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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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Civil Action No. 21-cv-390 (TSC) 

JIEMIN BAI

Plaintiff,

v.

MATTHEW M. GRAVES, United States 

Attorney of the District of Columbia, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Jiemin Bai filed this civil action, pro se, alleging tort injuries pursuant to the 

Federal Tort Claims Act (“FTCA”), Administrative Procedure Act (“APA”) violations, and civil 

rights violations under 42 U.S.C. §§ 1981 and 1983 against the U.S. Attorney for the District of 

Columbia in his official capacity, and former U.S. Attorney Jessie Liu in her official and 

individual capacities. Several months later, Ning Ye appeared as counsel on Plaintiff’s behalf. 

Notice of Appearance, ECF No. 10. Shortly thereafter, Defendants filed a motion to dismiss 

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the court dismissed the 

case without prejudice. See Order Granting Mot. to Dismiss, ECF No. 17. Plaintiff now seeks 

leave to file a First Amended Complaint (“FAC”), Corrected Mot. for Leave to File First Am. 

Compl., ECF No. 25. Plaintiff claims that if granted leave, he intends to add as a defendant D.C. 

Department of Corrections director Thomas N. Faust in his official capacity, and to bring 

additional claims against Defendants under the Bivens doctrine and the Torture Victim Protection 

Act (“TVPA”). See FAC ¶¶ 47–52, ECF No. 25-3. For the reasons set forth below, the court will 

DENY Plaintiff’s Motion.
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I. LEGAL STANDARD

Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint “shall be 

freely given when justice so requires.” See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 

1996). However, courts must consider “undue delay, bad faith or dilatory motive on the part of 

the movant, repeated failure to cure deficiencies by amendments previously allowed, undue 

prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, 

etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment would be futile and should be 

denied if it merely restates the same facts as the original complaint in different terms, reasserts a 

claim on which the court previously ruled, fails to state a legal theory, or could not withstand a 

motion to dismiss. See Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002); 

see also Aguiar v. Drug Enf’t Admin., 992 F.3d 1108, 1113–14 (D.C. Cir. 2021) (“The district 

court properly denies a motion to amend a complaint as futile if the proposed claim would not 

survive a motion to dismiss.”).

II. ANALYSIS

Plaintiff’s FAC asserts seven claims against three government official defendants, none 

of which can succeed. Plaintiff’s third, fourth, fifth, and sixth claims under the FTCA again fail 

to plead administrative exhaustion. See Am. Mem. Op. at 2, ECF No. 16. Plaintiff’s seventh 

claim, brought under the APA, likewise does not cure the Complaint’s deficiencies. Id. at 3. 

The second claim, asserting civil and constitutional right violations under Sections 1981, 1983, 

and Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), does 

not adequately plead any of those causes of action. FAC ¶¶ 73–77. Lastly, Plaintiff’s first claim

alleges injuries under the TVPA but does not allege that Defendants acted under color of foreign 

law, as the statute requires.
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A. Federal Tort Claims Act Claims

The FAC’s FTCA claims are futile for reasons the court has already explained. Under 

the FTCA, a federal court only acquires jurisdiction over a tort action against a federal agency

and its officers after the plaintiff has exhausted the available administrative remedies by 

submitting his tort claim to the agency, which must provide a final written denial of the claim. 

28 U.S.C. § 2675(a). Informal complaints do not suffice. Davis v. United States, 944 F. Supp. 

2d 36, 39 (D.D.C. 2013). Further, because the FTCA’s exhaustion requirement is a jurisdictional 

prerequisite, the plaintiff bears the burden of pleading exhaustion of administrative remedies to 

establish the court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Failure to do so requires dismissal 

of the corresponding claims. See McNeil v. United States, 508 U.S. 106, 113 (1993); see also 

Smith v. Clinton, 886 F.3d 122, 127 (D.C. Cir. 2018).

As in the original Complaint, the FAC asserts several tort claims against federal officers. 

FAC ¶¶ 79–89. Again, however, the FAC alleges no facts showing that Plaintiff exhausted his 

administrative remedies. Indeed, Plaintiff acknowledges—despite the fact that he is now 

represented by counsel—that he is “uninformed” about available administrative remedies, FAC 

at 15, and has only attempted to seek administrative relief by informally sending “express mail”

to the U.S. Department of Justice, FAC ¶ 56. That does not fulfill Plaintiff’s obligation to plead 

administrative exhaustion. Nonetheless, he argues that his actions were sufficient given his pro 

se status at the time he sent the mail. Id. But the FTCA does not make any exception for pro se 

litigants. And the Supreme Court has specifically held that a litigant’s pro se status does not 

excuse his failure to timely file an administrative claim before bringing an FTCA action in 

federal court. See McNeil, 508 U.S. at 113. Accordingly, Plaintiff’s tort claims could not 

withstand a motion to dismiss for lack of jurisdiction and an amendment would be futile.
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B. Administrative Procedure Act Claims 

Plaintiff’s revised APA claim fares no better. The court previously dismissed it because 

the Complaint failed to proffer specific allegations demonstrating that Defendants’ prosecution 

of him was illegal, irregular, or violated the Constitution. See Am. Mem. Op. at 3. The 

proposed FAC merely restates the same conclusory assertions as the original Complaint in 

different terms. See FAC ¶¶ 78, 91. Moreover, an APA claim “must challenge a final action of 

an agency.” Indep. Petroleum Ass’n of America v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 2001). 

Plaintiff’s amended claim does not. Because it would not survive a motion to dismiss, the court 

will deny leave to amend it.

