Demartino v. United States Copyright Office

• Court: District Court, District of Columbia
• Decided: July 31, 2012
• Docket: Civil Action No. 2012-1256
• Status: Published

Opinion

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.§l_‘l. l l liix? UNITED STATES DISTRICT COURT clerk j b w mm _3_ B'.,»,A»,ruptgy FOR THE DISTRICT OF COLUMBIA Courts m tr‘e `HS*JA'N~ O' l/@l“mb'a

) Thomas D. DeMartino, ) ) Plaintiff, )

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v. ) Civil Action No. ) United States Copyright Office et al., ) ) Defendants. ) ) MEMORANDUM OPINION

This matter is before the Court on its initial review of plaintifF s complaint against two United States agencies and his application to proceed in.forma pauperis. The application will be granted and the case will be dismissed for lack of subject matter jurisdiction See Fed. R. Civ. P. l2(h)(3) (requiring dismissal of an action "at any time" the Court determines that it lacks subject matter jurisdiction).

Plaintiff, a resident of Salem, Oregon, sues the United States Copyright Office and the Library of Congress for monetary damages exceeding $144,000 and equitable relief. See Compl. at 8. The gist of the complaint is that the Copyright Office allegedly "destroyed evidence of Plaintiff`s future copyright claims, destroying books on flle," apparently while accepting "a fee for the service of copyright protection." Ia'. at l-2. Allegedly, plaintiff "registered two literary volume[s] on July 27, 2002 for copyright protection and paid the required fee, enclosing two literary works." Ia'. at 2. "Plaintiff contacted the defendants on several occasions to determine the whereabouts of [his works]," but was unsuccessful. ld. at 3-4. Allegedly, plaintiff was told

"that if [his works] were not on file with the Library of Congress, [] they would have

been destroyed, sold, or donated without any indication on the copyright record, or Notice sent to copyright holders." ld. at 4.

Plaintiff invokes 42 U.S.C §§ 1983, 1985, 1988, Compl. at l, but none ofthose statutes authorizes a cause of action against the United States. Furtherrnore, the United States has not consented to be sued for constitutional torts. See 28 U.S.C. § 1346(b); Jones v. U.S., 296 Fed. Appx. 82, 83 (D.C. Cir. 2008) (citing Clark v. Library ofCongress, 750 F.2d 89, 103 n.31 (D.C. Cir. 1984)).

A claim for monetary damages against the United States is cognizable under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq. Such a claim is maintainable, however, only after the plaintiff has exhausted administrative remedies by "first present[ing] the claim to the appropriate Federal agency. . . ." 28 U.S.C. § 2675. This exhaustion requirement is jurisdictional. See GAF Corp. v. United States, 818 F.2d 901, 917-20 (D.C. Cir. 1987); Jackson v. United States, 730 F.2d 808, 809 (D.C. Cir. 1984); Stokes v. U.S. Postal Servz'ce, 937 F. Supp. 1l, 14 (D.D.C. 1996). Since plaintiff has not indicated that he exhausted his administrative remedies under the FTCA, this case will be dismissed. See Abdurrahman v. Engstrorn, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005) (per curiam) ("[T]he district court properly dismissed case [based on unexhausted FTCA claim] for lack of subject matter jurisdiction."). A separate Order

accompanies this Memorandum Opinion.

w United\$ta.tes District Judge Date: July i , 2012