Wilson v. Conklin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

VINCENT E. WILSON, :
:
Plaintiff, :
v. : Civil Action No. 1:22-cv-03639 (RCL)
:
UNITED STATES OF AMERICA, :
:
Defendant. :

MEMORANDUM OPINION

Currently before the Court is the Motion to Dismiss, ECF No. 9, filed by Defendant, the

United States of America. For the reasons explained below, Defendant’s Motion to Dismiss is

GRANTED, and this case is dismissed pursuant to Federal Rule 12(b)(1) and Rule 12(b)(6).

I. I. BACKGROUND

Plaintiff Vincent E. Wilson initiated this matter on July 7, 2022, by filing a pro se

Complaint (“Compl.”), ECF No. 1-2, in the Superior Court for the District of Columbia, see Wilson

v. Conklin, et al., No. 2022-SC3-000888 (D.C. Super. Ct. filed July 7, 2022). He originally sued

two defendants employed by the United States Marshals Service (“USMS”), Deputy Marshal

Andrew Conklin and District Security Officer Mark Matthews, see Compl. at 1;1 Westfall Notice

(“West. Not.”), ECF No. 3; Westfall Certification (“West. Cert.”), ECF No. 3-1. Plaintiff alleged

that, on January 5, 2016, while incarcerated at the D.C. Central Detention Facility (“CDF”),

Conklin and Matthews assaulted him by yanking him by his shackles and tasing him in the back.

See Compl. at 1. As a result, Plaintiff alleged that he suffers from ongoing pain, difficulty walking,

and emotional distress. See id. He sought in $10,000 in damages and demanded that Conklin and

Matthews be terminated from their employment. See id.

1
In citing to the original Complaint, the Court references the ECF-generated pagination.
1
 Pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), the United States was substituted as

Defendant for Conklin and Matthews, see West. Not.; West. Cert., and this matter was removed to

this District on December 6, 2022, see Notice of Removal, ECF No. 1. Plaintiff did not object to

its removal. See 28 U.S.C. § 1447(c). On February 16, 2023, Defendant filed its first Motion to

Dismiss, ECF No. 4. On the same date, however, Plaintiff filed an Amended Complaint (“Am.

Compl.”), ECF No. 5; therefore, the Court denied Defendant’s first Motion to Dismiss as moot,

see Minute Order (entered Feb. 28, 2023) (citing Fed. R. Civ. P. 15(a)(1)(B)).

Plaintiff’s Amended Complaint, which names the United States as the sole defendant,

presents claims arising from the same operative incident, namely, the alleged prison assault that

took place on January 5, 2016. See Am. Compl. at 2–3. Furthermore, Plaintiff amended increased

his ad damnum clause to $75,000, as relief for the “torts of legal malpractice and assault and

battery,” which he contends concomitantly constitute violations of his Eighth and Fourteenth

Amendment rights. See id. at 1, 3–5.

On April 11, 2023, in response to the Amended Complaint, Defendant filed the pending

Motion to Dismiss. Plaintiff filed his Opposition to the Motion to Dismiss (“Opp’n”), ECF No.

11, on May 5, 2023, to which Defendant filed a Reply, ECF No. 12, on May 18, 2023. On

September 21, 2023, the Court granted Plaintiff leave to file a Surreply (“Surreply”), 2 ECF No.

14.

2
Around the same time, Plaintiff also filed a Motion for Judgment, ECF No. 13, which Defendant opposes, see
Opposition to Plaintiff’s Motion for Judgment, ECF No. 15. The Court denies Plaintiff’s Motion for Judgment for the
reasons stated herein, and because the Motion neither complies with Federal Rule 12(c), see Black v. LaHood, 882 F.
Supp. 2d 98, 107 (D.D.C. 2012) (stating that a party may seek judgment on the pleadings, which include a complaint
and an answer, only after pleadings are closed), nor does it present any meritorious arguments, see Schuler v.
PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir. 2008) (holding that the “moving party [must]
demonstrate[ ] that no material fact is in dispute and that it is entitled to judgment as a matter of law.”) (quoting Peters
v. Nat'l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992)).
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 II. LEGAL STANDARD

A. Federal Rule 12(b)(1)

“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited subject-

matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which Congress grants

jurisdiction.’ ” Bronner v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020) (alterations in original)

(quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012)); see Gunn v. Minton, 568

U.S. 251, 256 (2013) (“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that

power authorized by Constitution and statute.’”) (quoting Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994)). Federal courts have an obligation to ensure that they do not

exceed the scope of their jurisdiction. Absent subject-matter jurisdiction over a case, a court must

dismiss it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07 (2006) (citing Kontrick v. Ryan,

540 U.S. 443, 455 (2004)); Fed. R. Civ. P. 12(h)(3).

To survive a motion to dismiss under Federal Rule 12(b)(1), the plaintiff bears the burden

of demonstrating a court’s subject-matter jurisdiction over the claim at issue. Arpaio v. Obama,

797 F.3d 11, 19 (D.C. Cir. 2015), cert. denied, 577 U.S. 1103 (2016); see also Hertz Corp. v.

Friend, 559 U.S. 77, 96–97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446 (1942). When

considering a motion to dismiss under Rule 12(b)(1), a court must accept as true all uncontroverted

material factual allegations contained in the complaint and “‘construe the complaint liberally,

granting plaintiff the benefit of all inferences that can be derived from the facts alleged’ and upon

such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005); Barr v. Clinton,

370 F.3d 1196, 1199 (D.C. Cir. 2004)). A court need not accept inferences drawn by the plaintiff,

3
however, if those inferences are unsupported by facts alleged in the complaint or amount merely

to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

When reviewing a challenge pursuant to Rule 12(b)(1), a court may consider documents

outside of the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731,

735 n.4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). By considering documents

outside the pleadings when reviewing a motion to dismiss pursuant to Rule 12(b)(1), a court does

not convert the motion into one for summary judgment; “the plain language of Rule 12(b) permits

only a 12(b)(6) motion to be converted into a motion for summary judgment” when documents

extraneous to the pleadings are considered by a court. Haase, 835 F.2d at 905.

B. Federal Rule 12(b)(6)

In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In

Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First,

the tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.” Id. at 678. “Second, only a complaint that states a plausible

claim for relief survives a motion to dismiss.” Id. at 679.

A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that defendant is liable for the misconduct alleged.” Id. at 678. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels

and conclusions” or a “formulaic recitation of the elements of a cause of action,” id. (quoting

Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported
4
by mere conclusory statements, do not suffice.” Id. Additionally, when a plaintiff is proceeding

in forma pauperis, a court is mandated to dismiss a complaint which fails to state a claim upon

which relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii); see also Baker v. Director, U.S.

Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990) (per curiam) (holding that a sua sponte

dismissal is appropriate for failure to state a claim pursuant to Fed. R Civ. P. 12(b)(6)).

In ruling upon a motion to dismiss for failure to state a claim, a court is limited to

considering the facts alleged in the complaint, any documents attached to or incorporated in the

complaint, matters of which a court may take judicial notice, and matters of public record. See

EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); see also Vanover

v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff'd, 38 Fed. Appx. 4 (D.C. Cir. 2002)

(“[W]here a document is referred to in the complaint and is central to plaintiff's claim, such a

document attached to the motion papers may be considered without converting the motion to one

for summary judgment.”) (citing Greenberg v. The Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.

1999)).

III. DISCUSSION

A. Federal Tort Claims Act (“FTCA”) Claims

Plaintiff has failed to establish subject matter jurisdiction over his FTCA claims. Under

the FTCA, a claimant may sue the federal government for “personal injury . . . caused by the

negligent or wrongful act or omission of any employee of the Government.” 28 U.S.C. §

1346(b)(1). To bring suit under the FTCA, a claimant must first satisfy the FTCA’s exhaustion

requirements under 28 U.S.C. § 2675, which provides that

[a]n action shall not be instituted upon a claim against the United States
for money damages for . . . personal injury . . . caused by the negligent or
wrongful act or omission of any employee of the Government . . . unless

5
 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. The failure of an agency
to make final disposition of a claim within six months after it is filed shall,
at the option of the claimant any time thereafter, be deemed a final denial
of the claim for the purposes of this section.

28 U.S.C. § 2675(a) (emphasis added). Moreover, an administrative tort claim shall be presented

to the agency within two years of accrual, see id. § 2401(b), and it must comply with specific

formal requirements, consisting of, inter alia, (1) a written statement sufficiently describing the

injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim.

