                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


CHARLES ALEXANDER DAVIS, )
                         )
          Plaintiff,     )
                         )
          v.             )                    Civil Action No. 14-1620 (RC)
                         )
                         )
UNITED STATES            )
OF AMERICA et al.,       )
                         )
                         )
          Defendants.    )


                                  MEMORANDUM OPINION

       Plaintiff is a prisoner at the Federal Correctional Institution in Seagoville, Texas. He was

convicted in the United States District Court for the Western of North Carolina of filing false

income tax returns and obstructing the administration of federal tax laws. United States v. Davis,

539 Fed. Appx. 279, 280 (4th Cir. 2013) (per curiam). In this case captioned: “Action of Trepass

and Bivens Action Pursuant to Title 28 US Code, § 1331,” plaintiff sues the United States, an

unnamed United States Attorney, and “3 Unknown Agents.” Compl. Caption. Plaintiff alleges,

among a host of wrongs stemming from his convictions, that the “criminal indictment filed by

the United States of America, by and through the United States Attorney is filed without being

supported by oath or affirmation,” and that the “verdict is void because the court had no

jurisdiction pursuant to Federal law[.]” Compl. at 2, 12. Plaintiff seeks (1) a declaration that the

defendants lack jurisdiction to enforce the statutes under which he was convicted; (2) injunctive

relief in the form of an order to cease and desist all enforcement activities and to compel his




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release from incarceration, id. ¶¶ 139-44; and (3) money damages in the amount of $1,000 “per

minute for each minute of incarceration,” id. ¶ 138.

       Defendants move to dismiss pursuant to Rules 12(b)(1), 12(b)(3) and 12(b)(6) of the

Federal Rules of Civil Procedure. Defs.’ Mot. to Dismiss, ECF No. 6. Because the Bivens claim

is barred by Heck v. Humphrey, 512 U.S. 477 (1984), and the United States enjoys sovereign

immunity, the Court grants defendants’ motion for the reasons explained below. 1

                                    I. LEGAL STANDARDS

       1. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

       Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies

outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court

of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is the

plaintiff's burden to establish that the court has subject matter jurisdiction. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992).

       Because subject matter jurisdiction focuses on the Court’s power to hear a claim, the

Court must give the plaintiff's factual allegations closer scrutiny than would be required in

deciding a Rule 12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal

Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the Court is not limited

to the allegations contained in the complaint. See Wilderness Soc'y v. Griles, 824 F. 2d 4, 16

n.10 (D.C. Cir. 1987).


1
    The Court will not address defendants’ valid argument for dismissal under Rule 12(b)(3) for
improper venue. See Defs.’ Supp’g Mem. at 5-7, ECF No. 6-1. Should plaintiff satisfy Heck v.
Humphrey’s “habeas-channeling rule,” Davis v. U.S. Sentencing Comm'n, 716 F.3d 660, 663
(D.C. Cir. 2013), the proper venue for his Bivens action would be a judicial district in North
Carolina, which is where the offending defendants are located and the alleged wrongdoing
occurred. See 28 U.S.C. § 1391(b) (general venue provision for bringing civil actions).

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       2. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

       The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendant fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate

likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v.

Fitzgerald, 457 U.S. 800 (1982). A court considering such a motion presumes that the

complaint’s factual allegations are true and construes them liberally in the plaintiff’s favor. See,

e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).

       It is not necessary for the plaintiff to plead all elements of a prima facie case in the

complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002); Bryant v. Pepco, 730

F. Supp. 2d 25, 28-29 (D.D.C. 2010). Nevertheless, “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff's factual allegations “must be

enough to raise a right to relief above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56

(citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556

U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a

court presume the veracity of the legal conclusions that are couched as factual allegations. See

Twombly, 550 U.S. at 555.



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                                         II. DISCUSSION

       1. Sovereign Immunity

       Sovereign immunity shields the federal government and its agencies from suit and is

“jurisdictional in nature.” American Road & Transp. Builders Ass’n v. EPA, 865 F. Supp. 2d 72,

79 (D.D.C. 2012) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)) (other citations omitted).

The government may waive immunity, but such a waiver “must be unequivocally expressed in

statutory text, and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations

omitted); see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (“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.”). To survive a motion to dismiss under Rule 12(b)(1), “[t]he

plaintiff bears the burden of establishing both the court's statutory jurisdiction and the

government’s waiver of its sovereign immunity.” American Road & Transp. Builders Ass’n, 865

F. Supp. 2d at 80 (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Tri–

State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003); Jackson v. Bush,

448 F. Supp. 2d 198, 200 (D.D.C. 2006)).

       The basis of plaintiff’s claim against the United States is neither stated nor apparent.

