UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MELVIN LEE DAVIS, §
Plaintiff, §
v. § Civil Action No. 12-0676 (RLW)

UNITED STATES OF AMERICA, §
Defendant. §

)

MEMoRANDUM oPINIoN‘

This matter is before the Court on the defendant’s motion to dismiss, For the reasons

discussed below, the motion will be granted.
I. BACKGROUND

lt appears that the plaintiff assisted the government by providing testimony regarding an
assault on a BOP staff member by inmates who were members ofa gang. See Compl. at 3~4
(page numbers designated by ECF); Pl.’s Resp. to Def.’s Mot. to Dismiss ("Pl.’s Opp’n") at 12.
The plaintiff alleges that the F ederal Bureau of Prisons ("BOP") transferred him to the

Mississippi Department of Corrections ("MDOC"), which he describes as "an admitted

This unpublished memorandum opinion is intended solely to inform the parties and any
reviewing court of the basis for the instant ruling, or alternatively, to assist in any potential future
analysis of the resjudz`cata, law of the case, or preclusive effect of the ruling. The Court has
designated this opinion as "not intended for publication," but this Court cannot prevent or
prohibit the publication of this opinion in the various and sundry electronic and legal databases
(as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion
by counsel. Cf. Fed. R. App. P. 32.1. Nonetheless, as stated in the operational handbook
adopted by our Court of Appeals, "counsel are reminded that the Court’s decision to issue an
unpublished disposition means that the Court sees no precedential value in that disposition."
D.C. Circuit Handbook of Practice and Internal Procedures 43 (201 l).

1

stronghold for the gangs." Compl. at 2.2 This transfer to MDOC, he alleges, "placed [him] in
harms [sic] way," z`d. at 3, by housing him among the "same gang membership" responsible for
the assault on the BOP staff member. Id. at 4. Specifically, he states that, on Gctober 30, 201 l,
while incarcerated at the Mississippi State Prison in Parchman, Mississippi, another inmate
stabbed him with "a spear-like weapon" resulting in wounds to his left leg. ld. at 5. He claims

that "BOP never informed the [MDOC] as to plaintiff’s assistance and/or plaintiff`s testimony,

etc., and as such contributed to the stabbing and assaults upon [him]." Pl.’s Opp’n at l 1
(parentheses removed). For the BOP’s alleged negligence, see Compl. at 3, the plaintiff brings
this action under the Federal Tort Claims Act (“FTCA"). See 28 U.S.C. § l346(b)(l) (conferring
on district courts the "exclusive jurisdiction of civil actions on claims against the United States[]
for money damages . . . for . . . personal injury . . . caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his . . .
employment, under circumstances where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where the act or omission occurred").
II. DISCUSSION

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., Richam's v. United States,
369 U.S. l, 6 (l962). "Absent 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). A
viable claim under the FTCA requires that a claimant present his claim to the appropriate federal

agency prior to filing a civil action in a federal district court. McNeil v. United States, 508 U.S.

2 In June 201 O, the Warden at the Administrative Maximum Security institution (ADX) in
Florence, Colorado, requested the plaintiffs re-designation to a non-federal facility. Def.’s
Reply, Decl. of Romulo Armendariz 11 4. The request was approved, and MDOC was selected.
Id. M l, 5.

106, 113 (1993); Benoit v. U.S, Dep’t ofAgric., 608 F.3d l7, 20 (D.C. Cir. 20l0) (stating that
"that suits for damages against the United States under the common law must be brought
pursuant to the limited waiver of sovereign immunity in the FTCA, which requires that the
claimant have exhausted his administrative remedy before filing suit"); see 28 U.S.C. § 2675(a)
(requiring presentation of a claim "for money damages for . . . 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 . . . to the appropriate Federal agency" before a civil action
may be filed). Thus, failure to comply with these administrative filing requirements deprives the
district court of jurisdiction to consider the claim. See Hammond v. Fed. Bureau of Prisons, 740
F. Supp. 2d 105, lll (D.D.C. 20l0) (dismissing FTCA claim for lack of subject matter
jurisdiction where plaintiff had not "established by a preponderance of the evidence that he

administratively exhausted his FTCA claim with the BOP before commending this action").

The defendant moves to dismiss the complaint under Rule l2(b)(l) of the Federal Rules
of Civil Procedure for lack of subject matter jurisdiction because the plaintiff failed to exhaust
his administrative remedies before filing this lawsuit.3 See Mem. of P. & A. in Supp. of Def.’s
Mot. to Dismiss ("Def.’s Mem.") at 3-4. The defendant’s declarant states that the plaintiff "has
not filed an administrative tort claim with the BOP regarding any alleged assault or other

incidents that may have occurred during his incarceration in the Mississippi Department of

3 Because the Court finds that it lacks subject matterjurisdiction over plaintiff’ s FTCA claim,
the defendant’s motion to dismiss under Rule l2(b)(3) for improper venue, see Def.’s Mem. at 4-
5, will be denied as moot.