See id. §§ 2675(a)–(b); GAF Corp. v. United States, 818 F.2d 901, 905 (D.C. Cir. 1987).

“The Supreme Court has interpreted [§ 2675] to mean that ‘[t]he FTCA bars claimants

from bringing suit in federal court until they have exhausted their administrative remedies[,]’”

Norton v. United States, 530 F. Supp. 3d 1, 5 (D.D.C. 2021) (quoting McNeil v. United States, 508

U.S. 106, 113 (1993)), and has further instructed that a claimant’s failure to “heed [the FTCA's]

clear statutory [exhaustion] command” warrants dismissal of their FTCA claim. See id. (quoting

McNeil, 508 U.S. at 113; citing Henderson v. Ratner, No. 10-5035, 2010 WL 2574175, at *1 (D.C.

Cir. June 7, 2010) (per curiam)). Likewise, D.C. Circuit precedent holds that the “FTCA's

requirement of filing an administrative complaint with the appropriate agency prior to instituting

an action [is] jurisdictional.” Simpkins v. Dist. of Columbia, 108 F.3d 366, 371 (D.C. Cir. 1997);

see Odin v. United States, 656 F.2d 798, 802 (D.C. Cir. 1981) (holding that exhaustion under the

FTCA is a “‘jurisdictional prerequisite[ ]’ to suit”); GAF Corp., 818 F.2d at 904–05 (holding that

§ 2675 imposes a “jurisdictional prerequisite to the maintenance of a tort suit against the United

States”).

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 Defendant has submitted a Declaration, authored by Jennifer Bryan, Senior Associate

General Counsel for USMS, who bears responsibility for overseeing administrative tort claims

received by the agency. See Declaration of Jennifer Bryan, ECF No. 9-1, ¶ 2. Bryan attests, within

her professional dominion and with personal knowledge, that she thoroughly searched for any

administrative tort claim submitted by Plaintiff, but none was found. See id. ¶¶ 1–8.

In response, Plaintiff admits that he failed to administratively exhaust his tort claim prior

to filing suit. See Opp’n at 2–4. He argues instead that his administrative exhaustion requirement

should be waived due to hardships that prevented him from filing an administrative claim. See id.;

Surreply at 2–3. More specifically, he asserts that he was intermittently “locked-up,” during the

exhaustion period, and that he was sometimes sequestered in solitary confinement. See Opp’n at

2–4; Surreply at 2–3. He states that he was released from custody in July 2017, but was then

returned to jail in February 2018, was not released again until sometime in 2020, and then was

once again returned to custody about two months later. See id.; Am. Compl. ¶ 12.

However, because the FTCA’s exhaustion requirement itself is jurisdictional, it cannot be

waived. See Corsi v. Mueller, 422 F. Supp. 3d 51, 73 (D.D.C. 2019) (citing Hohri v. United States,

782 F.2d 227, 245–46 (D.C. Cir. 1986), rev'd on other grounds, 482 U.S. 64, 107 (1987)), aff’d,

819 Fed. Appx. 6, (D.C. Cir. 2020) (per curiam); Smith v. Clinton, 253 F. Supp. 3d 222, 238

(D.D.C. 2017) (holding that “the FTCA's exhaustion requirement is jurisdictional and cannot be

excused”), aff'd, 886 F.3d 122 (D.C. Cir. 2018) (per curiam), cert. denied, 139 S. Ct. 459 (2018);

Norton, 530 F. Supp. 3d at 7 (same); Chien v. United States, No. 17-2334, 2019 WL 4602119, at

*8 (D.D.C. Sept. 23, 2019) (“[A] court may not waive the FTCA's exhaustion requirement on

equitable grounds.”)).

