Brown v. Gonzalez-Horowitz

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LEWIS ROSS BROWN, )
)
Plaintiff, )
)
v. ) Civil Action No. 23-03494 (UNA)
)
)
BRENDA GONZALEZ-HOROWITZ, )
)
Defendant. )
MEMORANDUM OPINION
Plaintiff, appearing pro se, has filed a Complaint and an application to proceed in forma
pauperis (“IFP”). The IFP application is granted and this case is dismissed for want of 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).
“Federal courts are courts of limited jurisdiction,” possessing “only that power authorized
by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). It is “presumed that a cause lies outside this limited jurisdiction, and the burden
of establishing the contrary rests upon the party asserting jurisdiction.” Id. The party’s failure to
plead facts that bring the suit within the court’s jurisdiction warrants dismissal of the case. Fed.
R. Civ. P. 8(a), 12(h)(3).
Federal district courts, such as this, have jurisdiction to hear a case when a “federal
question” is presented, 28 U.S.C. § 1331, or the parties are of diverse citizenship and the amount
in controversy “exceeds the sum or value of $75,000, exclusive of interest and costs,” id. § 1332(a).
Parties are of diverse citizenship where “plaintiff [is not] a citizen of the same state as any
defendant.” Bush v. Butler, 521 F. Supp. 2d 63, 71 (D.D.C. 2007) (citing Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 373-74 (1978)). It is a “well-established rule” that in order for an
action to proceed in diversity, the citizenship requirement must be “assessed at the time the suit is
filed,” Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991), but an “allegation
of residence alone is insufficient to establish the citizenship” requirement, Novak v. Cap. Mgmt.
& Dev. Corp., 452 F.3d 902, 906 (D.C. Cir. 2006) (internal quotations and citation omitted).
Plaintiff, a resident of Dale City, Virginia, has sued an Assistant U.S. Attorney for the
District of Columbia, alleging that defendant has “repeatedly” harassed him “through emails and
calls so much” that his “blood pressure has sky-rocketed and [his] ulcers are really bothering” him.
Compl. at 4. Plaintiff seeks $250,000 in damages.
Plaintiff provides no other factual basis for a legal claim against defendant but only checks
the “Federal question” box as the basis for jurisdiction. Compl. at 3. The Federal Tort Claims Act
(FTCA) waives the United States’ immunity for certain damages claims involving United States
employees. See 28 U.S.C. §§ 1346(b)(1), 2674, 2679-80. Before filing a lawsuit, an FTCA
claimant must exhaust his administrative remedies by presenting the claim to the appropriate
federal agency and obtaining a final written denial of the claim. 28 U.S.C. § 2675(a). If an agency
fails to render a decision within six months after the claim is submitted, the claimant may proceed
to court “any time thereafter” on what is “deemed” to be “a final denial.” Id. Nothing suggests
that plaintiff pursued, much less exhausted, his administrative remedies under the FTCA, and in
this circuit, the FTCA’s exhaustion requirement is “jurisdictional.” Simpkins v. D.C. Gov’t, 108
F.3d 366, 371 (D.C. Cir. 1997) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)); Norton
v. United States, 530 F. Supp. 3d 1, 6-7 (D.D.C. 2021) (collecting cases). Therefore, this case
must be dismissed.
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A separate order reflecting this determination will be entered contemporaneously.
_________/s/___________
BERYL A. HOWELL
Date: December 28, 2023 United States District Judge
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