Hazel v. United States ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BOBBY E. HAZEL, )
)
Plaintiff, )
)
v. ) Civil Action No. 23-01272 (UNA)
)
UNITED STATES OF AMERICA, )
)
)
Defendant. )
MEMORANDUM OPINION
Plaintiff, appearing pro se, has filed a Civil Complaint, ECF No. 1, and an application to
proceed in forma pauperis, ECF No. 2. The Court will grant the application and dismiss the
complaint for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring the court
to dismiss an action “at any time” it determines that subject-matter jurisdiction is wanting).
In 1993, a jury in the U.S. District Court for the Eastern District of Virginia convicted
Plaintiff of first-degree murder while armed, among other offenses, and he was sentenced to a term
of life imprisonment without parole. See United States v. Hazel, 33 F.3d 53 (4th Cir. 1994) (per
curiam) (affirming convictions). In May 2022, Plaintiff was granted compassionate release.
Compl., ECF No. 1 at 4. Now living in the District of Columbia, Plaintiff has sued the United
States under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents of
the Federal Bureau of Investigation, 403 U.S. 388 (1971), for its failure to disclose a videotape
that allegedly was “concealed” because it contains “exculpatory evidence, in violation of the Brady
Rule.” Compl. ¶ 7. In 2011, Plaintiff “filed a motion to the court to compel the [videotape’s]
release,” which was denied. Id. ¶ 4. In addition, he sought the videotape in a Freedom of
Information Act (FOIA) request to the FBI, which allegedly “refuse[d] to follow the United States
Attorney’s Office to release the videotape.” Id. ¶ 6.
In three separate counts of the complaint, Plaintiff asserts the following. In “Claim One,”
Plaintiff states that the United States “intentionally filed a false document alleging [ ] the video
tape would be released,” which “caused” him “to suffer mental distress as well as emotional
distress.” Id. ¶ 12. In “Claim Two,” Plaintiff states that the United States “intentionally and
knowingly” concealed “the videotape,” which “caused” him “to suffer a deprivation of his
constitutional rights under the First and Fifth Amendment to obtain exculpatory evidence during
the course of [his] incarceration,” as well as “mental [and] emotional distress.” Id. ¶ 13. In “Claim
Three,” Plaintiff states that United States “employees . . . conspired to deprive” him of “the
exculpatory evidence knowingly [sic] would exonerate [him] of murder,” thereby depriving him
of his rights under the First and Fifth Amendments and causing him “to suffer mental [and]
emotional distress.” Id. ¶ 14. Plaintiff seeks “compensatory damage[s] in the amount of “One
Hundred Million Dollars” and “punitive damages . . . of Two Hundred Dollars for the evils [sic]
acts of the defendant.” Id. at 6.
The United States may be sued only upon consent, United States v. Mitchell, 445 U.S. 535,
538 (1980) (citation omitted), and “the terms of its consent to be sued in any court define that
court’s jurisdiction to entertain the suit,” United States v. Sherwood, 312 U.S. 584, 586 (1941). A
waiver of the United States’ immunity “must be unequivocally expressed in statutory text, and [it
cannot] be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted). The United
States has not consented to suit “for constitutional tort claims.” FDIC v. Meyer, 510 U.S. 471, 478
(1994); see Benoit v. U.S. Dep't of Agric., 608 F.3d 17, 20 (D.C. Cir. 2010) (“[S]uits for damages
against the United States under the Civil Rights Act . . . and the Constitution are barred by
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sovereign immunity”). Nor is the United States a proper Bivens defendant. See Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 66 (2001) (Bivens “recognized for the first time an implied private action
for damages against federal officers alleged to have violated a citizen’s constitutional rights.”); see
also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (In a Bivens suit “a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.”). Therefore, sovereign immunity clearly applies to counts one and two of the
complaint asserting constitutional violations.
The FTCA waives the United States’ immunity with respect to certain claims for money
damages “under circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.
1346(b)(1). “If the federal law at issue does not embody duties recognized under District of
Columbia tort law, a plaintiff will be unable to maintain an FTCA action.” Hornbeck Offshore
Transp., LLC v. United States, 563 F. Supp. 2d 205, 210 (D.D.C. 2008), aff'd, 569 F.3d 506 (D.C.
Cir. 2009). Because a private individual has no legal obligation to release records under the FOIA,
see 5 U.S.C. § 552(a) (requiring “each agency” to disclose information), or to provide exculpatory
evidence during a criminal prosecution, see Brady v. Maryland, 373 U.S. 83, 87 (1963)
(proscribing “suppression by the prosecution of evidence favorable to an accused”), the United
States is immunized from count one of the complaint as well.
For the foregoing reasons, and because no “allegation of other facts” could plausibly
overcome sovereign immunity, Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (per
curiam), the complaint is dismissed with prejudice. Cf. Simon v. Republic of Hungary, 579 F.
Supp. 3d 91, 97 (D.D.C. 2021) (dismissing with prejudice case of certain plaintiffs “for uncurable
lack of subject matter jurisdiction due to sovereign immunity”); Menifee v. U.S. Dep't of the
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Interior, 931 F. Supp. 2d 149, 153 (D.D.C. 2013) (“Because sovereign immunity bars some of Ms.
Menifee’s tort claims, the dismissal of those claims will be with prejudice[.]”). A separate order
accompanies this Memorandum Opinion.
_________/s/_____________
CHRISTOPHER R. COOPER
Date: May 18, 2023 United States District Judge
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