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 While the deadlines attributable to FTCA exhaustion can be subject to equitable tolling,

see United States v. Kwai Fun Wong, 575 U.S. 402, 412 (2015), Plaintiff has failed to show

“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way[,]” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). His argument that he was in

and out of jail is unpersuasive. Plaintiff’s deadline to file an administrative claim fell on January

5, 2018. See 28 U.S.C. § 2401(b). Per Plaintiff’s own admission, he was released from jail in July

2017, and he was not returned to custody until February 2018. See Opp’n at 2–4; Surreply at 2–3;

Am. Compl. ¶ 12. Hypothetically, even if Plaintiff could not file an administrative claim while

incarcerated, which the Court does not concede, he was out of custody for about six months during

which he could have filed a timely administrative claim without any of the burdens of

incarceration. See id. Moreover, Plaintiff fails entirely to explain his inability to file an

administrative claim, albeit late, at any point in time, between his subsequent release date in 2020,

and July 2022, when he ultimately determined to file this lawsuit.

Notably, during the same time period in which Plaintiff could have filed a timely

administrative claim, he was able to file numerous civil cases 3 without issue. See, e.g., Wilson v.

Doe, No. 2017-CA-006506-B (D.C. Super. Ct. filed Sept. 26, 2017); Wilson v. Top Dollar Pawn

& Jewelry, No. 2017-CA-006580-B (D.C. Super Ct. filed Sept. 28, 2017); Wilson v. Doe, No.

2017-CA-006576-B (D.C. Super. Ct. filed Sept. 28, 2017); Wilson v. Dep’t of Youth Rehab Srvs.,

No. 2017-CA-007058-B (D.C. Super. Ct. filed Oct. 20, 2017); Wilson v. United States, 2017-CA-

3
A court may take judicial notice of the docket, proceedings, and facts on the public record, relating to other cases.
See Donelson v. Bureau of Prisons, 82 F. Supp. 3d 367, 371 (D.D.C. 2015) (citations omitted), aff'd, No. 15-5136,
2015 WL 9309944 (D.C. Cir. Dec. 7, 2015) (per curiam); Covad Commc'ns Co. v. Bell Atl. Corp., 407 F.3d 1220,
1222 (D.C. Cir. 2005).

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007245-B (D.C. Super. Ct. filed Oct. 27, 2017); Wilson v. Northern Neck Regional Jail, No. 2017-

CA-007314-B (D.C. Super. Ct. filed Oct. 31, 2017); Wilson v. USMS, No. 2017-CA-007305-B

(D.C. Super. Ct. filed Oct. 31, 2017); Wilson v. Metro Police Dep’t, No. 2017-CA-007304-B (D.C.

Super. Ct. filed Oct. 31, 2017); Wilson v. Econ. Sec. Admin., No. 2017-CA-007379-B (D.C. Super.

Ct. filed Nov. 1, 2017); Wilson v. SSA, No. 2017-CA-007425-B (D.C. Super. Ct. Nov. 2, 2017),

removed to this District, No. 17-cv-02799 (TJK) (D.D.C. removed Dec. 27, 2017); Wilson v.

Citibank, No. 2017-CA-007424-B (D.C. Super. Ct. filed Nov. 2, 2017), removed to this District,

No. 17-cv-02581 (TSC) (D.D.C. removed Dec. 4, 2017); Wilson v. United Medical Center, No.

2017-CA-007822-M (D.C. Super. Ct. filed Nov. 22, 2017); Wilson v. GW Hosp., No. 2017-CA-

007821-B (D.C. Super. Ct. filed Nov. 22, 2017). For all of these reasons, the Court finds no merit

in Plaintiff’s argument that his periodic incarceration prohibited him from filing an administrative

tort claim.

Next, Plaintiff insinuates that the substitution of the United States under the Westfall Act

somehow forgives his failure to exhaust administrative remedies. See Opp’n at 3. Although there

is a potential avenue of “relief for plaintiffs where the United States is unexpectedly substituted as

a party defendant and the case is dismissed for failure to exhaust administrative remedies[,]” it is

inapplicable to Plaintiff’s circumstances. See Norman v. United States, 377 F. Supp. 2d 96, 99

(D.D.C. 2005), aff’d, 467 F.3d 773 (D.C. Cir. 2006).

First, the relevant statutory provision “provide[s] . . . an additional sixty days to file an

administrative claim with the appropriate agency [after dismissal] as long as the original lawsuit

was commenced within the two year time period allowed for filing a claim.” Id. (citing 28 U.S.C.

§ 2679(d)(5) (footnote omitted). Here, Plaintiff filed suit in D.C. Superior Court more than four

9
and a half years after his administrative deadline elapsed; therefore, he fundamentally fails to

qualify for this exception. See id.

