532 U.S. at 736). Plaintiff makes no such showing, and the Court concludes that plaintiff

failed to exhaust the available administrative remedies prior to filing the action.

                                       III. CONCLUSION

       For the reasons discussed, the Court will grant defendants’ motion to dismiss. An

appropriate Order accompanies this Memorandum Opinion.

                                                            /s/
DATE: September 9, 2011                       HENRY H. KENNEDY, JR.
                                              United States District Judge




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