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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________

)

JOHNNY RAY CHANDLER, SR., )

)

Plaintiff, )

)

v. ) Civil Action No. 16-2141 (BAH)

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FEDERAL BUREAU OF PRISONS, et al., )

)

Defendant. )

___________________________________ )

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

The plaintiff is in the custody of the Federal Bureau of Prisons (“BOP”) and was 

incarcerated at the Administrative Maximum United States Penitentiary in Florence, Colorado

(“ADX Florence”) at all times relevant to the Complaint. Defs.’ Mem. of P. & A. in Support of 

Mot. to Dismiss (“Defs.’ Mem.”), Decl. of Patrick Kissell (“Kissell Decl.”) ¶ 2. He alleges that, 

on July 8, 2016, he “attempted to serve the defendants [in a separate civil action in the Superior 

Court of the District of Columbia] by certified mail[, and] the Unit Counselor told [him] that the 

BOP will not pay the postage for certified mail.” Compl., ECF No. 1-1 at 2. According to the 

plaintiff, the BOP and its former Director, Charles Samuels, Jr., are “factually guilty of malicious 

interference and denial of access to the Court.” Id. The plaintiff demands a judgment in his 

favor, id. at 1, monetary damages of $75,000, id., and a “permanent restraining ORDER ordering 
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the defendant[s] to pay the postage for indigent Plaintiff[]s to make service of process by 

certified mail,” id. at 2 (emphasis in original).

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 the 

plaintiff submitted 19 formal administrative remedy requests between July 8, 2016 and 

December 1, 2016. Id. ¶ 7. Two advanced to the Office of General Counsel, id. ¶ 8, and neither 

“involves the allegations set forth in the Complaint in this action,” id. ¶ 9. Therefore, the

declarant avers, 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. 

His review of “the BOP’s Administrative Tort Claims database [reveals that the p]laintiff did not 

submit any administrative tort claims related to the claims alleged in this litigation.” Id. ¶ 11. 

II. DISCUSSION

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

19, 2016, and the defendants removed the action on October 25, 2016. See Notice of Removal, 

ECF No. 1. Accompanying their notice was a statement certifying “that Charles Samuels, Jr. 

was 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 

the instant motion to dismiss or for summary judgment on December 22, 2016. 

On December 23, 2016, the Court issued an Order, ECF No. 6, advising the plaintiff of 

his obligations under the Federal Rules of Civil Procedure and the local civil rules of this Court. 
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Specifically, the Court notified the plaintiff that, if he failed to file an opposition or other 

response to the defendants’ motion by January 27, 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, requested more time to 

file an opposition, or advised the Court of any change of address.1 

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. The Court presumes without deciding that the complaint adequately 

alleges a claim of “malicious interference” and that venue in this district is proper for purposes of 

this Memorandum Opinion.

A. Federal Tort Claims Act

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

Samuels 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).

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 The plaintiff did file a motion on January 13, 2017 to hold this motion in abeyance for 30 days pending his return 

to ADX Florence from the Federal Medical Center in Springfield, Missouri, where he had been transferred on or 

about September 7, 2016, without his case files. 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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“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 show that the plaintiff did not file an 

administrative tort claim with the BOP, see Kissell Decl. ¶ 11, and therefore failed to exhaust his 

administrative remedies under the FTCA. Furthermore, if the Complaint were construed as one 

bringing a malicious interference with contract claim, the claim is expressly excluded from 

FTCA coverage. See 28 U.S.C. § 2680(h) (excluding “[a]ny claim arising out of . . . abuse of 

process, . . . or interference with contract rights”).
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B. Prison Litigation Reform Act

The plaintiff faces a different set of exhaustion requirements if the Court were “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 7. 

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). It 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)).

The defendants demonstrate that neither of the administrative remedy requests filed by 

the plaintiff between June 8, 2016 and December 1, 2016 which reached the final step of the 

administrative remedy process pertains to the defendants’ alleged interference with the plaintiff’s 

effort to serve process on defendants by certified mail in another civil action. Thus, the 

defendants demonstrate that the plaintiff failed to exhaust his administrative remedies under the 

FTCA and the PLRA. 
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III. CONCLUSION

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

filing this civil action, and, therefore, the Court will grant the defendants’ motion to dismiss. An 

Order consistent with this Memorandum Opinion is issued contemporaneously.

DATE: April 24, 2017 /s/ Beryl A. Howell

BERYL A. HOWELL

United States District Judge