UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

MICHAEL DICKEY, )

)

Plaintiff, )

) Civil Action No.15-0577 

 ) (EGS)

v. )

)

UNITED STATES OF )

AMERICA, ET AL., )

)

Defendants. )

______________________________)

MEMORANDUM OPINION

On July 1, 2013, Plaintiff Michael Dickey (“Mr. Dickey”), 

an employee of the U.S. Department of Transportation (“DOT”),

drove his car into the DOT’s parking garage at 1200 New Jersey 

Ave. SE, Washington, D.C. Compl., Docket No. 1 at ¶ 6. Mr. 

Dickey alleges that a bicyclist was in his blind spot as he 

pulled into his parking spot. Id. at ¶ 7. The cyclist was forced 

to stop abruptly. Id. Mr. Dickey and the cyclist engaged in an 

altercation, causing Defendant Kurt Alexander (“Officer 

Alexander”), a Federal Protective Services officer, and his 

partner, Gary Brzozwald, an inspector, to arrive at the scene. 

Id. at ¶ 8. After interviews with the altercating parties, Mr. 

Dickey was placed under arrest for simple assault. Id. ¶ 9-12. 

During his arrest, Mr. Dickey alleges that Officer Alexander

pushed and pulled him, tearing one of the belt loops on his 

1
pants. Id. ¶ 12. Mr. Dickey further alleges that Officer 

Alexander “used his fingers to manipulate and move Mr. Dickey’s 

genitals and penis . . . .” Id. ¶ 13. Mr. Dickey alleges that 

his genitals and penis were “fondled” six times by Officer 

Alexander during his search of Mr. Dickey incident to arrest, 

three times when Officer Alexander used kevlar gloves, and three 

times when Officer Alexander used latex gloves. Id. at ¶ 21-23. 

Mr. Dickey alleges two counts against the United States and 

Officer Alexander in his individual capacity: excessive force 

and unreasonable search and seizure in violation of the Fourth 

Amendment (Count I); and assault, battery and intentional 

infliction of emotional distress under the Federal Tort Claims 

Act (“FTCA”) (Count II). Id. at ¶¶ 24-39. Defendants move to 

dismiss Mr. Dickey’s complaint for lack of subject matter 

jurisdiction and failure to state a claim. Defs.’ Mem. Supp. 

Mot. Dismiss, Docket No. 7-1.1 Upon consideration of the motion, 

the response and reply thereto, the applicable law, and the 

entire record, Defendants’ Motion is GRANTED in part and DENIED 

1 The basis for Defendants’ Motion to Dismiss for Lack of Subject 

Matter Jurisdiction under Rule 12(b)(1) is that “the search of 

Plaintiff during his arrest [was] a legally authorized touching 

and the Supreme Court has determined that a search incident to 

arrest is an authorized warrantless search under the Fourth 

Amendment and is reasonable under that same Amendment.” Defs.’ 

Mem. Supp., Docket No. 7 at 4. Because this argument goes to the 

merits of Mr. Dickey’s claims, the Court’s analysis is limited 

to Defendants Motion to Dismiss for failure to state a claim 

under Rule 12(b)(6). 

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in part. 

I. Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6) tests the legal sufficiency of a complaint. Browning v. 

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The pleading must 

contain a “short and plain statement of the claim showing that 

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); 

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The pleading 

standard does not require detailed factual allegations, but 

should be “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. at 678. Naked assertions without 

factual enhancements or formulaic recitations of the elements of 

a cause of action will not suffice. Id. Rather, to survive a 

motion to dismiss, a complaint “must contain sufficient factual 

matter . . . to ‘state a claim to relief that is plausible on 

its face.’” Id. Plausibility entails that the plaintiff has pled 

factual content that is not merely consistent with liability but 

allows the Court to draw a reasonable inference that the 

defendant is liable for the alleged misconduct. Id.

In considering a 12(b)(6) motion, the Court should liberally 

view the complaint in the plaintiff’s favor, accepting all 

factual allegations as true, and giving the plaintiff the 

benefit of all inferences that can be drawn therefrom. Redding 

3
v. Edwards, 569 F. Supp. 2d 129, 131 (D.D.C. 2008) (citing Kowal 

v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). 