Bivens establishes a cause of action for damages against a federal employee in his or her

individual capacity for constitutional violations. Simpkins v. District of Columbia Government,

108 F.3d 366, 369 (D.C. Cir. 1997). “For people in Bivens’ shoes, it is damages or nothing.”

Bivens, 403 U.S. at 410. The United States has not consented to be sued for damages based on

constitutional violations, Meyer, 510 U.S. at 476-78, and therefore is not subject to suit under

Bivens. In addition, defendants argue correctly that to the extent plaintiff is suing under the

Federal Tort Claims Act (“FTCA”), which does waive the sovereign’s immunity as to certain



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enumerated claims for money damages, the Act “expressly exempts claims arising from the

assessment or collection of taxes.” Defs.’ Mem. at 10 (citing 28 U.S.C. § 2680(c)). Even if an

FTCA claim were appropriate under the circumstances, plaintiff has failed to show that he has

exhausted his administrative remedies by “first present[ing] the claim to the appropriate Federal

agency[,]” 28 U.S.C. § 2675, and this exhaustion requirement is jurisdictional. See

Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per curiam) (affirming

the district court’s dismissal of unexhausted FTCA claim “for lack of subject matter

jurisdiction”). Hence, as to the United States, the Court will grant defendants’ motion to dismiss

under Rule 12(b)(1).

       2. Bivens Claim

       The gravamen of the prolix complaint is a challenge to the sentencing court’s jurisdiction

and the validity of plaintiff’s convictions. See Compl. at 12 (claiming that “since there has never

been an assessment, the IRS has never identified statutes and implementing regulations

authorizing them to charge me with violations [of certain Tax Code provisions]”). If plaintiff

were to prevail, his convictions could not stand. In fact, plaintiff’s complaint demands his

immediate release. Compl. ¶ 139. Consequently, the claims presented in this case are not

cognizable absent a showing that the convictions have been “reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal authorized to make such determination, or

called into question by a federal court’s issuance of a writ of habeas corpus.” 2 Heck, 512 U.S. at

486–87 (citation omitted). The Heck bar applies to suits for damages or equitable relief. Harris
2
      Plaintiff did not prevail on direct appeal, see United States v. Davis, 539 Fed. Appx. 279,
280, 284 (4th Cir. 2013) (per curiam) (rejecting, inter alia, plaintiff’s “frivolous argument” that
“the indictment is not bona fide or that the government knowingly filed a document that is not
what it purports to be”), and he improperly applied for habeas relief in this Court. See Davis v.
United States, No. 14-1619, 2014 WL 5530122 (D.D.C. Nov. 3, 2014) (dismissing plaintiff’s
habeas action without prejudice to filing motion under 28 U.S.C. § 2255 in the sentencing court).
.

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v. Fulwood, --- Fed.Appx. ---, 2015 WL 3370277, at *1 (D.C. Cir. Apr. 21, 2015) (citing

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)); see also Williams v. Hill, 74 F.3d 1339, 1340

(D.C. Cir. 1996) (per curiam) (“As to Williams’ claim for injunctive and declaratory relief, it is

well-settled that a prisoner seeking relief from his conviction or sentence may not bring such an

action.”) (citing Preiser v. Rodriguez, 411 U.S. 475 (1973); Chatman-Bey v. Thornburgh, 864

F.2d 804, 808-10 (D.C. Cir. 1988) (en banc)).

       Defendants contend that “since [p]laintiff attempts to challenge his judgment of

conviction both directly and indirectly, his complaint must be dismissed for lack of subject

matter jurisdiction.” Defs.’ Mem. at 8. But the Court of Appeals has made clear that “the

dismissal of a section 1983 [or Bivens] lawsuit . . . based on prematurity under Heck v.

Humphrey is for failure to state a claim[.]” In re Jones, 652 F.3d 36, 38 (D.C. Cir. 2011).

Hence, the Court will dismiss the Bivens claim under Rule 12(b)(6).

                                             CONCLUSION

       For the foregoing reasons, defendants’ motion to dismiss is granted. A separate Order

accompanies this Memorandum Opinion.




                                                     ________/s/____________
                                                     RUDOLPH CONTRERAS
                                                     United States District Judge

DATE: July 14, 2015




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