                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


Pablo J. Figueroa Vazquez,            :
                                      :
               Plaintiff,             :
                                      :
        v.                            :               Civil Action No. 12-1730 (CKK)
                                      :
                                      :
Federal Bureau of Prisons et al.,     :
                                      :
               Defendants.            :


                                  MEMORANDUM OPINION

        Plaintiff, a federal prisoner proceeding pro se, alleges that he was deprived of medical

care to treat a “serious burn” he sustained while confined at the Metropolitan Detention Center

(“MDC”) in Guaynabo, Puerto Rico. Plaintiff filed this action from the Federal Prison Camp in

Edgefield, South Carolina, against the U.S. Bureau of Prisons and the “Department of Health

Care” at MDC. Compl. Caption. Claiming violations of the Fifth Amendment’s due process

clause and the Eighth Amendment’s proscription against cruel and unusual punishment, see

Compl. at 5, plaintiff seeks declaratory and injunctive relief and $150,000 in monetary damages

for the alleged inadequate medical care he received at MDC. See Compl. at 5-6 (“Prayer for

Relief”); id. at 4 (listing alleged inadequate medical services and describing “the institution”

providing them as “a secure complex of building [sic] constructed in Guaynabo, Puerto Rico”).

In addition, plaintiff seeks class certification pursuant to Federal Rule of Civil Procedure 23. Id.

at 5.

        Defendants have moved to dismiss the case under Federal Rule of Civil Procedure

12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(3) for improper venue, and Rule



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12(b)(6) for failure to state a claim upon which relief can be granted. Defs.’ Mot. to Dismiss

[Dkt. # 10]. In response, plaintiff has filed “Written Objections to Affidavit,” [Dkt. # 15], and a

“Motion for Preliminary Hearing Under Rule 12(i)” [Dkt. # 16], seeking a hearing on the

jurisdictional question. For the following reasons, the Court finds subject matter jurisdiction

wanting and, thus, will grant defendants’ motion to dismiss under Rule 12(b)(1) and will deny

plaintiff’s motion for a hearing as moot. See Rule 12(h)(3) (requiring dismissal of a case “at any

time” subject matter jurisdiction is found wanting). In addition, the Court will deny plaintiff’s

request for class certification.

        1. Sovereign Immunity

        The named defendants are components of a United States agency, and “[t]he United

States is protected from unconsented suit under the ancient common law doctrine of sovereign

immunity.” Shuler v. U.S. 531 F.3d 930, 932-33 (D.C. Cir. 2008) (quoting Gray v. Bell, 712

F.2d 490, 506 (D.C. Cir. 1983)). Plaintiff invokes 42 U.S.C. § 1983 as the basis of jurisdiction

for his claims arising under the Constitution. See Compl. at 2. That statute authorizes a cause of

action against individuals who are alleged to have violated one’s rights “secured by the

Constitution and [federal] laws” while acting under the authority of “any statute, ordinance,

regulation, custom, or usage, of any State . . . or the District of Columbia . . . .” 42 U.S.C. §

1983. Since the named defendants are not state actors, § 1983 is inapplicable. Construing the

complaint as brought under the federal analog to § 1983 created by Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), is unavailing because “[i]t is . .

. well settled that Bivens liability cannot be imposed on an agency of the Federal Government.”

Drake v. FAA, 291 F.3d 59, 72 (D.C. Cir. 2002) (citing FDIC v. Meyer, 510 U.S. 471, 475-79

(1994)); see id. (finding no need to linger in dismissing Bivens complaint naming “only the FAA



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itself as defendant”). Therefore, the Court finds that it lacks subject matter jurisdiction over

plaintiff’s claim for damages against the only named agency defendants for alleged constitutional

violations. 1 See Kim v. U.S., 632 F.3d 713, 715 (D.C. Cir. 2011) (affirming “jurisdictional

dismissal” of Bivens claim against IRS agents in their official capacities).

       Through the Federal Tort Claims Act (“FTCA”), the United States has consented to be

sued for money damages for certain torts under certain conditions. See 28 U.S.C. §§ 1346(b)(1),

2671-80. The FTCA does not authorize a suit for constitutional torts, however. See FDIC v.

