UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JIEMIN BAI )
)
Plaintiff, )
)
)
v. ) Civil Action No. 21-cv-390 (TSC)
)
MATTHEW M. GRAVES, United States )
Attorney of the District of Columbia, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Jiemin Bai filed this civil action, pro se, alleging tort injuries pursuant to the
Federal Tort Claims Act (“FTCA”), Administrative Procedure Act (“APA”) violations, and civil
rights violations under 42 U.S.C. §§ 1981 and 1983 against the U.S. Attorney for the District of
Columbia in his official capacity, and former U.S. Attorney Jessie Liu in her official and
individual capacities. Several months later, Ning Ye appeared as counsel on Plaintiff’s behalf.
Notice of Appearance, ECF No. 10. Shortly thereafter, Defendants filed a motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the court dismissed the
case without prejudice. See Order Granting Mot. to Dismiss, ECF No. 17. Plaintiff now seeks
leave to file a First Amended Complaint (“FAC”), Corrected Mot. for Leave to File First Am.
Compl., ECF No. 25. Plaintiff claims that if granted leave, he intends to add as a defendant D.C.
Department of Corrections director Thomas N. Faust in his official capacity, and to bring
additional claims against Defendants under the Bivens doctrine and the Torture Victim Protection
Act (“TVPA”). See FAC ¶¶ 47–52, ECF No. 25-3. For the reasons set forth below, the court will
DENY Plaintiff’s Motion.
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I. LEGAL STANDARD
Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint “shall be
freely given when justice so requires.” See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.
1996). However, courts must consider “undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment,
etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment would be futile and should be
denied if it merely restates the same facts as the original complaint in different terms, reasserts a
claim on which the court previously ruled, fails to state a legal theory, or could not withstand a
motion to dismiss. See Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002);
see also Aguiar v. Drug Enf’t Admin., 992 F.3d 1108, 1113–14 (D.C. Cir. 2021) (“The district
court properly denies a motion to amend a complaint as futile if the proposed claim would not
survive a motion to dismiss.”).
II. ANALYSIS
Plaintiff’s FAC asserts seven claims against three government official defendants, none
of which can succeed. Plaintiff’s third, fourth, fifth, and sixth claims under the FTCA again fail
to plead administrative exhaustion. See Am. Mem. Op. at 2, ECF No. 16. Plaintiff’s seventh
claim, brought under the APA, likewise does not cure the Complaint’s deficiencies. Id. at 3.
The second claim, asserting civil and constitutional right violations under Sections 1981, 1983,
and Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), does
not adequately plead any of those causes of action. FAC ¶¶ 73–77. Lastly, Plaintiff’s first claim
alleges injuries under the TVPA but does not allege that Defendants acted under color of foreign
law, as the statute requires.
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A. Federal Tort Claims Act Claims
The FAC’s FTCA claims are futile for reasons the court has already explained. Under
the FTCA, a federal court only acquires jurisdiction over a tort action against a federal agency
and its officers after the plaintiff has exhausted the available administrative remedies by
submitting his tort claim to the agency, which must provide a final written denial of the claim.
28 U.S.C. § 2675(a). Informal complaints do not suffice. Davis v. United States, 944 F. Supp.
2d 36, 39 (D.D.C. 2013). Further, because the FTCA’s exhaustion requirement is a jurisdictional
prerequisite, the plaintiff bears the burden of pleading exhaustion of administrative remedies to
establish the court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Failure to do so requires dismissal
of the corresponding claims. See McNeil v. United States, 508 U.S. 106, 113 (1993); see also
Smith v. Clinton, 886 F.3d 122, 127 (D.C. Cir. 2018).
As in the original Complaint, the FAC asserts several tort claims against federal officers.
FAC ¶¶ 79–89. Again, however, the FAC alleges no facts showing that Plaintiff exhausted his
administrative remedies. Indeed, Plaintiff acknowledges—despite the fact that he is now
represented by counsel—that he is “uninformed” about available administrative remedies, FAC
at 15, and has only attempted to seek administrative relief by informally sending “express mail”
to the U.S. Department of Justice, FAC ¶ 56. That does not fulfill Plaintiff’s obligation to plead
administrative exhaustion. Nonetheless, he argues that his actions were sufficient given his pro
se status at the time he sent the mail. Id. But the FTCA does not make any exception for pro se
litigants. And the Supreme Court has specifically held that a litigant’s pro se status does not
excuse his failure to timely file an administrative claim before bringing an FTCA action in
federal court. See McNeil, 508 U.S. at 113. Accordingly, Plaintiff’s tort claims could not
withstand a motion to dismiss for lack of jurisdiction and an amendment would be futile.
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B. Administrative Procedure Act Claims
Plaintiff’s revised APA claim fares no better. The court previously dismissed it because
the Complaint failed to proffer specific allegations demonstrating that Defendants’ prosecution
of him was illegal, irregular, or violated the Constitution. See Am. Mem. Op. at 3. The
proposed FAC merely restates the same conclusory assertions as the original Complaint in
different terms. See FAC ¶¶ 78, 91. Moreover, an APA claim “must challenge a final action of
an agency.” Indep. Petroleum Ass’n of America v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 2001).
Plaintiff’s amended claim does not. Because it would not survive a motion to dismiss, the court
will deny leave to amend it.
