Zhao v. Unknown Agent of the Central Intelligence Agency

• Court: District Court, District of Columbia
• Decided: November 16, 2009
• Docket: Civil Action No. 2009-1986
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FILED FOR THE DISTRICT OF COLUMBIA NOV 1 6 2009 NANCY MAYER WHITTINGTON. CLERK QIAN IDRAHIM ZHAO, U.S. DISTRICT COURT

Plaintiff,

v. Civil Action No. 09-1986

UNKNOWN CIA AGENT, et aI.,

Defendants.

MEMORANDUM OPINION

This matter is before the Court on plaintiff s application to proceed in forma pauperis and

pro se complaint. The application will be granted and the complaint will be dismissed.

Plaintiff alleges that, in 2004 in the District of Columbia, an unidentified agent of the

Central Intelligence Agency ("CIA") arrested him, searched his person and property, falsely

imprisoned him, and seized his passport, among other property. Further, plaintiff alleges that his

passport now is in the possession of the Department of Homeland Security ("DHS"), and that the

agency has refused to return it. According to plaintiff, both the unidentified CIA agent and the

DHS have violated his rights under the Fourth and Fifth Amendments to the United States

Constitution, and he demands compensation for the loss of his property and lost income, and for

emotion al distress.

It appears that plaintiffs sole means of recovery comes under the Federal Tort Claims

Act ("FCTA"), see 28 U.S.C. § 1346(b)(1). The FTCA provides that the "United States shall be

liable [for tort claims] in the same manner and to the same extent as a private individual under

like circumstances." 28 U.S.c. § 2674(a). It requires that a claimant present his claim to the

appropriate federal agency prior to filing a civil action in a federal district court. McNeil v.

United States, 508 U.S. 106, 113 (1993); 28 U.S.C. § 2675(a) (requiring claimant to present claim "for money damages for injury or loss of property ... caused by the negligent or wrongful

act or omission of any employee of the Government while acting within the scope of his office or

employment ... to the appropriate Federal agency" from which written notice of the denial of the

claim has been forwarded to the claimant before a suit may be filed). It does not appear that

plaintiff has exhausted of his administrative remedies by having presented his claim first to the

appropriate agency and, absent exhaustion, this Court lacks subject matter jurisdiction. See

McNeil v. United States, 508 U.S. 106, 113 (1993).

Even if plaintiff had exhausted his available administrative remedies, plaintiff cannot

prevail because "the United States simply has not rendered itself1iable under [the FTCA] for

constitutional tort claims." Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. at 478; see Zakiya v.

United States, 267 F. Supp. 2d 47,56 (D.D.C. 2003. Further, the FTCA expressly excludes relief

for a claim of false imprisonment. 28 U.S.C. § 2680(h).

The Court will dismiss this action for lack of subject matter jurisdiction. An Order

consistent with this Memorandum Opinion is issued separately on this same date.

DATE: (\ I (O{O't un~i!~U~