Corrections." Def.’s Reply to Pl.’s Opp’n to Def.’s Mot. to Dismiss ("Def.’s Reply"), Ex. A

(Decl. of Kevin Littlejohn ("Littlejohn ll Decl.")) 11 7.4

The plaintiff responds by asserting that, on November 3, 201 1, he "filed under the
[FTCA] for monetary damages against the [BOP]," and mailed his claim to the BOP’s North

Central Regional Office in Kansas City, Kansas, with copies to BOP’s Central Office in

Washington, DC and to "the BOP’s l\/Iontgomery Residential Office [in] Montgomery,
Alabama." Pl.’s Resp. to Def.’s Mot. to Dismiss ("Pl.’s Opp’n") at 3; see id., Attach. A (Claim
for Damage, Injury or Death). He alleges that, when he received no response, he sent a letter to
the Director of the BOP on January 18, 2012 by certified mail. Ia'.; see id., Attach. (Letter to
Director’s Office from plaintiff dated January 19, 2012). This letter was returned to him, and the
envelope was "stamped . . . Not Deliverable As Addressed - Return to Sender - Unable to
Forward." Id. at 3. ln addition, the plaintiff discussed the assault with Alvin Speights, a
Residential Reentry Manager at the BOP’s Montgomery, Alabama Community Corrections
Office and later sent Mr. Speights two letters.$ Ia' at 5; see z'd, Attach. D (correspondence

between the plaintiff and Alvin Speights).

The plaintiff may have prepared a written FTCA claim, yet missing from his submissions
is the required showing that the BOP actually received the claim. See Baz`ley v. United States,

642 F.2d 344, 346-47 (9th Cir. 1981) (mailing alone is not sufficient to comply with FTCA, as

4 The BOP’s declarant demonstrates that the plaintiff has filed two administrative claims
against the BOP while in the BOP’s custody. Both are property claims and neither claim "is
based on the incident he describes" in his complaint. Def.’s Reply, Littlejohn ll Decl. 11 4; see
l`d., Littlejohn ll Decl. 1111 5-6 & Attach. B-C; Def.s’ l\/Iem., Littlejohn Decl. 1111 5-6 & Attach. C-
D.

According to Mr. Speights, the plaintiff "has not submitted any administrative tort claims
pertaining to the incident at the Mississippi State Penitentiary to [him] or to [his] office." Def.’s
Reply, Ex. B (Decl. of Alvin Speights) 11 3.

plaintiff is required to show that agency actually received the claim); Crack v. United States, 694
F. Supp. 1244, 1246-47 (E.D. Va. l088) (same). The plaintiff does not state, for example, that
he sent his claim to the North Central Regional Office by certified mail. Nor does he provide a
receipt or other proof of mailing. Furthermore, the plaintiff s own submission shows that the
certified letter intended for the BOP’s Director was returned to him as undeliverable. The BOP

cannot be expected to evaluate or settle a claim that it has not received, and informal complaints

or requests to BOP staff do not suffice. See, e.g., Grant v. Sec ’y, U.S. Dep ’t of Veterans Ajj’az'rs,
No. 03-5260, 2004 WL 287125, at *1 (D.C. Cir. Feb. 4, 2004) (per curiam) (rejecting appellant’s
argument "that his informal letter of complaint to the Director of the Veterans’ Administration
Medical Center was sufficient to satisfy the FTCA’s administrative exhaustion requirement");
Reisman v. Bullard, 14 F. App’x 377, 379 (6th Cir. 2001) (finding that the plaintiffs had not
exhausted administrative remedies where, "[a]lthough . . . [they] made many informal inquiries
to the IRS and communicated their displeasure over the agency’s audit of their income tax return,
they did not establish that they ever filed a proper FTCA claim with the IRS or that such a claim
was denied by the agency"); Megna v. Food & DrugAdmz`n., No. 08-1435, 2009 WL 749900, at
*9 (E.D.N.Y. Mar. 27, 2009) (acknowledging "a report plaintiff made regarding Interferon 2a to
the FDA’s MedWatch program which allows voluntary reporting of adverse events and product
problems by patients" but finding that "these types of informal inquiries or complaints are not
sufficient to satisfy the FTCA exhaustion requirement"), aff’d, 377 F. App’x 113 (2d Cir. 2010);
see also Tanter v. Dep ’t of the Interior, 432 F. Supp. 2d 58, 63 (D.D.C. 2006) (where defendants

"offer a declaration stating that a search of DOI records produced no evidence of the plaintiff

having filed an administrative charge," and where "the plaintiff has not contested these factual

allegations, the court treats them as conceded," the plaintiff had not exhausted administrative

remedies prior to filing suit).

The plaintiffs failure to submit an administrative claim under the FTCA to the BOP prior
to filing this lawsuit deprives this Court of subject matter jurisdiction. See Henderson v. Ratner,
No. 10-5035, 2010 WL 2574175, at *1 (D.C. Cir. June 7, 2010) (per curiam) (affirming
dismissal of FTCA claim where "[a]ppellant failed to demonstrate that he exhausted his
administrative remedies before filing suit in the district court"); Hammond, 740 F. Supp. 2d at
11l; see also Hurt v. Lappz'n, 729 F. Supp. 2d 186, 190 (D.D.C. 2010) (dismissing premature
FTCA claim which plaintiff had submitted to the BOP less than two months prior to filing civil

action in district court).

lIl. CONCLUSlON

The Court will grant the defendant’s motion to dismiss for lack of subject matter

jurisdiction. An Order accompanies this Memorandum Opinion.

Date: May 10, 2013

Dlglta||y signed by judge
Robert L. Wi|klns

DN: cn=)udge Robert L.

i.; W\|kins, o=U.S. District

,‘ Court, ou=Chambers of
Honorable Robert L. Wl|kins,
email=RW@dc.uscourt.gov,
c=US

Date:2013.05.`lO l 1:05:58
-04'00'

 

ROBERT L. WILKINS
United States District judge

