Harper v. United States

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Darrell J. Harper, ) ) Plaintiff, ) ) Case: 1:15—cv-O1172 v. ) Assigned To : Unassigned ) Assign. Date : 7/21/2015 United States of America, ) Description: Pro Se Gen, Civil ) Defendant. ) MEMORANDUM OPINION

This matter is before the Court on its initial review of plaintiffs pro se complaint and application to proceed in forma pauperis. The Court will grant plaintiff’s application and dismiss the complaint for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring the court to dismiss an action “at any time” it determines that subject matter jurisdiction is wanting).

Plaintiff is a Texas state prisoner incarcerated in Huntsville, Texas. He purports to sue the United States under Bivens v. Six Unknown Named Agents, 403 US. 388 (1971), which

authorizes a private cause of action against federal officials for violating constitutional rights.

Plaintiff demands $100 million in monetary damages.

Since plaintiff has not named an individual defendant, his Bivens claim fails as a matter of law. See Ashcroft v. Iqbal, 556 US. 662, 676 (2009) (In a Bivens lawsuit, “a plaintiff must plead that each Govemment-official defendant, through the official's own individual actions, has violated the Constitution”). Regardless, under the doctrine of sovereign immunity, the United

States is subject to suit only upon consent, which must be clear and unequivocal. United States v.

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Mitchell, 445 US. 535, 538 (1980) (citation omitted); see Lane v. Pena, 518 US. 187, 192 (1996) (the United States may be sued only upon consent “unequivocally expressed in statutory text[.]”). The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671—80, provides a limited waiver of the sovereign’s immunity for money damages “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.” Id., § l346(b)(l). The United States has not consented to be sued for constitutional violations. See FDIC v. Meyer, 510 US. 471, 476-78 (1994).

To the extent that plaintiff is suing for “negligent supervision,” Compl. at 1, jurisdiction is wanting because plaintiff has not indicated 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 (DC. Cir. 2005) (per curiam) (affirming the district court’s dismissal of unexhausted

FTCA claim “for lack of subject matter jurisdiction”); accord Simpkins v. District of Columbia

Gov ’t, 108 F.3d 366, 371 (DC. Cir. 2007). Hence, this case will be dismissed. A separate Order

nited State ' tric Judge

accompanies this Memorandum Opinion.

,/ DATE: July [5 ,2015