C. Civil and Constitutional Rights Claims
The court dismissed Plaintiff’s Section 1981 and 1983 claims because the Complaint
failed to show that Defendants Graves and Liu—federal actors—acted under color of state law,
as those statutes require. See Am. Mem. Op. at 3 (citing 42 U.S.C. §§ 1981, 1983); see, e.g.,
Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005). The proposed FAC is
similarly deficient, rendering any other amendments on those claims futile. See FAC ¶¶ 39, 45,
63, 76. Plaintiff does seek to add Faust—a D.C. official—as a defendant to these claims, but
they would not withstand a motion to dismiss either. A Section 1981 claim requires
discrimination in the making and enforcing of contracts, and Plaintiff has not alleged the
existence of a contract. See U.S.C. 42 § 1981. And the Section 1983 claim will necessarily fail
because the FAC does not allege that Faust’s “own individual actions[] violated the
Constitution.” See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Rather, Plaintiff seeks to hold
Faust liable for the constitutional violations committed “by and through [Faust’s] inferior wards
of the D.C. Detention Facilities where Plaintiff was wrongfully jailed.” FAC ¶ 51; see also id.
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¶ 48 (“Defendant Faust had inescapable accountability and liability” because he “exercised
oversight and supervision of all Detention facilities” where Plaintiff’s claims arose). Because
“vicarious liability is inapplicable to . . . § 1983 suits,” Iqbal, 556 U.S. at 676, the FAC’s
allegations do not support a § 1983 claim against Faust.
In addition, Plaintiff’s FAC asserts a Bivens claim against former U.S. Attorney Liu.
FAC ¶¶ 74–77; see Bivens, 403 U.S. 388. It alleges that Liu violated Plaintiff’s First
Amendment rights during his criminal prosecution. See U.S. v. Bai, Case No. 19-cr-34-RCL,
ECF No. 66 at 1 (D.D.C. Dec. 13, 2019). However, this claim cannot succeed because
government prosecutors enjoy absolute immunity for actions taken in their advocatory capacity.
See Imbler v. Pachtman, 424 U.S. 409, 430 (1976). That immunity extends to activities
“intimately associated with the judicial phase of the criminal process.” Id. at 430–431; see also
Buckley v. Fitzsimmons, 509 U.S. 259, 270–71 (1993) (discussing the line that divides the
advocatory activities of a prosecutor that are entitled to absolute immunity from the investigatory
and administrative functions that are entitled to qualified immunity); Bundy v. Sessions, 387 F.
Supp. 3d 121, 128 (D.D.C. 2019) (absolute prosecutorial immunity barred plaintiff’s claims of
retaliatory prosecution for his exercise of First Amendment rights).
Liu was a prosecutor at the time of Plaintiff’s arrest and detention. FAC ¶ 35. Plaintiff
alleges that she violated his First Amendment rights through retaliatory prosecution, “knowing
Plaintiff was exercising his Constitutional Rights to protest.” Id. ¶ 74. He seeks damages for
what he views as a “ruthless prosecution.” Id. ¶ 76. Specifically, he alleges that Liu selectively
prosecuted him and other Chinese protestors to please “patrons” within the Chinese Communist
Party. See id. ¶¶ 25, 28. These alleged actions were performed in Liu’s capacity as a prosecutor.
See Buckley, 509 U.S. at 270. As a result, prosecutorial immunity insulates her from liability for
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her “unquestionably advocatory decision” to prosecute Plaintiff, Moore v. Valder, 65 F.3d 189,
194 (D.C. Cir. 1995), and the proposed amendment raising a Bivens claim against Liu would be
futile.
D. Torture Victim Protection Act Claim
Lastly, Plaintiff requests leave to sue under the TVPA, alleging that Defendants Liu and
Faust subjected him to various acts of “soft-forms of tortures,” including sleep deprivation,
exposure to cold temperatures, denial of Halal food despite Plaintiff’s religious beliefs as a
Muslim, and other forms of inhumane treatment. FAC ¶ 64. But Plaintiff cannot bring claims
under the TVPA because the Act provides a cause of action only against foreign, not U.S.,
officials.
The TVPA authorizes victims of torture and extrajudicial killings in violation of
international law to sue certain individuals acting “under actual or apparent authority, or color of
law, of any foreign nation.” 28 U.S.C. § 1350, note § 2(a); see also Nestle USA, Inc. v. Doe, 141
S. Ct. 1931, 1937 (2021). In Doe v. Rumsfeld, this Circuit reaffirmed that the TVPA does “not
include as possible defendants either American government officers or private U.S. persons.”
683 F.3d 390, 396 (D.C. Cir. 2012) (quoting Saleh v. Titan Corp., 580 F.3d 1, 16 (D.C. Cir.
2009)). Here, Defendants are U.S. rather than foreign officials. FAC ¶¶ 33, 35, 52. Plaintiff’s
proposed FAC fails to allege that Defendants acted under color of foreign law and therefore
could not withstand a motion to dismiss. Consequently, this amendment would be futile and the
court will deny leave to file it.
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III. CONCLUSION
For these reasons, the court concludes that granting leave to amend would be futile, as
none of the claims in the FAC could succeed. The court will therefore DENY Plaintiff’s Motion
for Leave to File First Amended Complaint, ECF No. 25. A corresponding Order will
accompany this Memorandum Opinion.
Date: July 21, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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