II. Analysis

A. The Qualified Immunity Doctrine

A plaintiff may bring suit against federal officials in 

their individual capacity for alleged constitutional violations. 

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

403 U.S. 388, 389 (1971). However, qualified immunity protects 

government officials from civil liability where their conduct 

does not violate “clearly established statutory or 

constitutional rights of which a reasonable person would have 

known.” Int’l Action Ctr. v. United States, 365 F.3d 20, 24 

(D.C. Cir. 2004). At the motion to dismiss stage, a plaintiff 

must allege sufficient facts to establish that the defendants 

are not entitled to qualified immunity. Patterson v. United 

States, 999 F. Supp. 2d 300, 311 (D.D.C. 2013) (internal 

citation omitted). The defendant bears the burden of pleading 

and proving qualified immunity. Id. 

As established by the Supreme Court, “the two pertinent 

questions in determining whether qualified immunity applies are 

(1) whether a constitutional right would have been violated on 

the facts alleged; and (2) whether the right was clearly 

established at the time of the violation.” Shaw v. District of 

Columbia, Case No. 12-0538, 2013 WL 1943032, at *4 (D.D.C. May 

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13, 2013) (quoting Saucier v. Katz, 533 U.S. 194 at 201 (2001)).

In sum, the facts alleged by a plaintiff must establish that the 

official violated a right protected by the constitution, and 

precedent must be sufficiently well established that a 

reasonable officer would have understood prior to acting that 

his conduct violates that right. 

Here, both of Mr. Dickey’s alleged constitutional 

violations——unreasonable search and excessive force——impinge on 

the Fourth Amendment, which guarantees the right of the people 

“to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures . . . .” U.S. Const. 

amend. IV. Each alleged claim will be analyzed below.

i. The facts alleged by Mr. Dickey state a claim for 

an unreasonable search in violation of his 

clearly established rights under the Fourth 

Amendment.

Officer Alexander argues that the search of Mr. Dickey was 

permitted under the Fourth Amendment because it was incident to 

his arrest. Defs.’ Mem. Supp., Docket No. 7 at 8-9. Mr. Dickey 

argues that the circumstances of his arrest did not provide 

Officer Alexander any basis to “perpetrate a sexual assault on 

him” by manipulating his penis and genitalia six times. Pl.’s 

Mem. Opp., Docket No. 9 at 8. 

The Fourth Amendment generally requires that law

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enforcement have “probable cause for conducting a search.” U.S. 

v. Scott, 987 A.2d 1180, 1195 (D.C. Cir. 2010). However, a 

critical exception to this general rule are searches conducted 

incident to arrest. Id. As explained by the Supreme Court:

The authority to search the person incident to a lawful 

custodial arrest, while based upon the need to disarm 

and to discover evidence, does not depend on what a court 

may later decide was the probability in a particular 

arrest situation that weapons or evidence would in fact 

be found upon the person of the suspect. A custodial 

arrest of a suspect based on probable cause is a 

reasonable intrusion under the Fourth Amendment; that 

intrusion being lawful, a search incident to the arrest 

requires no additional justification. 

United States v. Robinson, 414 U.S. 218, 235 (1973). Therefore, 

reasonable suspicion that Mr. Dickey possessed a weapon or 

illicit substances on his person was not necessary because 

Officer Alexander had probable cause to arrest and search Mr. 

Dickey for simple assault. See e.g. Pl.’s Mem. Opp., Docket No. 

9 at 4, 8 and 10. 

Nevertheless, where a search incident to arrest is 

unusually intrusive, the search may be deemed unreasonable and 

therefore in violation of the Fourth Amendment. WAYNE R. LAFAVE,

SEARCH AND SEIZURE, A TREATISE ON THE FOURTH AMENDMENT 145, § 5.2(c)

(West’s Criminal Practice Series, 6th ed. 2010) (hereinafter 

LAFAVE). In Bell v. Wolfish, the Supreme Court established an 

analytical framework to determine the reasonableness of a 

sexually intrusive search, holding courts must balance “the 

6
scope of the particular intrusion, the manner in which it is 

conducted, the justification for initiating it, and the place in 

which it is conducted.” 441 U.S. 520 at 559 (1979); see also 

Bame v. D.C., 637 F.3d 380, 387 (D.C. Cir. 2011) (internal 

citations omitted); see also Grissom v. Dist. of Columbia, 853 

F. Supp. 2d 118, 125 (D.D.C. 2012) (“The “unreasonableness” 

inquiry is a particularized one, taking into account the facts 

and circumstances of the particular case.”) (internal citations 

omitted). 