Second, even if this avenue were available to Plaintiff, he cannot, in good faith, argue that

he was unaware that Conklin and Matthews were affiliated with the federal government, nor does

he specifically advance such an argument. Federal agents are “plentiful” “in Washington, D.C.

and its metropolitan area, see id. at 101, particularly officials who are employed in law enforcement

within the region’s justice system, with which Plaintiff bears familiarity. “Because reasonable

diligence would likely have revealed [Conklin’s and Matthews’] status[es] as a federal

employee[s] within two years[,]” equitable tolling is inappropriate. See id. Indeed, Plaintiff’s

original Complaint openly acknowledges that Conklin, and perhaps Matthews, are federal agents.

See Compl. at 1. Consequently, and for all of these reasons, the Court does not find that the

Westfall Act was stood in the way of Plaintiff’s exhaustion.

While far from clear, it appears that Plaintiff also seeks equitable tolling based on his

contention that he was evaluated, sometime in 2016, as to his competency to stand trial, which he

insinuates was due to an unspecified mental illness. See Opp’n at 4–5; Surreply at 4–5. But these

“broad and conclusory statement[s]” are fundamentally insufficient to establish that Plaintiff is

somehow entitled to equitable tolling. See Richardson v. Sauls, 319 F. Supp. 3d 52, 68 (D.D.C.

2018). Moreover, after said evaluation, Plaintiff was ultimately found competent to stand trial in

the proceedings that he references. See United States v. Wilson, No. 2016 CMD 000200 (D.C.

Super. Ct. filed Jan. 5, 2016), at Dkt. Entry dated Feb. 23, 2016 (noting that Wilson will be

evaluated for competency); id. at Dkt. Entry dated Oct. 19, 2017 (finding that Wilson was “not

eligible for mental health court.”); id. at Dkt. Entry dated June 20, 2018 (“The Court having

received a report of the full screening examination of the defendant finds that that the defendant is

10
competent to proceed in this matter” and releasing him on his own recognizance). And, generally,

incompetency cannot serve as a basis for equitable tolling of an FTCA claim. See Gable v. United

States, 12-cv-01634, 2017 WL 11592046, at *9 (D.D.C. Dec. 29, 2017) (collecting cases), report

and recommendation adopted, 319 F. Supp. 3d 37 (D.D.C. June 20, 2018); Velasco v. United

States, 585 F. Supp. 2d 1, 5 (D.D.C. 2008) (finding that the plaintiff’s FTCA claim was not subject

to equitable tolling despite his ongoing post-traumatic stress disorder).

Finally, Plaintiff asserts that, on June 11, 2023, he submitted a “Standard Form 95” to the

federal government, memorializing his administrative claim, nearly a year after he filed this

lawsuit. See Surreply at 3. But, under the FTCA, the appropriate analysis is whether the Plaintiff

exhausted his administrative remedies at the time he filed the lawsuit, not whether the exhaustion

requirement was eventually satisfied at a later date. See Hurt v. Lappin, 729 F. Supp. 2d 186, 190

(D.D.C. 2010) (“Even though the six-month period has now expired, the relevant analysis is

whether [plaintiff] had exhausted his administrative remedy at the time he filed his complaint.”);

McNeil, 508 U.S. at 111 (rejecting plaintiff's argument that subsequent receipt of formal denial

from an agency is sufficient to satisfy the exhaustion remedies); see also Harrod v. U.S. Parole

Comm’n, No. 13-774, 2014 WL 606196, at *1 (D.D.C. Feb. 18, 2014) (holding that “a premature

‘complaint cannot be cured through amendment[.]”) (quoting Duplan v. Harper, 188 F.3d 1195,

1199 (10th Cir. 1999); citing Edwards v. Dist. 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”) (other

citation omitted)). This requirement “enables the agency to investigate and ascertain the strength

of a claim . . . [and] determine whether settlement or negotiations to that end are desirable.” GAF

11
Corp., 818 F.2d at 920; see also Wilbur v. C.I.A., 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam)

(citation omitted) (“Exhaustion of administrative remedies is generally required before seeking

judicial review ‘so that the agency has an opportunity to exercise its discretion and expertise on

the matter and to make a factual record to support its decision.’”).

