Applewhite v. District of Columbia District Attorneys Office

FILED
DEC ~ 0 2J09
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District and
Bankruptcy Courts
)
Marc Edwin Applewhite, )
)
Plaintiff, )
)
v. ) Civil Action No. 09 2439
)
District of Columbia District Attorneys )
Office et aI., )
)
Defendants. )
MEMORANDUM OPINION
Before the Court is the plaintiff s pro se complaint and application to proceed in forma
pauperis. The application will be granted and the complaint will be dismissed because it seeks
relief that is not available through a civil action.
Plaintiff was indicted by a federal grand jury and convicted on a guilty plea for armed
bank robbery in the United States District Court for the District of Columbia. CompI. at 3.
Alleging that he should have been charged with no more than attempted armed bank robbery,
plaintiff filed this action seeking $950,000 in damages and immediate release from his sentence
of imprisonment. Id. at 3-4.
A collateral challenge to a conviction and sentence imposed by a federal court must be
brought by motion made under 28 U.S.C. § 2255, lodged with the court that imposed the
judgment and sentence. 28 U.S.C. § 2255(a). The court's docket shows that the plaintiff has
filed such a motion with the sentencing court, which is pending. See Applewhite v. USA., Civil
Action 09-2293 (CKK) (D.D.C.).
1tJ)
A suit for damages against the federal prosecutor's office that secured the indictment by a
grand jury is the equivalent ofa suit against the United States itself. Kentucky v. Graham, 473
U.S. 159, 165-66 (1985). The United States enjoys sovereign immunity from suit and may be
sued only where it has expressly waived its immunity and consented to suit. FDIC v. Meyer, 510
U.S. 471,475 (1994). The complaint does not identify any federal law or common-law duty that
was allegedly breached. In any case, the United States has not consented to suit for alleged
constitutional violations by its officials, id at 486, or to suit under the Federal Tort Claims Act,
28 U.S.C. §§ 2671-2680, if the suit arises from the performance ofa discretionary function, 28
U.S.C. § 2680(a), which includes a prosecutor's decision to seek an indictment and prosecute
charges, Moore v. Valder, 65 F.3d 189, 196-97 (D.C. Cir. 1995). A federal grand jury is not an
entity that may either sue or be sued. In short, the complaint does not identify any defendant as
to which this complaint may be maintained. Therefore, because it seeks damages from
defendants who are immune from suit, the complaint will be dismissed pursuant to 28 U.S.C.
§ 1915A(b)(2).
/'
A separate order accompanies this memor dUJ;nopinion.
Date: 11/J-/ / 07 /
United States District Judge
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