United States District Court, D. ColumbiaApr 21, 2005
Civil Action No. 04-1846 (JDB) (D.D.C. Apr. 21, 2005)

Civil Action No. 04-1846 (JDB).

April 21, 2005


JOHN BATES, District Judge

Plaintiff, appearing pro se, has filed this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. Defendant has moved to dismiss or, in the alternative, for summary judgment and plaintiff has opposed that motion. Because plaintiff failed to exhaust his administrative remedies prior to filing the complaint in this case, defendant's motion will be granted and the case dismissed.


Plaintiff alleges that on July 23, 2003, he was summoned to appear at an immigration removal hearing in Philadelphia, Pennsylvania. Complaint ("Compl.") at 4. Following his arrest, plaintiff claims he was placed in a barren cell without access to toilet paper, blanket, mattress, or hygiene products. Id. at 6. The temperature in the cell was so cold that plaintiff became dizzy and disoriented and lost consciousness. Id. Plaintiff alleges he was then transported in a van packed with eleven other arrestees. Id. at 7. The temperature in the van was so hot that plaintiff pleaded with the driver to take him to a medical facility because plaintiff felt sick. Id. The driver stated that he would be making no stops until they reached York County Prison. Id.

Shortly thereafter, plaintiff claims that he vomited and lost consciousness. Id. When he awoke he was in a hospital. Id. Plaintiff states that he was registered at the hospital under the name "Akhmal Hussain." Id. at 8. That same day he was transported to Berks County Prison. Id. On September 5, 2003, plaintiff alleges an immigration judge determined that plaintiff was a United States national, in accordance with this Court's earlier decision. Id. at 9. The immigration judge terminated the removal proceeding. Id., Exhibit ("Ex.") 8.

On July 1, 2004, based on the above facts, plaintiff filed a claim for damages with the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security ("DHS"). Plaintiff's Reply Brief to the Government's Dismissal Motion, Ex. L. Plaintiff claimed personal injury damages in the amount of $345,000. Id. DHS responded to plaintiff's claim on August 9, 2004, requesting the following information in order to process the claim: (1) plaintiff's social security number; (2) a written report from an attending physician detailing his injuries and treatment; (3) itemized bills for plaintiff's medical expenses; (4) if there was to be future treatment for the injury, the expected expenses for such treatment; (5) a statement of how plaintiff calculated his damages; and (7) documentation that Billy G. Asemani was the same person as Ghafour Asemani, the individual determined by this Court to be a United States national. Id., Ex. M. Plaintiff responded to DHS's letter on August 12, 2004, but did not supply all of the requested information. Id., Ex. N.

Plaintiff then filed the present court action on October 22, 2004. DHS denied plaintiff's claim on December 27, 2004. Id., Ex. P. Standard of Review

In ruling on a motion to dismiss, the Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 761 (D.C. Cir. 1997). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). "Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Swierkiewicz v. Sorema, 534 U.S. 506, 515 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

Plaintiff bears the burden of persuasion to establish the Court's subject matter jurisdiction by a preponderance of the evidence. Pitney Bowles, Inc. v. United States Postal Serv., 27 F.Supp. 2d 15, 18 (D.D.C. 1998). In evaluating a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may consider material outside the pleadings. Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); Gabriel v. Corrections Corp. of America, 211 F.Supp. 2d 132, 137 n. 6 (D.D.C. 2002).


Plaintiff's claim seeks monetary compensation for the alleged negligence of federal government employees. The FTCA is the exclusive remedy for tort claims arising from the actions of federal government agencies or employees. See 28 U.S.C. 2679; see also Simpkins v. District of Columbia Government, 108 F.3d 366, 371 (D.C. Cir. 1997). Defendant moves for dismissal for lack of subject matter jurisdiction on the ground that plaintiff did not exhaust his administrative remedies prior to filing the complaint in this case.

The FTCA provides that "[a]n action shall not be instituted upon a claim against the United States . . . unless the complainant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing . . ." 28 U.S.C. § 2765(a). The failure of the agency to reach a final disposition of the claim within six months of its filing is equivalent to a denial of the claim. Id.

Exhaustion of administrative remedies is a jurisdictional prerequisite to initiating an action under the FTCA. Jackson v. United States, 730 F.2d 808, 809 (D.C. Cir. 1984); Reynolds El v. Husk, 273 F.Supp.2d 11, 13 (D.D.C. 2002). This requirement cannot be waived. See Bernard v. U.S. Dep't of Justice, ___ F.Supp.2d ___, 2005 WL 724562 at *8 (D.D.C. March 30, 2005). Moreover, compliance with the provisions of the FTCA cannot be avoided by prematurely filing a court action. The exhaustion requirement is not satisfied when the plaintiff files a claim with the agency and files a complaint in court prior to the agency's rejection of the claim. McNeil v. United States, 508 U.S. 106, 112 (1980). Where a plaintiff files suit prior to final action by the agency, the proper remedy is dismissal of the case. See id. at 113.

The undisputed facts in this case, outlined in documents presented by plaintiff himself, are that plaintiff filed his FTCA claim in July, 2004. Plaintiff filed this action in October 2004 and the agency reached a final decision in December, 2004. Thus, this action was filed prior to the exhaustion of administrative remedies. The fact that plaintiff is proceeding pro se does not excuse the failure to satisfy the statutory requirements. See McNeil, 508 U.S. at 113. Conclusion

Because plaintiff did not exhaust his administrative remedies prior to filing suit, the Court will grant defendant's motion and dismiss the case without prejudice for lack of subject matter jurisdiction. A separate Order accompanies this Memorandum Opinion.