Simply put, because Plaintiff failed to exhaust his FTCA claim before filing this lawsuit,

the Court is deprived of subject matter jurisdiction, and it is thus obligated to dismiss this matter.

See McNeil, 508 U.S. at 113; see also Norman, 377 F. Supp. 2d at 101 (finding that the plaintiff

was not entitled to relief under 28 U.S.C. § 2679(d)(5), nor otherwise entitled to equitable tolling,

and finding that “plaintiff’s failure to exhaust his administrative remedies pursuant to section

2675(a) deprive[d] th[e] Court of jurisdiction”).

B. Constitutional Claims

Plaintiff initiated this matter, and has largely portrayed this matter, as one seeking relief

arising from personal injury predicated on tort claims, see Compl. at 1, 6; Am. Compl. at 1, 3–5;

Opp’n at 3–5; Surreply at 1–4, but over the course of its pendency, he has gradually sprinkled in

some discussion of his Eighth and Fourteenth Amendment rights, perhaps in an attempt to raise

additional claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388, (1971). See, e.g., Am. Compl. at 1–5; Opp’n at 2; Surreply at 4; Affidavit, ECF No.

16. It is unclear, however, if Plaintiff actually seeks to bring a claim under Bivens in this matter;

instead, he seems to insinuate that he may do so in the future. See, e.g., Opp’n at 5 (asserting that

a Bivens claim “will be” the correct cause of action, but that “the personal injury tort shall stand”

under the FTCA); Surreply at 3–4 (noting that he “joined” “more torts” in his Amended Complaint,

and asserting that under the FTCA, his “tort claims shall stand on [their] own accord[,]” but stating

that “if a Bivens action is pursued, then the individuals have to held liable.”). Relevant here, a

12
“plaintiff cannot amend his complaint de facto to survive a motion to dismiss by asserting new

claims for relief in [his] responsive pleadings.” Coll. Sports Council v. Gov't Accountability Office,

421 F. Supp. 2d 59, 71 n.16 (D.D.C. 2006); Arbitraje Casa de Cambio, S.A. de C.V. v. United

States Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (“It is axiomatic that a complaint may

not be amended by the briefs in opposition to a motion to dismiss.”) (citation omitted).

To the extent that Plaintiff attempts to bring constitutional tort claims by and through the

FTCA, he cannot do so. “Although the FTCA generally waives the government’s sovereign

immunity, there are several exceptions.” Williams v. Wilkie, 320 F. Supp. 3d 191, 198 (D.D.C.

2018), appeal dismissed, No. 18-5272, 2019 WL 1150043 (D.C. Cir. Jan. 9, 2019). Applicable

here, the FTCA does not waive the sovereign immunity of United States for constitutional claims.

See FDIC v. Meyer, 510 U.S. 471, 477–78 (1994); Clark v. Lib. Of Congress, 750 F.2d 89, 102–

04 (D.C. Cir. 1984); see also 28 U.S.C. §§ 1346(b)(1), 2679(b).

Assuming arguendo that Plaintiff has raised Bivens claims in this matter, they still cannot

survive dismissal. First, Plaintiff cites to the Fourteenth Amendment, see Am. Compl. at 1; Opp’n

at 2, but the Fourteenth Amendment does not apply to federal government, its agencies, or its

officials. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

Second, “[a]bsent a waiver, sovereign immunity shields the Federal Government and its

agencies from suit[,]” Meyer, 510 U.S. at 475, and without any such waiver, a claim against the

government is jurisdictionally defective, see id. at 475 (holding that federal sovereign immunity is

jurisdictional and that the United States “has not rendered itself liable under [the Federal Tort

Claims Act] for constitutional tort claims”). This sovereign immunity applies to the United States,

its agencies, components, and employees. See United States v. Mitchell, 463 U.S. 206, 212 (1983)

(“It is axiomatic that the United States may not be sued without its consent and that the existence

13
of consent is a prerequisite for jurisdiction.”); Kim v. United States, 632 F.3d 713, 715 (D.C. Cir.

2011) (holding that “no Bivens claim is available against [federal officers] in their official

capacities.”).