C. Civil and Constitutional Rights Claims 

The court dismissed Plaintiff’s Section 1981 and 1983 claims because the Complaint 

failed to show that Defendants Graves and Liu—federal actors—acted under color of state law, 

as those statutes require. See Am. Mem. Op. at 3 (citing 42 U.S.C. §§ 1981, 1983); see, e.g., 

Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005). The proposed FAC is 

similarly deficient, rendering any other amendments on those claims futile. See FAC ¶¶ 39, 45, 

63, 76. Plaintiff does seek to add Faust—a D.C. official—as a defendant to these claims, but 

they would not withstand a motion to dismiss either. A Section 1981 claim requires

discrimination in the making and enforcing of contracts, and Plaintiff has not alleged the 

existence of a contract. See U.S.C. 42 § 1981. And the Section 1983 claim will necessarily fail

because the FAC does not allege that Faust’s “own individual actions[] violated the 

Constitution.” See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Rather, Plaintiff seeks to hold 

Faust liable for the constitutional violations committed “by and through [Faust’s] inferior wards 

of the D.C. Detention Facilities where Plaintiff was wrongfully jailed.” FAC ¶ 51; see also id.
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¶ 48 (“Defendant Faust had inescapable accountability and liability” because he “exercised 

oversight and supervision of all Detention facilities” where Plaintiff’s claims arose). Because 

“vicarious liability is inapplicable to . . . § 1983 suits,” Iqbal, 556 U.S. at 676, the FAC’s 

allegations do not support a § 1983 claim against Faust.

In addition, Plaintiff’s FAC asserts a Bivens claim against former U.S. Attorney Liu. 

FAC ¶¶ 74–77; see Bivens, 403 U.S. 388. It alleges that Liu violated Plaintiff’s First 

Amendment rights during his criminal prosecution. See U.S. v. Bai, Case No. 19-cr-34-RCL, 

ECF No. 66 at 1 (D.D.C. Dec. 13, 2019). However, this claim cannot succeed because 

government prosecutors enjoy absolute immunity for actions taken in their advocatory capacity. 

See Imbler v. Pachtman, 424 U.S. 409, 430 (1976). That immunity extends to activities 

“intimately associated with the judicial phase of the criminal process.” Id. at 430–431; see also

Buckley v. Fitzsimmons, 509 U.S. 259, 270–71 (1993) (discussing the line that divides the 

advocatory activities of a prosecutor that are entitled to absolute immunity from the investigatory 

and administrative functions that are entitled to qualified immunity); Bundy v. Sessions, 387 F. 

Supp. 3d 121, 128 (D.D.C. 2019) (absolute prosecutorial immunity barred plaintiff’s claims of 

retaliatory prosecution for his exercise of First Amendment rights).

Liu was a prosecutor at the time of Plaintiff’s arrest and detention. FAC ¶ 35. Plaintiff 

alleges that she violated his First Amendment rights through retaliatory prosecution, “knowing 

Plaintiff was exercising his Constitutional Rights to protest.” Id. ¶ 74. He seeks damages for 

what he views as a “ruthless prosecution.” Id. ¶ 76. Specifically, he alleges that Liu selectively 

prosecuted him and other Chinese protestors to please “patrons” within the Chinese Communist 

Party. See id. ¶¶ 25, 28. These alleged actions were performed in Liu’s capacity as a prosecutor. 

See Buckley, 509 U.S. at 270. As a result, prosecutorial immunity insulates her from liability for 
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her “unquestionably advocatory decision” to prosecute Plaintiff, Moore v. Valder, 65 F.3d 189, 

194 (D.C. Cir. 1995), and the proposed amendment raising a Bivens claim against Liu would be 

futile.

D. Torture Victim Protection Act Claim

Lastly, Plaintiff requests leave to sue under the TVPA, alleging that Defendants Liu and 

Faust subjected him to various acts of “soft-forms of tortures,” including sleep deprivation, 

exposure to cold temperatures, denial of Halal food despite Plaintiff’s religious beliefs as a

Muslim, and other forms of inhumane treatment. FAC ¶ 64. But Plaintiff cannot bring claims

under the TVPA because the Act provides a cause of action only against foreign, not U.S.,

officials.

The TVPA authorizes victims of torture and extrajudicial killings in violation of 

international law to sue certain individuals acting “under actual or apparent authority, or color of 

law, of any foreign nation.” 28 U.S.C. § 1350, note § 2(a); see also Nestle USA, Inc. v. Doe, 141 

S. Ct. 1931, 1937 (2021). In Doe v. Rumsfeld, this Circuit reaffirmed that the TVPA does “not 

include as possible defendants either American government officers or private U.S. persons.” 

683 F.3d 390, 396 (D.C. Cir. 2012) (quoting Saleh v. Titan Corp., 580 F.3d 1, 16 (D.C. Cir. 

2009)). Here, Defendants are U.S. rather than foreign officials. FAC ¶¶ 33, 35, 52. Plaintiff’s 

proposed FAC fails to allege that Defendants acted under color of foreign law and therefore 

could not withstand a motion to dismiss. Consequently, this amendment would be futile and the 

court will deny leave to file it. 
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III. CONCLUSION

For these reasons, the court concludes that granting leave to amend would be futile, as 

none of the claims in the FAC could succeed. The court will therefore DENY Plaintiff’s Motion 

for Leave to File First Amended Complaint, ECF No. 25. A corresponding Order will 

accompany this Memorandum Opinion. 

Date: July 21, 2023

Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge