Harrod v. United States Parole Commission

• Court: District Court, District of Columbia
• Decided: February 18, 2014
• Docket: Civil Action No. 2013-0774
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) DARRYL HARROD, JR., ) ) Plaintiff, ) ) v. ) Civil Action No. 13-774 (RMC) ) U.S. PAROLE COMMISSION, ) ) Defendant. ) ___________________________________ )

MEMORANUM OPINION

On April 24, 2013, Mr. Harrod, proceeding pro se, filed a Complaint in D.C.

Superior Court, alleging that the U.S. Parole Commission held him without cause for forty days

after failing to credit his time served. See Notice of Removal [Dkt. 1], Complaint [Dkt. 1-1].

The Government filed a motion to dismiss on June 28, 2013, which argued that Mr. Harrod

failed to exhaust administrative remedies, the U.S. Parole Commission was immune from

common law tort suits, and Mr. Harrod failed to properly serve the United States. See Mot. to

Dismiss [Dkt. 4]. Over a five month period, Mr. Harrod filed a motion to quash, Dkt. 6, a

motion for a bench hearing, Dkt. 9, and a motion for a trial date, Dkt. 11. On January 13, 2014,

the Court issued an Order to Show Cause to Mr. Harrod as to why his Complaint should not be

dismissed for lack of subject matter jurisdiction. See Order to Show Cause [Dkt. 13]. In

response, Mr. Harrod wrote that this Court is the “proper venue for the federal [t]ort [c]laim,”

and that he was “denied a duty owed by defendants.” Response to Show Cause [Dkt. 15] at 1.

Because Mr. Harrod failed to exhaust his administrative remedies before filing the instant case,

his Complaint will be dismissed for lack of subject matter jurisdiction.

1 Before filing a lawsuit under the Federal Tort Claims Act (FTCA), a plaintiff

must first present his or her claims to the appropriate government agency. 28 U.S.C. § 2675(a).

In other words, “[t]he FTCA bars claimants from bringing suit in federal court until they have

exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993);

see also Simpkins v. D.C. Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997) (treating exhaustion

requirement as jurisdictional). The district court lacks subject matter jurisdiction over any FTCA

suit filed prematurely, that is, at any time before the appropriate federal agency either denies a

claim “in writing and sent by certified or registered mail,” 28 U.S.C. § 2675(a), or fails “to make

final disposition of a claim within six months after it is filed,” id. “[A]s a general rule, a

premature ‘complaint cannot be cured through amendment, but instead, plaintiff must file a new

suit.’” Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (quoting Sparrow v. U.S. Postal

Serv., 825 F. Supp. 252, 255 (E.D. Cal. 1993)); see also Edwards v. District of Columbia, 616 F.

Supp. 2d 112, 117 (D.D.C. 2009) (concluding that the Court “lack[ed] subject matter jurisdiction

over Plaintiff’s FTCA claims, which were filed before the exhaustion requirement under section

2675(a) was satisfied, and that this jurisdictional defect cannot be cured by the filing of an

amended complaint”).

Mr. Harrod’s Complaint is construed as one bringing a common law tort claim

against the United States Parole Commission. As such, the FTCA is his sole avenue for

recovery. Mr. Harrod filed this lawsuit on April 24, 2013, and he filed an administrative claim

with the Bureau of Prisons on December 4, 2013. See Response to Show Cause, Ex. 1 [Dkt. 15]

at 4. However, Mr. Harrod did not present his claim to the appropriate government agency prior

to filing this action as the FTCA requires. See 28 U.S.C. § 2675(a). Thus, his failure to exhaust

administrative remedies deprives this Court of subject matter jurisdiction over his claim. See

2 McNeil, 508 U.S. at 113 (“The FTCA bars claimants from bringing suit in federal court until

they have exhausted their administrative remedies.”). Mr. Harrod filed this suit prematurely, and

the jurisdictional defect was not cured by filing an administrative claim during the pendency of

the lawsuit.

This case is dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of

subject matter jurisdiction. Accordingly, the Court will grant Defendant’s motion to dismiss,

Dkt. 4, deny Plaintiff’s motions, Dkts. 6, 9 & 11, as moot, and dismiss this civil action. 1 A

memorializing Order accompanies this Memorandum Opinion.

Date: February 18, 2014 /s/ ROSEMARY M. COLLYER United States District Judge

1 Defendant’s motion to dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5) is denied. Because Plaintiff is proceeding pro se and in forma pauperis, he may rely on the Clerk of Court and the United States Marshals Service to effect service of process on his behalf. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(2). He will not be penalized for any errors or failure to effect proper service. See Hardy v. Joseph I. Sussman, P.C., 953 F. Supp. 2d 102, 107–08 (D.D.C. 2013); Rowe v. District of Columbia, 892 F. Supp. 2d 174, 180 (D.D.C. 2012). 3