UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

_________________________________________ ) DI L I O ANTO NI O ESCARRI A-MONT ANO, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-1389 ( RW R) ) UNI TED STATES OF AMERI CA, ) ) ) Def endant. ) __________________________________________)

MEMORANDUM OPI

NI ON Plaintiff, proce eding pro se , is a fede ral prisone r at the F eder al Corre ctional Institut ion in BigSpring, Te x as. He sues under the Torture Victim Protection Act of 1991 ( “TVPA” ), Pub. L

. No. 102-256, 106 Stat. 73 (codif ied at 28 U.S.C. § 1350, note ), and Bivens v . Six Unknown 1 Named Agents of Fede ral Bureau of Narcotics , 403 U.S. 388 (1971), for injunctive relief

and monetary damag es. By

Orde r of Aug

ust 18, 2010, the Bivens claim was dismissed pursuant to 2 the scre eningprovisions of 28 U.S.C. § 1915A for fa ilure to state a c laim, but the TVPA claim

was a llowed to proce ed ag ainst the United States. See Mem. Op. and O rder [Dkt. # 4] . The United States now moves to dismiss under Fe dera l Rule of Civil Procedur e 12(b) (1) f or lac k of

SeeHistorical and Statutory Notes, Sec. 1. Short Title. 1 Plaintiff also invokes 18 U.S.C. § 2340(2)(A) , but that provision is part of a fe dera l 2 criminal statute that states that “ [n] othing in this chapte r shall be c onstrued as . . . c reating a ny substantive or proc edura l rig ht enforc eable by law by any party in any civil proce eding .” 18 U.S.C. § 2340B.subject matter jur isdiction and Rule 12(b)(6) for f ailure to state a

claim upon which r elief c an be g rante d. Be cause plaintiff has not shown that he e x hausted his administrative re medies under either the TVPA or the F eder al Tort Claims Act (“ FTCA” ), 28 U.S.C. §§ 1346(b), 2671-2680, the motion to dis miss under Rule12(b)( 1) will be g rante d. BA CKGROUND Plaintiff is a Columbi an national who ple d guilty under a plea a g ree ment to conspirac y to possess with intent to dis tribute coc aine while on boa rd a ve ssel and is servinga sente nce of 168 months. U.S. v. Esc arria-Montano , No. 8:06-cr -499-T- 23TGW, 2010 W L3927677, at *1 (M.D. Fla. O ct. 4, 2010). The instant complaint arises fr om plaintiff’s alleg ed injuries sustained dur ing

an enc ounter on Nove mber 29, 2006, be tween a Panamanian f

ishing ve ssel that he wa s on and a United States vessel, whic h resulted in his arr est. The f acts a s rec ounted by

the cour t presiding over pla intiff’s collater al proc eeding under 28 U .S.C. § 2255 are as f ollows: On or ab o ut November 29, 2006, the defe ndant along with seven other coconspirator cre w members, all Colombi an nationals, wer e trave ling in the Easter n Pacific on the fishing vessel the Mary Valenc ia. The cre w of the Mary Valenc ia had depar ted the coast of Colombi a car rying a carg o of 108 bales of coca ine. They wer e spotted approximate l y 2 4 0 nautical miles from the near est land mass, the Malpelo I sland, in international waters. The Mary Valenc ia was fl y i n g u n der a Panamanian flag and had marking s of reg i s t ra t i o n on it. The Panamanian Gover nment was c o nta c te d to verify reg istration. The Panamanian Gove r nme nt c o n f

ir me d Pa n a ma n ia n reg istration of the vessel and g rante d authority to board an d s earch the Mary Valenc ia. The Col o mbian Gover nment was also contac ted when the cre w asser ted Colombi an citizenship. The Colombi an Gover nment authorized jurisdiction over the prosec ution of 6 out of the 8 cr ew membe rs, to include the de fenda nt. On November 29, 2006, a Helo team launche d from the USS Thatch spotted the Mary Valenc ia during a routine patrol of the Easter n Pacific. The Mary Valenc ia chang ed it's [si c] course in an eff ort to elude the Helo team' s eff orts to ha il her. The USS Thatch then proc eede d to interce pt the Mary Valenc ia. As the USS Thatch approa ched the Mary Valenc ia it went dead in the water and the cre w members wer e observe d attempting to scuttle the vessel by setting it on fire. As a result there was a viol ent ex plosion that resulted in the s ever e inj uries of sever al of the cre w members. The cre w members jumped into the water and wer e 2resc ued by a USS Coast Guar d Boa rding Team dispatched from the USS Thatch for the purpose of rende ring assistance to the cre w members i n t h e wa ter. Once they acc ounted for all of the cre w members in the water , the Coast Guar d Boa rding Team boarde d the Mary Valenc ia to sear ch for other crew m em b er s who may have been injured and still on the boat and to asse ss the damag e. A sear ch of the vessel reve aled that the cre w had attempted to set the boat on fire by stuffing the fuel tank with fuel soaked rag s and pouring g asoline on the deck of the boat. A further search revea led a hidden compartment on the Mary Valenc ia in which was f

ound 108 bales of a

substance tha

t tested positive for coc aine. The Def endant' s prese nce on the vessel was part of an unlawful agre em en t with others to possess with intent to distribute five (5) or more kilogr ams of coca ine. The Mary Valenc ia was seized with approximately 2700 kilos of cocaine on board and the Def

endant and 5 co-c onspirators wer e taken into custody by the Coast Guar d with the M i d d le District of Florida being the place at which the defe ndant and co-de fenda

nts en t ered the United States. The other two cre w men most sever ely injured in the explosion were re turned to Colombia for tre atment and pr osecution. Escarria-Montano , 2010 WL3927677, at *1. In this action, plaintiff alleg es that he suf fer ed first, second a

nd third deg ree burns on var ious parts of his body from the e x plosion, Com pl. ¶ 14, and that he w as unconsc ious for three day s and hospitalized for 15 day s. Id . at ¶¶ 18- 19. He advanc es the followingcause s of ac tion: “Misuse of For ce,” id . at 7-8; “D enial of D ue Proce ss,” id . at 9-10; and “ Denial of Medica l Care,” id . at 12. In addition to declar atory and injunctive 3 relief , plaintiff see ks $1.9 mill ion in compensatory damag es and more than $1.2 million i n punitive damag es. Id . at 19. DI SCUS SI ON Def endant a rgues that plaintiff’s c laim is barre d by sovere ign immunity . The United States, as sovere ign, is immune fr om suit absent its ex plicit consent to be sued. Lehman v. Nakshian , 453 U.S. 156, 160 (1981); Kugel v. United States , 947 F.2d 1504, 1506 ( D.C. Cir.

The 21-pa g e complaint and its var ious attachments ar e fa r fr om clear . To add to the 3 confusion, the c omplaint contains two sets of pag e number s. Where nec essar y , plaintiff’s pag e numbers appe aringat the top rig ht-hand c orner of the 21-pa g e complaint ar e cited. 31991). A wa iver of “ sovere ign immunity must be unequivoca lly

expressed in statutory

text ” and will be “strictly

construed, in ter

ms of its scope, in favor

of the sover eig n.” El-Shifa Pharm. Indus. Co. v. United States , 402 F. Supp. 2d 267, 270 (D.D .C. 2005) (quoting Lane v. Pe na , 518 U.S. 187, 192 (1996)). Section 1350 of Title 28 of the United States Code (“A lien’s ac tion for tort”) ve sts in the district court “or igina l jurisdiction of any civil action by

an alien f or a tort only , committed in violation of the law of na tions or a treaty

of the United States.” Howeve r, that statute, commonly ref err ed to as the A lien Tort Claims Act (“A TCA”) or the Alien Tort Statute (“ ATS”), ha s been interpre ted as “ strictly

jurisdictional [ in] nature ”; it does not itself “cr eate a statutory cause of action.” Sosa v. Alvare

z-Mac hain , 542 U.S. 692, 713 (2004). Section 1350 is “intende d as jurisdictional in the sense of a ddressingthe power of the c ourts to enterta in case s conce rned w ith

a ce rtain subject.” Id ., 542 U.S. at 714; see id . at 720 (e x plaining “ that Congr ess intended [§ 1350] t o furnish jurisdiction for a relatively modest set of ac tions alleg ing violations of the la w of nations.”); Arias v. Dync orp , 517 F. Supp. 2d 221, 227 (D.D .C. 2007) (“It is clear that the ATCA may be used a g ainst corpor ations actingunder ‘ color of [state] law,’ or f or a ha ndful of private acts, such a s piracy

and slave trading .”) ( citations omitt ed). Torture is a subject the c ourts are authorized to addre ss under § 1350, inasmuch a s the TVPA cre ates a

cause of ac tion ag ainst an individual who subjects anothe r to torture or “extrajudicial killing” while ac ting “ under a ctual or a ppare nt authority , or color of law, of a ny fore ign nation[ .]” 28 U.S.C. § 1350, not e § 2(a ); see Ali Shafi v. Palestinian Auth’y , 686 F. Supp. 2d 23, 26 (D.D.C. 2010), aff’d , No. 10-7024, 2011 WL2315028 (D.C. Cir. J une 14, 2011) (“Tor ture is one of

the ra re situations in which cour ts have re cognized a common law ca use of

4action under the ATS.”) ( citation omitted). Unlike the F TCA, under which the United States ha s consente d to be sued for

cer tain offe nses but not others, neither the TVPA nor the A TCA contains languag e author izi nga lawsuit ag ainst the United States. See A l-Zahrani v. Rumsfield, 684 F. Supp. 2d 103, 113 (D.D .C. 2010) (agree ing w ith gove rnment’s c ertification under W estfall Act (28 U .S.C. § 2679(d)) that “plaintiffs c annot sue a ny of the individual[] [federa l employ ees] under the ATCA and that plaintiffs' sole reme dy lies ag ainst the g overnme nt under the F TCA”); Bieregu v . Ashcroft , 259 F. Supp. 2d 342, 354 (D.N .J . 2003) (“ [W ]i th respec t to Pl aintiff' s claims ag ainst Defe ndants in their offic ial capa cities, all courts that ha ve addr essed the issue a g ree that the ATCA does not itself wa ive the sover eig n immunit y of the United States.” ) (c iting ca ses); see also Ali Shafi , 686 F. Supp. 2d at 28 (“ Def endants c orre ctly

asser t that Ali may

not plead a c ause of ac tion ag ainst non-natura l persons under the TVPA.”) . But e ven if this lawsuit is maintainable under the TVPA, see Arias , 517 F. Supp. 2d at 226-27 ( resolvingmerits of TVPA cla im in favor of U.S. contra ctor), the TVPA, like the F TCA, require s the exhaustion of administrative remedie s prior to judicial re view. See28 U.S.C. § 1350, note § 2(b) (“ A cour t shall decline to hea

r a c laim under this sec tion if the claimant has not exhausted ade quate a nd available reme dies in the place in which the conduc t giving rise to the cla im occurr ed.”)

. Plaintiff has not shown that he has e x hausted his administrative re medies, and the exhaustion requirement is jurisdictional. See M ohammed v . Rumsfield, No. 07-5178, 2011 WL 2462851, at *7 (D.C. Cir. J une 21, 2011) ( concludingthat “[t] he district cour t [ ] properly dismiss ed the [unexhausted] ATS claims under F RCP 12(b)( 1) for lack of subject matter

5jurisdiction.”). There fore , in the absenc e of subjec t matter jurisdiction, defe ndant’s motion to 4 dismiss under Rule 12( b)(1) will be g rante d. CONCLUSI ON Be cause subject matter jur isdiction over this action is lacking , the complaint will be dismiss ed. A se parate Orde r ac companies this Memora ndum Opinion.

_________/s/_____________ RI CHARD W. R OB ERTS DATE: Jul y

12, 2011 United States District J udg e

Even if e x haustion has occ urre d, dismiss al would be a ppropriate under Rule 12( b)(6) 4 beca use the fa cts do not support a findingof torture as def ined by 28 U.S.C. § 1350, note, § 3(b); see Arias v. Dync orp , 517 F. Supp. 2d 221, 226 (D.D .C. 2007) (discussingdefinition). Plaintiff’s alleg ed injuries re sulted from the e x plosion set by his fellow cr ew membe rs. U.S. v. Esc arriaMontano , 2010 WL3927677, at *1. “An a ct of torture would not include ‘the unf orese en or unavoidable inc ident of some leg itimate end[,] ’ ” Arias , 517 F. Supp. 2d at 226 (c itation omitted), and the fa cts do not establish that plaintiff was “ in defe ndant[’] s custody or phy sical control” when he w as injured. Id . Fur thermore , amongthe attac hments to plaintiff’s complaint is an Orde r of United States Ma g istrate Judge Philip R. L ane of the Northe rn District of Te x as, dismiss ing pla intiff’s ca se -- including a claim under

§ 1350 arisingfrom the same set of f acts prese nted her e -- as frivolous. Com pl. Attach. D. The ref ore, the curr ent claim, havingbeen previously

adjudicate d on the merits, is also subject to dismissal as procedur ally barr ed under either the doctrine of

res judicata or that of c ollatera l estoppel. 6