Under certain circumstances, strip searches have been found 

unreasonable and in violation of the Fourth Amendment. For 

example, in Campbell v. Miller, the Seventh Circuit concluded 

that although a search was permissible, the officer’s decision 

to conduct a strip search of a male suspected of possessing 

marijuana was unreasonable because it was conducted in a 

backyard where his neighbors could view the search. 499 F.3d 711 

at 718. The Court concluded that the search was not reasonable 

because it involved “public nudity and exposure of intimate body 

parts.” Id. Indeed, courts throughout the country have routinely 

condemned as unreasonable intrusive searches conducted in 

public. See e.g. Amaechi v. West, 237 F.3d 356, 364 (4th Cir. 

2001) (noting that “we have repeatedly emphasized the necessity 

of conducting a strip search in private” and concluding that 

“[t]he fact that, absent clear justification or exigent 

7
circumstances, an officer is not allowed to strip an arrestee on 

a public street pursuant to a search incident to arrest 

necessarily means that an officer cannot go even further than 

simply disrobing the arrestee by actually touching and 

penetrating the arrestee’s exposed genitalia on the public 

street.”); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984) 

(finding unconstitutional “routine strip searches in a public 

area of persons detained for minor traffic offenses.”). 

Here, Mr. Dickey alleges that the search was unreasonable 

because Officer Alexander “searched and fondled Mr. Dickey’s 

genitals and penis” and “intentionally humiliated Mr. Dickey by 

searching his genital region six (6) separate times while in a 

public parking garage while in the presence of both officers and 

civilian bystanders who worked in the same building where Mr. 

Dickey was employed.” Compl. ¶¶ 31, 33. The facts of this case 

are notably distinguishable from the authority discussed above 

because Mr. Dickey does not allege that he was stripped 

searched.2 Still, accepting all factual allegations as true and 

2 In his opposition brief, Mr. Dickey argues that Officer 

Alexander’s search was “extremely atypical” and best described 

as a “manual body cavity search.” Pl.’s Mem. Opp. at 2, fn 1. 

Mr. Dickey attempts to overstate his case. As discussed in 

Roberts v. Rhode Island: 

A “strip search,” though an umbrella term, generally 

refers to an inspection of a naked individual, without 

any scrutiny of the subject's body cavities. A 

“visual body cavity search” extends to visual 

8

 
adopting a liberal view the complaint, the Court cannot conclude 

that Officer Alexander’s search of Mr. Dickey’s was reasonable 

under the Fourth Amendment. Officer Alexander was surely 

entitled to pat Mr. Dickey down before taking him into custody.3

However, it is not clear that under the circumstances, searching 

Mr. Dickey a total of six times with two different sets of 

gloves was necessary or reasonable.4 More importantly, Mr. Dickey 

alleges that his genitalia were fondled in such a way as to 

constitute a “sexual assault.” Compl. 16. Based on these alleged 

facts, Mr. Dickey has stated a claim for an unreasonable search 

inspection of the anal and genital areas. A 

“manual body cavity search” includes some degree of 

touching or probing of body cavities.

175 F. Supp. 2d 176, 182, fn 5 (D.R.I. 2000). Therefore, the 

alleged surface touching of genitalia during a pat-down 

search incident to arrest that does not probe any body cavity 

does not constitute a “manual body cavity search.”

3 In Terry v. Ohio, the Supreme Court noted that a frisk, 

presumably less intrusive than a search incident to arrest, 

includes “a thorough search of the prisoner’s arms and armpits, 

waistline and back, the groin and area about the testicles, and 

the entire surface of the legs down to the feet.” 392 U.S. 1 at 

17, fn 13 (1968) (citing Priar & Martin, Searching and Disarming 

Criminals, 45 J. Crim. L.C. & P.S. 481 (1954)).

4 Officer Alexander argues that the search was conducted within 

his discretionary duties, and therefore permissible. Defs.’ Mem. 

Supp. at 7. According to the Federal Protective Service (FPS) 

Detention and Arrest Directive which states that a search 

incident to arrest “should be as thorough as circumstances 

allow.” Id., citing FPS Directive 15.5.2.3. Absent discovery

into the circumstances surrounding Mr. Dickey’s arrest, Officer 

Alexander’s discretionary duty defense is not persuasive. 

9

 
under the Fourth Amendment. See Grissom 853 F. Supp. 2d at 125

(“Although it is a close question . . . the Court cannot find as 

a matter of law that the search was reasonable. If Grissom is 

able to provide evidence supporting her allegations that the 

magnetometer was used to rub her genitals and that the search 

continued after she asked the officers to stop, she might 

succeed in proving that the search was unreasonable under the 

circumstances.”).

The Court also concludes that, assuming Mr. Dickey’s 

allegations are true, any reasonable officer would have 

understood that, at the time Mr. Dickey was taken in to custody, 

repeatedly fondling an individual’s genitals incident to their 

arrest would constitute a violation of that persons clearly 

established constitutional rights. See e.g. Stewart v. Rouse, 

1999 WL 102774, *5 (N.D. Ill, Feb. 22, 1999) (denying qualified 

immunity to Officer who allegedly fondled Plaintiff during patdown search incident to arrest because “the parameters of a 

search incident to arrest as an exception to the warrant 

requirement were well-established in 1997” and “objective police 

officers could agree that [aggressive groping, grabbing of groin 

and breasts] exceeded what was permitted by established law.”).

Defendants argue that “the true test for qualified immunity 

in this case was whether it was clearly established that Officer

Alexander was prohibited from alleged touching or manipulating 

10
the Plaintiff’s genitals through multiple layers of clothing . . 

. .” Defs.’ Mem. Reply at 8. Defendants are incorrect. The true 

test for qualified immunity in this case is whether, as Mr. 

Dickey alleges, the law clearly prohibited fondling such that it 

constituted “sexual assault.” Compl. ¶¶ 16-17. It did. See, e.g. 

Anderson v. Cornegjo, 199 F.R.D. 228, 259 (N.D. Ill. 2000) 

(noting that “no Customs inspector could reasonably believe that 

it could be appropriate to fondle a female traveler’s breasts, 

crotch area, or buttocks, even above her clothes.”)

Defendants also emphasize that Supreme Court precedent 

establishes that a search of an arrestee will be a “relatively 

extensive exploration of the person.” Id., citing U.S. v. Scott, 

987 A. 2d 1180, 1195 (D.C. 2010). This often cited language is 

from the Supreme Court’s decision in Robinson, where the Court 

quoted with approval language from Terry. See Terry, 392 U.S. at 

25; Robinson, 414 U.S. at 227. Two points deserve emphasis. 

First, the Court in Terry noted that “a thorough search must be 

made of the prisoner’s arms and armpits, waistline and back, the 

groin and area about the testicles, and the entire surface of 

the legs down to the feet.” Terry, 392 at fn. 13. A thorough 

search of the groin area is distinct from the fondling of 

genitalia. To this end, the Court in Robinson also noted that it 

would be willing to find unconstitutional a search that was 

“extreme or patently abusive.” Id. at 477. A search incident to 

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arrest that includes fondling alleged to constitute sexual 

assault is “extreme” and “patently abusive.” Put another way, no 

reasonable objective officer would conclude that an “extensive 

exploration” of a person could include fondling and sexual 

assault alleged in this case. For these reasons, Defendants’

Motion to Dismiss Mr. Dickey’s unreasonable search claim under 

the Fourth Amendment based on qualified immunity is DENIED. 

ii. The facts alleged by Mr. Dickey do not state a 

claim for excessive force in violation of his 

Fourth Amendment rights. 

Defendants argue that the facts pled by Plaintiff are 

insufficient to state a claim for excessive force. Defs.’ Mem. 

Reply at 3 (“Plaintiff alleges that the illegal forcefulness of 

the arrest is evident from the single ripped belt loop on the 

Plaintiff’s pants. Plaintiff does not allege that this occurred 

because the Inspector was holding onto the belt loop, if the 

loop was hooked on the handcuffs, or if it occurred when he was 

placed in the police car wearing handcuffs, etc.”). Mr. Dickey 

argues that the force used by Officer Alexander started during 

the search of Mr. Dickey incident to his arrest and “escalated 

to include Defendant Alexander breaking off one of Mr. Dickey’s 

belt loops.” Pl.’s Mem. Opp. at 7. 

