UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

_____________________________________ ) KEVIN HAR GR OVE, ) ) P laintif f, )

) v. ) Civil Action No. 08-743 (R WR) ) BERNARD G OODING et al., ) ) Defendan ts. )

_____________________________________ )
MEMORAN DUM OP INION Plaintiff Kevin Har g rove f iled a pro se complaint ag ainst the Court Services a nd Offe nder Supervision Ag ency

(“CSOSA”), a

fede ral a g ency , and seve ral CSOSA employees a ssertingtort claims for intentional infliction of e motional dist ress a nd neg lige nce. The fe dera l defe ndants 1 have f iled a motion to dism iss the complaint arguing that this court lacks jurisdiction over this matter be cause the plaintiff did not exhaust his admini strative re medies bef ore f iling suit. The plaintiff filed a

n opposition, butdid not address the me rits of the motion. Bec ause H argrove did not exhaust hi s administrative reme dies, the complaint will be dismissed without prejudice for lack of subject matter jur isdiction. Har g rove a lleg es that, in the fa ce of strongevidenc e to the contr ary and Ha rg rove’ s opposition, a CS OSA employ ee, B erna rd Gooding , knowing ly

used inac curate information to
cre ate a document statingthat Har grove “ repor ts previously

experiencingpsy chosis due to chronic PCP usag e.” Compl. Ex. 1; see also id. at 4-5. The complaint also alleg es that Gooding

Har g rove a lso named the District of Columbia as a defe ndant, but it was dismissed as a 1 defe ndant by

order dated Septembe r 4, 2008.- 2 -

require d Har g rove to sig n the alleg edly false a nd misleadingdocument, which H argrove signed only under dur ess. Id. at 5. As a r esult, Hargrove w as re quired to complete 28 to 120 day s of residential substanc e abuse treatment. Id. , Ex . 1. The c omplaint also alleg es, with documenta ry support, that other individual defe ndants knew, or had g ood rea son to know, that Gooding ’s statement about Ha

rg rove’ s chronic PCP use was unsubstantiated. The claims ag ainst the other individual defenda

nts are ba sed on a f

ailure to c orre ct Gooding ’s alleg edly inacc urate document and unjustified treatment require ment, or a f ailure to prope rly

train and supe rvise Gooding
. Id. 6- 7. Har g rove did not administratively exhaust his claims before f iling this suit. See Fe d. Def s.’ Mot. to Dismi ss, Decl. of Gre g ory Smit h. The F eder al Tort Claims Act (“ FTCA” ), 28 U.S.C. §§ 1346(b), 1402(b) , 2401(b) a nd 2671-80, with its waiver of the United States’ sove reign immunit y with reg ard to some torts, provides the only

possible rig ht of ac tion for the tort cla ims Hargrove a sserts. Totten v. Norton, 421 F. Supp. 2d 115, 122 (D.D .C. 2006) (“[N]eg lige nce a nd intentional infliction of emotional distress are tort claims, and the only possible jurisdictional basis for tort claims ag ainst a fe dera l ag ency is the Fe dera l Tort Claims Act[ .]”); see also Koch v . United States, 209 F. Supp. 2d 89, 94 (D.D.C. 2002) ( noting that a “cla im for intentional infliction of emotional distress is not expli citly excluded from the F TCA” by 28 U.S.C. § 2680(h)). The FTCA pr ovides that an a ction ag ainst the United States is the exclusive remedy in personal injury

case s arisingfrom the neg lige nce of

fede ral e mploy ees a ctingwithin the scope of the ir employ ment. 28 U.S.C. § 2679(b)( 1). He re, the United States Attorney Gene ral, through his designe e, has c ertified that the individuals Hargrove na med as de fenda

nts were actingwithin the scope of the ir fede ral- 3 -

employ ment. See Fe d. Def

s.’ Mot. to Dismis s, Certification of Rudolph Contrera s. Thus, the United States is to be substitut ed as the sole defe ndant. 28 U.S.C. § 2679(d)(1)
. The F TCA require s plaintiffs to exhaust t heir a dminist rative r emedies by first prese nting their cla ims to t he appr opriate f eder al ag ency

befor e instituti nga civil ac tion, see28 U.S.C. § 2675(a) , and to pre sent the cla im within two y ear s of the date of the injury
. See 28 U.S.C. § 2401(b) ( “A tort c laim ag ainst the United States shall be for ever barr ed unless it is presente d in writingto the appropr iate fe dera l ag ency within two y ear s after

such cla im accr

ues[.] ”). Moreove r, “‘ this administ rative e x haustion require ment is a jurisdictional prer equisite[.] ’” Hill v. United States, 562 F. Supp. 2d 131, 134 (D.D .C. 2008) (quoting Haye s v. United States, 539 F. Supp. 2d 393, 398-99 (D.D.C. 2008)) . Since Har g rove did not administratively exhaust his t ort claims ag ainst CSOS A and its employ ees be fore filing this ac tion, this court doe s not have jurisdiction to hear this FTCA suit, and the c omplaint mustbe dismissed for lac k of subject matter jurisdiction. Howeve r, whe re, a s here , the United States is substitut ed as the defe ndant and the c ase must be dismis sed for

failure to exhaust admini strative re medies, the plaintiff ha s an additional six ty day s after

the cour t case is dismi ssed to file an a dministrative c laim with the appropriate ag ency , if the orig inal lawsuit was commenc ed within the two y ear time period allowe d for f iling a cla im. See 28 U.S.C. § 2679(d)(5). The c omplaint reflec ts that Hargrove’ s injury dates fr om 2 28 U.S.C. § 2679(d)(5) pr ovides that: 2 Whenever

an ac tion or proce edingin which the United States is substituted as a par ty defe ndant under this subsection is dismissed for fa ilure first to pre sent a c laim pursuant to section 2675(a ) of this titl e, such a

claim shall be de emed to be timely prese nted under

section 2401(b) of this title if- (A) the claim would have been timely had it been f

iled on the date the underly ing c ivil action was commence d, and- 4 -

J une 26, 2006, and that he submitted this l awsuit for f iling on Mar ch 31, 2008, bef ore the end of the two y ear s allowed for filing a n administrative claim under the FT CA. Be cause this court must dism iss this suit, Harg rove ha s six ty day s from the date of the or der that acc ompanies this memorandum opinion to file an a dminist rative F TCA claim with the Gene ral Counsel of CSOS A. I f Ha

rgrove doe s not file a wr itten administrative claim with the Gene ral Counsel of CSOS A within that time, his claim will be “f oreve r bar

red.” 28 U.S.C. § 2401(b). For the re asons stated, this complaint will be dismiss ed without prejudice for lac k of subject matter jur isdiction. A separate orde r ac companies this memora ndum opinion. SI GNED this 14th day

of May , 2010.
/s/

RI CHARD W. R OB ERTS United States District J udg e

(B ) the c laim is presented to the a ppropriate Fe dera l ag ency within 60 day s after

dismiss al of the civil action.