Jordan v. Fbop Director Offices

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Jeffrey Jordan, : : Plaintiff, : v. : Civil Action No. 17-1409 (CKK) : FBOP Director Offices, : : Defendant. :

MEMORANDUM OPINION

Plaintiff, appearing pro se, filed a complaint in the Superior Court of the District of

Columbia solely against the Federal Bureau of Prisons (“BOP”), which removed the complaint to

this Court pursuant to 28 U.S.C. §§ 1442(a) and 1446. Not. of Removal [Dkt. # 1]. In the

tersely worded complaint, plaintiff alleges that in November 2015, staff at St. Elizabeths

Hospital in Washington, D.C., hit him in his right eye, which was “injure[d] already.” 1 As a

result, plaintiff seeks $25 million in monetary damages. Compl. [Dkt. # 1-1 at 2].

Pending is BOP’s Motion to Dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Procedure [Dkt. # 6]. On September 27, 2017, plaintiff was ordered to respond to

defendant’s motion by November 6, 2017, or face possible dismissal of the case. See Order

[Dkt. # 7]. Plaintiff has neither complied with the order nor requested additional time to comply.

Consistent with the advisements in the order, the Court finds that plaintiff has conceded

1 In contrast to the federal entity sued in this case, St. Elizabeths Hospital is an entity of the District of Columbia Department of Behavioral Health, see https://dbh.dc.gov/page/saint- elizabeths-hospital; it cannot be sued in its own name. See Univ. Legal Servs., Inc. v. St. Elizabeths Hosp., 2005 WL 3275915, at *6 (D.D.C. July 22, 2005) (dismissing action against St. Elizabeths Hospital as a “District agency” not amenable to suit).

1 defendant’s arguments for dismissal and, for the reasons explained below, agrees that dismissal

is warranted under Rule 12(b)(1) for lack of subject matter jurisdiction.

First and foremost, defendant argues correctly that dismissal is necessitated by the

derivative jurisdiction doctrine. See Def.’s Mem. at 6-8 [Dkt. # 6-1]. Under that doctrine, which

“still applies to claims removed under [§] 1442, . . . a federal court’s jurisdiction must ‘mirror the

jurisdiction that the state court had over the action prior to removal.’” Johnson v. D.C. Metro

Transit Auth., 239 F. Supp. 3d 293, 295 (D.D.C. 2017) (quoting Merkulov v. United States Park

Police, 75 F. Supp. 3d 126, 129 (D.D.C. 2014) (other citation omitted)). If the state court never

had jurisdiction over the subject matter or the parties, the federal court cannot “acquire

jurisdiction,” even if it could have “in a like suit originally brought” in federal court. Lambert

Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 382 (1922). Notwithstanding that plaintiff

has yet to allege facts implicating a federal employee in the alleged misconduct, any personal

injury claim plaintiff may have against BOP for monetary damages must be pursued under the

Federal Tort Claims Act (“FTCA”), which grants “exclusive jurisdiction” of such claims in the

federal district courts. 28 U.S.C. § 1346(b); see id. § 2679(a) (“the remedies provided [under the

FTCA] shall be exclusive”). As a result, this Court lacks jurisdiction over the removed case

because D.C. Superior Court “never acquired jurisdiction over either the subject matter or the

[BOP] as a United States agency.” Johnson, 239 F. Supp. 3d at 296.

Even if this action had originated in this Court, BOP argues correctly that subject matter

jurisdiction still is lacking because plaintiff has not pursued, let alone exhausted, his

administrative remedies under the FTCA. See Def.’s Mem. at 8-9 (citing Decl. of Richard J.

Hansford ¶¶ 5-6 [Dkt. 6-2]). Under the doctrine of sovereign immunity, “the United States may

2 not be sued without its consent and . . . the existence of consent is a prerequisite for jurisdiction.”

United States v. Mitchell, 463 U.S. 206, 212 (1983). Such consent may not be implied, but must

be “unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992)

(citation and internal quotation marks omitted). The FTCA waives the United States’ immunity

under limited circumstances. It states: “[a]n action shall not be instituted [under the FTCA]

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,” or unless the agency has failed to render a “final disposition of a claim within six months

after it is filed,” which then is “deemed a final denial of the claim[.]” 28 U.S.C. § 2675(a). It is

established in this circuit that an FTCA claim not previously presented to the appropriate agency

is barred on “jurisdictional” grounds. Ali v. Rumsfeld, 649 F.3d 762, 775 (D.C. Cir. 2011)

(citation and internal quotation marks omitted); see Simpkins v. District of Columbia Gov’t, 108

F.3d 366, 371 (D.C. Cir. 2007) (“This court and the other courts of appeals have treated the

FTCA’s requirement of filing an administrative complaint with the appropriate agency prior to

instituting an action as jurisdictional.”) (citation omitted)). And “[w]ith the case in this posture,

the court could no more rule in favor of the government than against it.” Simpkins, 108 F.3d at

371. Accordingly, the Court will grant defendant’s motion to dismiss for want of subject matter

jurisdiction and will dismiss the case without prejudice. A separate order accompanies this

Memorandum Opinion.

__________s/s__________________ COLLEEN KOLLAR-KOTELLY United States District Judge Dated: January 5, 2018