Determining whether the force used to effect a particular 

seizure is “reasonable” under the Fourth Amendment requires a 

“careful balancing of the nature and quality of the intrusion on 

12
the individual’s Fourth Amendment interests against the 

countervailing governmental interests at stake.” Graham v. 

Connor, 490 U.S. 386, 396 (1989) (internal quotations omitted). 

The reasonableness inquiry is an objective one: that is, the 

court must determine whether the officer’s actions were 

“objectively reasonable” in light of the facts and 

circumstances, regardless of any underlying intent or 

motivation. Id. Moreover, the Court is mindful that police have 

authority to use “some degree of physical coercion” when 

arresting a suspect, see Graham, 490 U.S. at 396, and that 

“[n]ot every push or shove, even if it may later seem 

unnecessary in the peace of a judge’s chambers, violates the 

Fourth Amendment.” Id. (quoting Johnson v. Glick, 481 F.2d 1028, 

1033 (2nd Cir. 1973)). 

In this case, it is alleged that “in the course of 

conducting his arrest, Defendant Alexander forcibly pushed and 

pulled Mr. Dickey, which resulted in the ripping of one of Mr. 

Dickey’s belt loops.” Compl. ¶ 12. Accepting this allegation as 

true and drawing all inferences in Mr. Dickey’s favor, the Court 

concludes Mr. Dickey has failed to allege facts sufficient to

state a claim for excessive use of force. See e.g. Wasserman v. 

Rodacker, 557 F.3d 635, 641 (D.C. Cir. 2009) (holding that even 

where plaintiff was not moving or resisting, the arresting 

officer’s action of forcefully pressing upwards on plaintiff’s 

13
arm before handcuffing him, causing him pain, was not excessive 

force); Rogala v. District of Columbia, 161 F.3d 44, 54 (D.C. 

Cir. 1999) (concluding that a police officer who grabbed the 

arrestee by the arm and pulled her out of the vehicle’s 

passenger seat used a reasonable level of force and therefore 

committed no constitutional violation); Martin v. Malhoyt, 830 

F.2d 237 (D.C. Cir. 1987) (finding that the arresting officer 

did not use excessive force by allegedly grabbing a driver by 

the waist, throwing him back into the driver’s seat and slamming 

door on his legs); compare with Rudder v. Williams, 666 F.3d 

790, 795 (D.C. Cir. 2012) (holding that plaintiffs’ allegation 

that an officer’s unprovoked use of a baton against children 

aged five and 15 constituted a “degree of force unjustified by 

the circumstances.”). 

Because Mr. Dickey only alleges that his belt loop was torn 

due to what he characterizes as “pushing” and “pulling” by 

Officer Alexander, he does not allege facts sufficient to state 

a plausible claim for excessive use of force in violation of his 

Fourth Amendment rights. As such, Defendants’ Motion to Dismiss 

Mr. Dickey’s claim of excessive force under the Fourth Amendment 

is GRANTED. 

B. Mr. Dickey states a claim for battery, assault and 

intentional infliction of emotional distress under the 

Federal Tort Claims Act (“FTCA”). 

Void of a single case citation discussing the FTCA, 

14
Defendants contend that Mr. Dickey’s FTCA claims fail based on 

the same arguments set forth in opposition to Mr. Dickey’s 

unreasonable search claim. Defs.’ Mem. Supp. at 13-15 (“Even 

taking the facts as pled, [n]one of these searches were 

unreasonable or unlawful under the circumstances and were 

authorized by law; and as authorized searches, the touching of 

the Plaintiff does not amount to nor does it constitute assault, 

battery and intentional infliction of emotional distress.”); 

Defs.’ Mem. Reply, Docket No. 10 at 8 (“As discussed above, 

although the Plaintiff has alleged that Officer Alexander’s 

search violated the rules for a search indecent to arrest, the 

Courts have clearly established such a search will be a 

‘relatively extensive exploration of the person.’”) (internal 

citations omitted)). Plaintiff’s briefing of his FTCA claims, 

consisting of three conclusory paragraphs, is equally unhelpful. 

Pl.’s Mem. Opp. at 7 and 14. 

The United States is immune from suit absent an express 

waiver of its sovereign immunity. Kugel v. United States, 947 

F.2d 1504, 1506 (D.C. Cir. 1991). The FTCA was enacted in 1946, 

designed primarily to “remove the sovereign immunity of the 

United States from suits in tort.” Levin v. United States, 133 

S.Ct. 1224, 1228 (2013) (internal citations omitted). The FTCA 

gives federal district courts exclusive jurisdiction over claims 

against the United States for “injury or loss of property, or 

15
personal injury or death caused by the negligent or wrongful act 

or omission” of a federal employee “acting within the scope of 

his office or employment.” Millbrook v. U.S., 133 S. Ct. 1441, 

1443 (2013); 28 U.S.C. § 1346 (b)(1). 

However, the statute includes a number of exemptions that 

protect the Government from liability for certain torts. Id. For 

example, the statute includes an “intentional tort exception,” 

which preserves the Government’s immunity for “[a]ny claim 

arising out of assault, battery, false imprisonment, false 

arrest, malicious prosecution, abuse of process, libel, slander, 

misrepresentation, deceit, or interference with contract 

rights.” § 2680(h). This means that government employees cannot 

be sued for these intentional torts under the FTCA. However, in 

1974, Congress carved out an exception to Section 2680(h), 

commonly referred to as the “law enforcement provisio,” which 

extends the waiver of sovereign immunity to six intentional 

torts when alleged as rising out of the wrongful conduct of law 

enforcement officers. See Act of Mar. 16, 1974, Pub. L. 93-253, 

§ 2, 88 Stat. 50. This means that “anyone empowered by law to 

execute searches, to seize evidence or to make arrests for 

violations of federal law” may be sued for the following 

intentional torts: assault, battery, false imprisonment, false 

arrest, abuse of process, or malicious prosecution. Id. In 2013 

the Supreme Court held that “the waiver effected by the law 

16
enforcement proviso extends to acts or omissions of law 

enforcement officers that arise within the scope of their 

employment, regardless of whether the officers are engaged in 

investigative or law enforcement activity, or are executing a 

search, seizing evidence, or making an arrest.” Millbrook v. 

United States, 133 S. Ct. 1441, 1446 (2013). 

Here, Mr. Dickey’s battery and assault claims are feasible 

under the FTCA because the waiver of sovereign immunity is 

extended to battery and assault by the law enforcement proviso. 

Mr. Dickey’s intentional infliction of emotional distress claim 

is possible because it is not one of the intentional torts 

listed by Congress in the § 2680(h) exception. Each of these 

claims are plausibly alleged in connection with Mr. Dickey’s

claim of an unreasonable search in violation of his Fourth 

Amendment rights. The burden is on Defendants to show that Mr. 

Dickey’s FTCA claims should be dismissed. Because Defendants do 

not make any persuasive arguments to that end, Defendants’ 

Motion to Dismiss Mr. Dickey’s FTCA claims is DENIED.5

5 Plaintiffs suing under the FTCA must exhaust their 

administrative remedies prior to filing suit. McNeil v. United 

States, 508 U.S. 106 (1993). “The exhaustion requirement is 

jurisdictional.” Hurt v. Lappin, 729 F. Supp.2d 186, 190 (D.D.C. 

2010) (citing GAF Corp. v. United States, 818 F.2d 901, 904) 

(D.C. Cir. 1987). That is, exhaustion is a “mandatory 

prerequisite” to a court suit under the FTCA. Id. Here, Mr. 

Dickey alleges that he exhausted his administrative remedies by 

“sending notice of his claim to the Federal Protective Services 

on or about May 13, 2014 (less than a year after the incident 

17

 
III. CONCLUSION

After consideration of the motion, the response and reply 

thereto, the applicable law, and the entire record, for the 

reasons discussed in this Memorandum Opinion, Defendant’s Motion 

is GRANTED in part and DENIED in part. An appropriate order 

accompanies this Memorandum Opinion. 

Signed: Emmet G. Sullivan

 United States District Court Judge

 March 30, 2016

occurred), and more than six (6) months have expired without a 

response.” Compl. ¶ 23. Although no evidence of this exhaustion 

is attached to Mr. Dickey’s complaint, Defendants do not contest 

his claim of proper exhaustion. 

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