Herbert v. Holder

• Court: District Court, District of Columbia
• Decided: December 9, 2010
• Docket: Civil Action No. 2010-2090
• Status: Published

Opinion

FILED DEC - 9 ;:810 UNr(ED STATES DISTRICT COURT Clerk. U.S. District & Bankruptcy FOR THE DISTRICT OF COLUMBIA Courts for the District of Columbia

George Enrique Herbert, ) ) Plaintiff, )

v. ) ) Civil Action No. 10 2090 ) Eric Holder et al., ) ) Defendants. )

MEMORANDUM OPINION

This matter is before the Court on its initial review of plaintiff s pro se complaint and

application to proceed in forma pauperis. The application will be granted and the complaint

dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring

dismissal of an action "at any time" the Court determines that it lacks subject matter jurisdiction).

Plaintiff, a prisoner at the Federal Correctional Complex in Coleman, Florida, "sues

Defendant Eric Holder and the United States of America" for "false imprisonment, mental injury,

defamation of character, slander, libel, and violations of the extradition treaty .... " Compl. at 1.

He invokes the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., and Bivens v. Six

Unknown Named Agents of Federal Bureau o/Narcotics, 403 U.S. 388 (1971). Bivens creates a

cause of action against federal officials found to have violated an individual's constitutional

rights, the remedy of which is monetary damages. See Davis v. Passman, 442 U.S. 228, 245

(1979) (stating that under Bivens, "it is damages or nothing") (citation and internal quotation

marks omitted). The United States has not consented to be sued for constitutional torts. FDIC

v. Meyer, 510 U.S. 471, 478 (1994). Plaintiffs purported Bivens claim therefore is barred by

sovereign immunity.

:3 An FTCA claim is maintainable only after the plaintiff has exhausted his 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. Us. Postal Service, 937 F. Supp. 11, 14 (D.D.C. 1996). Because plaintiff has not

indicated that he exhausted his administrative remedies, the complaint will be dismissed. 1 See

Abdurrahman v. Engstrom, 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.

United States District Judge '3 Date: December _ _, 2010

1 Even if plaintiff has exhausted his administrative remedies, this judicial district is not the proper venue for litigating plaintiff s FTC A claim arising from his conviction in the Southern District of New York. See Compl. at 2, ~ 1; 28 U.S.C. § 1402(b) (requiring such claims to be prosecuted "only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred").