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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________

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JOHNNY RAY CHANDLER, SR., )

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Plaintiff, )

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v. ) Civil Action No. 16-2166 (BAH)

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FEDERAL BUREAU OF PRISONS, et al., )

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Defendants. )

___________________________________ )

MEMORANDUM OPINION

This matter is before the Court on the defendants’ Motion to Dismiss, ECF No. 5. For 

the reasons discussed below, the motion will be granted.

I. BACKGROUND

At all times relevant to the complaint, the plaintiff was in the custody of the Federal 

Bureau of Prisons (“BOP”) and incarcerated at the Administrative Maximum United States 

Penitentiary in Florence, Colorado. Defs.’ Mem. of P. & A. in Support of Mot. to Dismiss 

(“Defs.’ Mem.”), Decl. of Patrick Kissell (“Kissell Decl.”) ¶ 2. On June 9, 2016, the plaintiff 

“attempted to mail a civil claim” to the Superior Court of the District of Columbia. Compl. at 2. 

Notwithstanding the plaintiff’s indigence, his counselor, defendant M. Wyche, refused to affix 

the necessary postage for mailing the document to the Superior Court. Id. The plaintiff 

considered this action a violation of his “First Amendment right to access . . . the court.” Id. at 1. 

For this alleged abuse of process, the plaintiff has demanded judgment in the sum of $175,000 

from both defendant Wyche and the BOP. Id.
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The BOP’s Administrative Remedy Program is the means by which inmates may “seek 

formal review of any aspect of their confinement.” Kissell Decl. ¶ 4. It “is typically a fourtiered review process comprised of an informal resolution process and then formal requests to the 

Warden, the Regional Director, and the Office of the General Counsel.” Id. ; see id. ¶ 5. The 

“process is not complete until the Office of General Counsel replies, on the merits, to the 

inmate’s [request].” Id. ¶ 5 (citing 28 C.F.R. § 542.18). The BOP’s declarant states that, of the 

26 formal administrative remedy requests submitted by the plaintiff between June 9, 2016 and 

December 20, 2016, id. ¶ 7, two advanced to the Office of General Counsel, id. ¶ 8. Neither 

“relate[s] to the claims alleged in this litigation,” however. Id. ¶ 9. The declarant avers that the 

“[p]laintiff did not exhaust his remedies as related to complaints against the defendants raised in 

the present case through BOP’s Administrative Remedy Program.” Id. ¶ 10.

On June 21, 2016, the plaintiff “submitted a ‘Federal Tort Claim’ with BOP . . . alleging 

that BOP had failed to provide postage for a civil complaint on June 9, 2016.” Id. ¶ 11; see 

generally Defs.’ Mem., Ex. 1 (Claim for Damage, Injury, or Death). BOP acknowledged receipt 

of the tort claim and on July 18, 2016, notified the plaintiff “that it would investigate the claim 

under the procedures for Federal Tort Claim Act complaints.” Id. ¶ 12. The plaintiff withdrew 

his claim on July 21, 2016, id. ¶ 13, because the matter had been resolved, see Defs.’ Mem., Ex. 

1 (Memorandum dated July 21, 2016). Thereafter, the BOP closed the claim. Defs.’ Mem., Ex. 

1 (Letter to the plaintiff from Richard W. Schott, Regional Counsel, dated July 26, 2016).

II. DISCUSSION

The plaintiff filed his complaint in the Superior Court of the District of Columbia on July 

25, 2016, and the defendants removed the action on October 28, 2016. See Notice of Removal, 

ECF No. 1. Accompanying their notice was a statement which certifies that “Mr. M. Wyche was
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acting within the scope of his employment as an employee of the United States at the time of the 

. . . incidents” alleged in the Complaint. Certification, ECF No. 1-2. The defendants filed a 

motion to dismiss or for summary judgment on January 6, 2017. 

On January 9, 2017, the Court issued an Order advising the plaintiff of his obligations 

under the Federal Rules of Civil Procedure and the local civil rules of this Court. See Neal v. 

Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 

1988). Specifically, the Court notified the plaintiff that, if he failed to file an opposition or other 

response to the defendants’ motion by February 17, 2017, the Court would treat the pending 

dispositive motion as conceded. See D.D.C. Local Civil Rule 7(b) (permitting court to “treat . . . 

as conceded” a motion not met with a timely opposing memorandum of points and authorities). 

To date, the plaintiff has not filed an opposition to the pending motion, or requested more time to 

file an opposition.

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Under these circumstances, the Court ordinarily would grant the defendants’ motion as 

conceded. The United States Court of Appeals for the District of Columbia Circuit recently has 

raised concerns, however, about the application of Local Civil Rule 7(b) to grant an unopposed 

motion to dismiss. See Cohen v. Bd. of Trs. of the Univ. of the District of Columbia, 819 F.3d 

476, 482 (D.C. Cir. 2016). In light of this ruling, the Court briefly addresses the merits of the 

defendants’ arguments for dismissal on the ground that the plaintiff has not exhausted his 

administrative remedies.

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 The plaintiff did file a motion on February 9, 2017 to hold this motion in abeyance for 30 days ending the return 

of legal papers and other materials confiscated from his cell on or about January 10, 2017. See generally Pl.’s Mot. 

for Abeyance, ECF No. 7. He has not filed an opposition or any other document since. The motion will be denied.

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 For purposes of this Memorandum Opinion, the Court presumes without deciding that the complaint adequately 

alleges an abuse of process claim and that venue in this district is proper.
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A. Federal Tort Claims Act

The plaintiff’s demand for monetary damages arises from action taken by Mr. Wyche 

within the scope of his federal employment. The Court treats the plaintiff’s claim as one under 

the Federal Tort Claims Act (“FTCA”) against the United States directly. See 28 U.S.C. § 

2679(b)(1), (d)(1).

“It is axiomatic that the United States may not be sued without its consent and that the 

existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 

212 (1983). Under the doctrine of sovereign immunity, the United States is immune from suit 

unless Congress expressly has waived the defense of sovereign immunity by statute. See id. The 

FTCA operates as a limited waiver of sovereign immunity, rendering the United States amenable 

to suit for certain, but not all, tort claims. See, e.g., Richards v. United States, 369 U.S. 1, 6 

(1962). Limitations under and exceptions to the FTCA doom the plaintiff’s claims. Relevant to 

this case is the exhaustion requirement: 

An action shall not be instituted upon a claim against the United 

States for money damages for injury or loss of property or personal 

injury or death caused by the negligent or wrongful act or omission 

of any employee of the Government while acting within the scope 

of his office or employment, unless the claimant shall have first 

presented the claim to the appropriate Federal agency and his claim 

shall have been finally denied by the agency in writing and sent by 

certified or registered mail. The failure of an agency to make final 

disposition of a claim within six months after it is filed shall, at the 

option of the claimant any time thereafter, be deemed a final denial 

of the claim for purposes of this section.

28 U.S.C. § 2675(a) (emphasis added). “The FTCA bars claimants from bringing suit in federal 

court until they have exhausted their administrative remedies,” and a claimant’s “fail[ure] to 

heed that clear statutory command” warrants dismissal of his claim. McNeil v. United States, 

508 U.S. 106, 113 (1993). Here, the defendants contend that the plaintiff failed to exhaust his 

administrative remedies because he filed his complaint in the Superior Court prematurely. He 
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“was required to wait until his administrative remedy was denied or six months had passed 

without action before filing suit.” Defs.’ Mem. at 6. The plaintiff filed his action in the Superior 

Court on July 25, 2016, or 34 days later, long before the six-month limitations period expired.

B. Prison Litigation Reform Act

The plaintiff faces a different set of exhaustion requirements if the Court were to “to 

conclude that [the plaintiff’s] claims should be governed by the administrative processes required 

under the Prison Litigation Reform Act (‘PLRA’).” Defs.’ Mem. at 10. 

In relevant part, the Prison Litigation Reform Act (“PLRA”) provides:

No action shall be brought with respect to prison conditions under 

section 1983 of this title, or any other Federal law, by a prisoner 

confined to any jail, prison, or other correctional facility until such 

administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is mandatory and “applies to all 

prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 

516, 520 (2002); see Jones v. Bock, 549 U.S. 199, 211 (2007). Exhaustion under the PLRA

requires proper exhaustion, meaning that a prisoner must comply with procedural rules, 

including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the 

relief offered through the administrative process. See Woodford v. Ngo, 548 U.S. 81, 85 (2006); 

Booth v. Churner, 532 U.S. 731, 741 (2001). Thus, a prisoner may file a civil action concerning 

conditions of confinement under federal law only after he has exhausted the prison’s 

administrative remedies. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 

2001). Exhaustion under the PLRA is an affirmative defense, Jones, 549 U.S. at 216, which “the 

defendants have the burden of pleading and proving.” Brengettcy v. Horton, 423 F.3d 674, 682 

(7th Cir. 2005) (quoting Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (internal quotation 

marks omitted)).
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The defendants demonstrate that neither of the administrative remedy requests filed 

between June 9, 2016 and December 20, 2016 which made their way to the Office of General 

Counsel pertains to the alleged abuse of process arising from the defendants’ failure to provide 

postage for mailing a document to the Superior Court. Thus, the defendants demonstrate that the 

plaintiff failed to exhaust his administrative remedies under the FTCA by filing his complaint too 

soon, and failed to exhaust under the PLRA by filing no administrative remedy request at all. 

III. CONCLUSION

The Court concludes that the plaintiff failed to exhaust his administrative remedies under 

the FTCA and the PLRA. For this reason, the Court will grant defendants’ motion in its entirety. 

An Order consistent with this Memorandum Opinion is issued contemporaneously.

DATE: April 17, 2017 /s/ Beryl A. Howell

BERYL A. HOWELL

Chief Judge