Embrey v. United States of America ( 2019 )

FILED
UNITED STATES DISTRICT COURT NOV 20 2019
FOR THE DISTRICT OF COLUMBIA
Clerk, U.S. District and
Bankruptcy Courts
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WILLIAM J.R. EMBREY, )
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Plaintiff, )
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Vv. ) Civil Action No. 19-2535 (UNA)
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UNITED STATES OF AMERICA, et al., )
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Defendants. )
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MEMORANDUM OPINION
This matter is before the court on consideration of the plaintiff's application to proceed in
forma pauperis and his pro se complaint. The plaintiff is a former federal prisoner. Compl.
q9 1,4. He alleges that his mandatory release date was June 24, 2017, id. J{ 1, 10, yet he
remained in custody until November 13, 2018, id. § 13. Counts I and II of the complaint raise,
respectively, false imprisonment and negligence claims under the Federal Tort Claims Act
(“FTCA”), see 28 U.S.C. §§ 1346, 2671-80, for which he demands damages totaling $10
million.! See generally Compl. {§ 15-26. The plaintiff's FTCA claims must be dismissed
because he does not demonstrate that the court has subject matter jurisdiction over them.
! The plaintiff also purports to bring constitutional claims under Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) against federal officials or
employees in their individual capacities. The factual allegations relevant to a Bivens claim are
vague at best, and the plaintiff cannot identify the individuals against whom he raises these
claims. The Court dismisses these claims and defendants without prejudice.
A plaintiff cannot pursue an FTCA claim against the United States unless he first has
presented his claims to the appropriate federal agency and the agency has denied those
claims, See 28 U.S.C. § 2401(b); McNeil v. United States, 508 U.S. 106, 111 (1993). This
exhaustion requirement is jurisdictional, and absent any showing by the plaintiff that he has
exhausted his administrative remedies, the Court lacks jurisdiction. See Abdurrahman v.
Engstrom, 168 F. App’x 445 (D.C. Cir. 2005). Furthermore, while the FTCA is one example of
an express waiver of the federal government’s sovereign immunity, it does not expose the United
States to liability for the commission of all torts, see, e.g., Richards v. United States, 369 U.S. 1,
6 (1962). Because “the United States simply has not rendered itself liable under [the FTCA] for
constitutional tort claims,” FDIC v. Meyer, 510 U.S. 471, 478 (1994), the court lacks subject
matter jurisdiction over any constitutional tort claim the plaintiff brings.
The court will grant the plaintiff's application to proceed in forma pauperis and dismiss
the complaint and this civil action. In addition, the court will deny the plaintiff's motions for
appointment of counsel and for service of process as moot. An Order accompanies this
Memorandum Opinion.
—T ff
/. : go
TANYA S. CHUTKAN
United States District Judge
DATE: November |S , 2019