In his Amended Complaint, Plaintiff states, broadly and in passing, that “Defendant United

States of America had several Marshals assisting it [in] transporting detainees back and forth to

court. They are sued in their individual and official capacities.” Am. Compl. ¶ 4. While the Court

is certainly aware of the existence of Conklin and Matthews, based on their inclusion as defendants

in the original Complaint, see Compl. at 1, Plaintiff has not ever formally named them in their

individual capacities, see generally Compl. Indeed, Plaintiff declined to name them as defendants

at all in his Amended Complaint, see Am. Compl. at 1–2; see also Surreply at 1, which superseded

and replaced his original complaint, see Simms v. Dist. of Columbia Gov’t, 646 F. Supp. 2d 36,

37–38 (D.D.C. 2009). Because Plaintiff never named Conklin or Matthews as defendants in their

individual capacities in this matter, and because he declined entirely to name them in his now-

operative Amended Complaint, the Court is simply not in a position to construe any Bivens claims

against them. See Valdes v. Gordon, 949 F. Supp. 21, 23–24 (D.D.C. 1996), aff’d sub. nom. Valdes

v. U.S. Customs Service, Nos. 97-5013, 96-01368, 1997 WL 404719 (D.C. Cir. June 5, 1997) (per

curiam); see also Atchinson v. Dist. of Columbia, 73 F.3d 418, 425 (D.C. Cir. 1996) (affirming the

trial court’s determination that the plaintiff failed to plead any individual capacity claims, in light

of the course of the proceedings and the operative complaint’s silence as to any such claims)

(quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); Brandon v. Holt, 469 U.S. 464, 469

(1985)); Fox v. Dist. of Columbia, 990 F. Supp. 13, 21–22 (D.D.C. 1997) (finding that, where

plaintiff’s course of proceedings were “ill-defined,” and despite having “theoretically” hinted at

an individual capacity claim, the plaintiff’s failure to formally name the defendant in her individual

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capacity was ultimately fatal to any individual capacity claim). Nor does Plaintiff provide any

information regarding any of the “several” unnamed Marshals referenced in the Amended

Complaint, see Am. Compl. ¶ 4, which contravenes Federal Rule 10(a) and Local Civil Rule 5.1(c),

(g).

Finally, and in any event, any Bivens claims are time-barred. To bring a Bivens claim, a

court looks to local law, and here, “a three-year limitations period applies[,]” Berman v. Crook,

293 F. Supp. 3d 48, 56 (D.D.C. 2018) (citing Banks v. Chesapeake and Potomac Telephone Co.,

802 F.2d 1416, 1429 (D.C. Cir. 1986) (three-year limitations period in D.C. Code § 12–301(8)

applies to most Bivens actions)); Doe v. U.S. Dep’t of Justice, 753 F.2d 1092, 1114 (D.C. Cir.

1985) (same), “and the claim accrues at the time a plaintiff learns of the conduct,” Berman, 293

F. Supp. 3d at 56 (citation omitted). Plaintiff filed this lawsuit over three and a half years beyond

his deadline to file a Bivens claim against any defendant.

Furthermore, District of Columbia law, applicable here, see Loumiet v. United States, 968

F. Supp. 2d 142, 152 (D.D.C. 2013), generally “does not recognize an equitable tolling exception

to the statute of limitations[,]” Bundy v. Sessions, 387 F. Supp. 3d 121, 125 (D.D.C. 2019) (quoting

Johnson v. Marcheta Inv'rs Ltd. P'ship, 711 A.2d 109, 112 (D.C. 1998)), aff’d, 812 Fed. Appx. 1

(D.C. Cir. July 2, 2020) (per curiam); Sayyad v. Fawzi, 674 A.2d 905, 906 (D.C. 1996) (per curiam)

(rejecting equitable tolling of D.C. Code § 12–301(8) under principle of “strict adherence to

statutes of limitations.”); see also Melara v. China North Industries, Corp., 658 F. Supp. 2d 178,

181 (D.D.C. 2009) (noting resistance to application of equitable tolling under District of Columbia

law), appeal dismissed, No. 09–71469, 2011 WL 1769716 (D.C. Cir., Apr. 4, 2011). Although

under D.C. Code § 12-302(a)(3), a statute of limitations may be tolled if the incident giving rise to

the action occurs while the plaintiff is incarcerated, notably, that tolling ceases upon the plaintiff’s

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