                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          :
HECTOR ESPINOSA,                          :
                                          :
                        Plaintiff,        :
                                          :
      v.                                  :                  Civil Action No. 19-3594 (ABJ)
                                          :
FCC COLEMAN (MEDIUM),                     :
                                          :
                        Defendant.        :
__________________________________________:


                                 MEMORANDUM OPINION

       This matter is before the Court on the Defendant’s Motion to Dismiss or, in the Alternative,

for Summary Judgment. For the reasons discussed below, the Court GRANTS the motion.

I. BACKGROUND

       A. Procedural History

       Plaintiff filed his complaint in the Small Claims Branch of the Superior Court of the District

of Columbia’s Civil Division on November 7, 2019. See Compl. (ECF No. 1-1) at 1 (page numbers

designated by CM/ECF). Defendant removed this action (ECF No. 1) on November 29, 2019, and

filed its dispositive motion (ECF No. 5) on January 30, 2020. On January 31, 2020, the Court

issued an order (ECF No. 6) advising Plaintiff of his obligations under the Federal Rules of Civil

Procedure and the local rules of this Court to respond to Defendant’s motion.             The order

specifically warned Plaintiff that, if he did not respond by February 28, 2020, the Court may grant

Defendant’s motion without the benefit of his position. To date, Plaintiff neither has filed an

opposition nor requested more time to do so. Mail sent to Plaintiff at his address of record has not

been returned to the Clerk of Court.

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       B. Defendant’s Assertions of Fact

       An inmate in the custody of the Federal Bureau of Prisons (“BOP”) has an individual

commissary inmate account which functions like a bank account: funds from family members and

other sources are deposited into the account, and the inmate may use these funds to purchase items

from a facility’s commissary, among other transactions. Mem. in Support of Mot. to Dismiss, or,

in the Alternative, for Summ. J. (ECF No. 5, “Def.’s Mem.”), Decl. of William Ramirez (ECF No.

5-1, “Ramirez Decl.”) ¶ 4. BOP maintains each account’s records in the Trust Fund Accounting

and Commissary System (“TRUFACS”). Id.

       In a separate system, SENTRY, BOP maintains information about each inmate, including

“release information,” such as “a release address provided by the inmate.” Id. ¶ 5. When an inmate

is released from BOP custody, any funds remaining in his commissary inmate account are released

to him. Id. ¶ 6. Via TRUFACS, a U.S. Treasury check is issued in the inmate’s committed name

and mailed to him at his release address. See id.

       Immediately prior to Plaintiff’s release on March 10, 2017, he was designated to the

Federal Correctional Complex in Coleman, Florida (“FCC Coleman”). Id. ¶ 7. According to

TRUFACS, a balance of $8,532.20 remained in Plaintiff’s account. Id. ¶ 9. According to

SENTRY, Plaintiff provided his ex-wife’s address in New York as his release address. Id. ¶ 8; see

id., Ex. (ECF No. 5-2) at 1, 3.

       “[O]n March 31, 2017, the BOP made an entry into [TRUFACS] and ordered a Treasury

check in favor of Hector Espinosa, Register Number 70527-054.” Id. On April 5, 2017, Treasury

issued a check payable to Plaintiff for $8,532.20. Id. ¶ 10. Information on the cancelled check

indicated that it had been run “through a U.S. bank machine,” id. ¶ 11, with a routing number




                                                2
corresponding to TD Bank, NA. Id. “[T]he cancelled/paid U.S. Treasury check also show[ed]

that the Treasury released the funds on April 24, 2017.” Id.; see generally id., Exs. C-E.1

          Plaintiff alleged that he “never received from FCC Coleman” the funds remaining in his

account, and now demands return of these funds. Compl. at 1.

II. DISCUSSION

          Where, as here, Plaintiff demands money damages from a federal government entity, he

proceeds against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

1346, 2671-80. See, e.g., Edwards v. U.S. Park Police, 251 F. Supp. 3d 109, 111 (D.D.C. 2017)

(citing Richards v. United States, 369 U.S. 1, 6 (1962)); Lempert v. Rice, 956 F. Supp. 2d 17, 28

(D.D.C. 2013) (quoting Jones v. United States, 949 F. Supp. 2d 50, 53 (D.D.C. 2013)). Although

Plaintiff’s failure to name the United States as the defendant ordinarily would call for dismissal

for lack of subject-matter jurisdiction, see Coulibaly v. Kerry, 213 F. Supp. 3d 93, 125 (D.D.C.

2016), the Court construes this pro se Plaintiff’s complaint liberally, see Erickson v. Pardus, 551

U.S. 89, 93-94 (2007) (per curiam), and declines to dismiss the complaint because of this pleading

defect alone. Instead, the Court briefly addresses in turn Defendant’s arguments for dismissal of

Plaintiff’s FTCA claim.

          A. Subject Matter Jurisdiction

          “Federal courts are courts of limited jurisdiction,” possessing “only that power authorized

by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (citing Kokkonen v.

Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). The United States enjoys sovereign

immunity, meaning that it “is immune from suit save as it consents to be sued . . . and the terms of

its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United


1
    See Notice of Filing (ECF No. 7).

                                                   3
States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). “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). One such waiver is the FTCA. See Richards, 369 U.S. at, 6

(“The Tort Claims Act was designed primarily to remove the sovereign immunity of the United

States from suits in tort and, with certain specific exceptions, to render the Government liable in

tort       as     a     private         individual   would   be   under    like    circumstances.”).

          In relevant part, the FTCA provides:

                   An action shall not be instituted upon a claim against the United
                   States for money damages for injury or loss of property or personal
                   injury or death 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, unless the claimant shall have first
                   presented the claim to the appropriate Federal agency and his claim
                   shall have been finally denied by the agency in writing and sent by
                   certified or registered mail.
28 U.S.C. § 2675(a) (emphasis added). “The FTCA bars claimants from bringing suit in federal

court until they have exhausted their administrative remedies,” and a claimant’s “fail[ure] to heed

that clear statutory command” warrants dismissal of his claim for lack of subject-matter

jurisdiction.” Bell v. U.S. Dep’t of Justice, No. 18-CV-2928, 2019 WL 2931334, at *3 (D.D.C.

July 8, 2019) (quoting McNeil v. United States, 508 U.S. 106, 113 (1993)) (alteration in original).

          According to Defendant, Plaintiff did not submit an administrative tort claim to BOP. See

Def.’s Mem., Decl. of Criste Bell ¶ 3.2 FTCA’s exhaustion requirement is jurisdictional, and

absent any showing by Plaintiff that he has exhausted his administrative remedies prior to filing

this lawsuit, the Court lacks subject matter jurisdiction over his claim. See, e.g., Abdurrahman v.

Engstrom, 168 F. App’x 445 (D.C. Cir. 2005) (per curiam) (affirming dismissal of FTCA claim

where claimant did not satisfy FTCA’s exhaustion requirement); Seawright v. Postmaster Gen. of


2
    See Notice of Filing (ECF No. 7).

                                                       4
U.S. Postal Serv., No. 18-CV-460, 2018 WL 6173445, at *2 (D.D.C. Nov. 26, 2018); Bannum,

Inc. v. Samuels, 221 F. Supp. 3d 74, 86 (D.D.C. 2016).

       B. Statute of Limitations

       There is a specific time period within which a claimant must submit his tort claim to the

agency:

               A tort claim against the United States shall be forever barred unless
               it is presented in writing to the appropriate Federal agency within
               two years after such claim accrues or unless action is begun within
               six months after the date of mailing, by certified or registered mail,
               of notice of final denial of the claim by the agency to which it was
               presented.
28 U.S.C. § 2401(b) (emphasis added). “Under the FTCA, a claim accrues by the time a plaintiff

has discovered both his injury and its cause.” Olaniyi v. District of Columbia, 763 F. Supp. 2d 70,

87–88 (D.D.C. 2011) (citations and internal quotation marks omitted). And “[i]f the plaintiff does

not meet the presentment of claim requirements of 28 U.S.C. §§ 2401(b) and 2675(a), the Court

lacks jurisdiction to entertain the claim.” Id. (citations omitted).

       In this case, Plaintiff’s injury would have accrued upon his release from BOP custody in

March 2017. Because Plaintiff did not submit an administrative claim to BOP at all, and certainly

not within the two-year limitations period, the Court lacks subject matter jurisdiction over his

FTCA claim. See Harrison v. United States, No. 16-CV-1829, 2018 WL 4680204, at *5 (D.D.C.

Sept. 28, 2018) (dismissing FTCA claim of claimant who submitted administrative claim to agency

one week after the two-year limitations period expired); Velasco v. United States, 585 F. Supp. 2d

1, 4 (D.D.C. 2008) (concluding that administrative claim accruing upon Plaintiff’s release from

incarceration roughly 30 years prior to filing lawsuit was time-barred).




                                                  5
         C. Venue

         “The FTCA has a special venue provision that provides that FTCA claims ‘may be

prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission

complained of occurred.’” Attkisson v. Holder, 241 F. Supp. 3d 207, 212 (D.D.C. 2017) (quoting

28 U.S.C. § 1402(b)). Defendant argues that, because Plaintiff did not reside in the District of

Columbia and because the events giving rise to his claim occurred in at FCC Coleman, this district

is not the proper venue for adjudication of his FTCA claim.             See Def.’s Mem. at 11.

         Defendant proposes to transfer this action to the U.S. District Court for the Southern

District of Florida where venue appears to be proper. See Def.’s Mem. at 11. The Court declines

to do so. Transfer of this action is futile, given Plaintiff’s apparent failure to exhaust his

administrative remedies which deprives any federal district court of subject matter jurisdiction.

See Goldstein v. United States, No. 01-CV-0005, 2003 WL 24108182, at *5 (D.D.C. Apr. 23,

2003).

III. CONCLUSION

         The Court concludes that, because Plaintiff failed to exhaust his administrative remedies

under the FTCA prior to filing this civil action, the Court lacks subject matter jurisdiction. The

Court, therefore, grants Defendant’s motion. An Order is issued separately.

DATE: May 5, 2020                             /s/
                                              AMY BERMAN JACKSON
                                              United States District Judge




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