Meyer, 510 U.S. at 475-79; Dancy v. Dep=t of Army, 897 F. Supp. 612, 614 (D.D.C. 1995) (citing

cases). Besides, plaintiff cannot otherwise maintain a tort claim against the United States

without first exhausting his administrative remedies by "first present[ing] the claim to the

appropriate Federal agency. . . .” 28 U.S.C. ' 2675. Plaintiff has not indicated that he has

pursued has administrative remedies, and the “presentment” requirement is “jurisdictional.”

GAF Corp. v. United States, 818 F.2d 901, 917-20 (D.C. Cir. 1987); see Abdurrahman v.

Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per curiam) (A[T]he district court properly

dismissed case [based on unexhausted FTCA claim] for lack of subject matter jurisdiction.@). 2

1
    Since a Bivens lawsuit is properly brought against a federal official in his or her individual or
personal capacity, “a plaintiff must plead that each Government-official defendant, through the
official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009); see Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C. Cir. 1997) (a
Bivens claim requires a showing “that the defendant federal official was personally involved in
the illegal conduct”). Even if plaintiff had named an individual defendant, this venue in the
District of Columbia is not the correct venue for litigating his Bivens claim because the alleged
events occurred in Puerto Rico. See 28 U.S.C. § 1391(b) (establishing the proper venue under
the circumstances of this case as a judicial district where “a substantial part of the events or
omissions giving rise to the claim occurred,” which is the United States District Court for the
District of Puerto Rico).
2
     Even if plaintiff had properly exhausted a cognizable FTCA claim, similar to the Bivens
claim, this venue is improper because the FTCA specifically requires such a claim to be litigated
"only in the judicial district where the plaintiff resides or wherein the act or omission complained
of occurred." 28 U.S.C. § 1402(b). Nothing in the complaint suggests that plaintiff is a District

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Therefore, the Court finds that it lacks subject matter jurisdiction over any cognizable FTCA

claim.

         2. Mootness

         “Federal courts lack jurisdiction to decide moot cases because their constitutional

authority extends only to actual cases or controversies.” Iron Arrow Honor Society v. Heckler,

464 U.S. 67, 70 (1983). Since plaintiff is no longer incarcerated at the MDC, his claim for

injunctive relief is moot, and “the availability of [declaratory] relief presupposes the existence of

a judicially remediable right.” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011) (citations and

internal quotation marks omitted; alteration in original); see Cameron v. Thornburgh, 983 F.2d

253, 257 (D.C. Cir. 1993) (agreeing with the district court’s finding that “Cameron's impending

transfer to Leavenworth made the claim for an injunction moot”). Therefore, the Court finds that

it also lacks subject matter jurisdiction over plaintiff’s claims for equitable relief.

         3. Class Certification

         Plaintiff, purporting to sue as representative of an unidentified class of individuals, seeks

class certification. See Compl. at 3, 5. As a general rule applicable here, an individual appearing

pro se may not represent other individuals in federal court, see 28 U.S.C. ' 1654, and courts have

routinely denied a prisoner’s request to represent a class of prisoners without the assistance of

counsel. See Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam) ("[I]t is

plain error to permit [an] imprisoned litigant who is unassisted by counsel to represent his fellow

inmates in a class action"); DeBrew v. Atwood, 847 F. Supp. 2d 95, 104-05 (D.D.C. 2002)

(“Plaintiff is without legal training, and hence he is unable to represent the interests of the

proposed class of inmates.”) (citations omitted); Maldonado v. Terhune, 28 F. Supp. 2d 284, 288


of Columbia resident. Hence, any exhausted FTCA claim, like any Bivens claim, is properly
litigated in the United States District Court for the District of Puerto Rico.

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(D.N.J. 1998) (quoting Caputo v. Fauver, 800 F. Supp. 168, 170 (D.N.J. 1992), aff'd, 995 F.2d

216 (3d Cir. 1993)) ("Courts have consistently held that a prisoner acting pro se ‘is inadequate to

represent the interests of his fellow inmates in a class action.’ ”). Therefore, plaintiff’s request

for class certification is hereby denied.

                                              CONCLUSION

       For the foregoing reasons, defendants’ motion to dismiss for want of subject matter

jurisdiction is granted and plaintiff’s motion for a preliminary hearing on the jurisdictional

question is denied as moot. A separate Order of dismissal accompanies this Memorandum

Opinion.


                                               __________s/s__________________
                                               COLLEEN KOLLAR-KOTELLY
DATE: November 21, 2013                        United States District Judge




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