Davis v. Wernick ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DONOVAN DAVIS, JR.,
Plaintiff,
v. Case No. 19-cv-3327 (CRC)
EPHRAIM WERNICK,
Defendant.
MEMORANDUM OPINION
Federal inmate Donovan Davis, Jr., proceeding pro se, has sued former Assistant United
States Attorney Eprhaim Wernick for allegedly ordering the destruction of a laptop computer
belonging to Davis following the conclusion of Davis’s criminal fraud prosecution. Davis
alleges that Wernick’s actions deprived him of property in violation of the Due Process Clause of
the Fifth Amendment and related Constitutional provisions. He seeks monetary damages.
Wernick moves to dismiss the complaint, arguing that Davis has stated neither a recognized
Bivens action nor, in the alternative, a viable tort claim. The Court agrees and will grant the
motion.
I. Background
The Court draws the following background from Mr. Davis’s November 2019 complaint
unless otherwise noted. Mr. Wernick presumably contests many of the allegations.
A jury convicted Davis of federal fraud offenses in 2015 and he is currently serving a
lengthy prison sentence. See Davis v. Federal Bureau of Investigation, No. 18-cv-0086, 2019
WL 2870729, at *1 (D.D.C. July 3, 2019) (Cooper, J.); Compl. at 1. Davis alleges that in 2008
he relinquished a personal laptop to the United States Secret Service. Compl. at 2. That laptop
purportedly contained “trade secrets, personal images, and intellectual property” as well as “data
[which] showed that” former AUSA Wernick “and others conspired to deceive a federal district
court” during the course of Davis’s prosecution. Compl. at 2, 4. In the ensuing years, the laptop
remained in the custody of the Secret Service and was never searched or returned to Davis.
Compl. at 3. Davis maintains that the Secret Service was instructed not to dispose of the laptop
while the direct appeals of his conviction were still pending. Compl. at 4. Wernick nevertheless
ordered the destruction of the laptop in 2017, according to Davis, “in order to conceal Mr.
Wernick’s participation in obstructing justice.” Compl. at 4.
Davis contends that Wernick’s direction to destroy the laptop constituted a deprivation of
property without due process of law in violation of the Fifth Amendment of the United States
Constitution. Compl. at 5–6. 1 Davis requests “actual, compensatory, and consequential
damages” and claims that the “cost of recovering and reproducing the destroyed property
exceeds $100,000.” Compl. at 6–7. Wernick moves to dismiss the case under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted.
II. Legal Standards
In order to survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is plausible on its face. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
1
The complaint’s section labeled “Constitutional Duty of Care Claim Against Ephraim
Wernick” alleges that “Mr. Wernick had a duty to ensure Mr. Davis’s property was returned
without damage” which was violated when the laptop was destroyed. Compl. at 7. The same is
true of the complaint’s section labeled “Just Compensation Claim Against Ephraim Wernick,”
which states that “Mr. Wernick intentionally destroyed Mr. Davis’s personal property” in a
manner which “prevented Mr. Davis from availing himself of the Constitution’s just
compensation provisions.” Compl. at 6–7. As these claims assert essentially the same legal
theory as Davis’s due process claim (and rest on the same implied cause of action under the
Constitution), the Court will address them in tandem.
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deciding such a motion, the Court is limited to considering the facts alleged in the complaint, any
documents attached to or incorporated in the complaint, matters of which a court may take
judicial notice, and matters of public record. See Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir.
2004); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).
III. Analysis
A. Potential Bivens Claim
Davis seeks damages against a federal officer for an alleged violation of a constitutional
right and his claims do not arise out of any cause of action previously authorized by Congress.
As a result, the claims must rest, if at all, on an implied constitutional cause of action such as that
recognized by the Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388(1971). See K.O. v. U.S. Immigration and Customs Enforcement, 468 F. Supp. 3d 350, 363
(D.D.C. 2020). And, because the Supreme Court has not recognized an implied cause of action
against an individual federal officer for damages due to destruction of property in violation of the
Due Process Clause of the Fifth Amendment, Davis’s claims must satisfy the standards the
Supreme Court outlined in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), for the recognition of new
implied constitutional causes of action for damages.
Under Ziglar, 137 S.Ct. at 1859–60, a plaintiff seeking recognition of a new implied
cause of action for damages under the Constitution must meet a demanding two-part test. First,
courts inquire as to whether the case “presents a new Bivens context,” which requires
determining whether the circumstances of the case differ in a “meaningful way” from “previous
Bivens cases decided by” the Supreme Court. Id. Those differences can consist of a difference
in “the constitutional right at issue.” Id. at 1860. If the case presents a new context, then the
court asks whether any “special factors counsel[] hesitation” against recognizing the cause of
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action. Id. at 1857 (internal quotation marks and citation omitted). This second “inquiry must
concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a damages action to proceed.” Id. at
1857–58. In applying this test, Ziglar emphasized that recognizing new constitutional implied
causes of action was a “disfavored judicial activity.” Id. at 1857 (internal quotation marks and
citation omitted).
As explained below, Davis cannot overcome this high bar for recognition of his claims.
Nor can he salvage his claims by recasting them as torts. The Court will therefore grant
Wernick’s motion to dismiss.
1. New context
There can be no question that Davis’s assertion of an implied cause of action based on an
alleged deprivation of property in violation of the Due Process Clause of the Fifth Amendment
presents a “new context” under Ziglar, 137 S.Ct. at 1859–60. As Ziglar explained, a claim
presents a new context when it raises a constitutional challenge that differs from previous Bivens
cases. Id. The three Bivens cases the Court referenced––Bivens itself, Carlson v. Green, 446
U.S. 14, 17 (1980), and Davis v. Passman, 442 U.S. 228, 248–49 (1979)––concerned,
respectively, the Fourth Amendment, the Eighth Amendment, and a due process claim alleging
gender discrimination under the Fifth Amendment. Id. at 1854–55. The Supreme Court has not
previously recognized an implied cause of action for deprivations of property under the Fifth
Amendment. See id. at 1855 (noting that “these three cases . . . represent the only instances in
which the Court has approved of an implied damages remedy under the Constitution itself”).
Accordingly, Davis’s claims present a “new [] context” requiring the Court to consider if there
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are “special factors counsel[ling] hesitation” against recognizing an implied cause of action here.
Id. at 1859–60. There are.
2. Special factors counselling hesitation
Although the Supreme Court “has not defined the phrase ‘special factors counselling
hesitation,’” it has explained that “the inquiry must concentrate on whether the Judiciary is well
suited, absent congressional action or instruction, to consider and weigh the costs and benefits of
allowing a damages action to proceed.” Ziglar, 137 S.Ct. at 1857–58. “[T]o be a special factor
counselling hesitation, a factor must cause a court to hesitate before answering that question in
the affirmative.” Id. at 1858 (internal quotation marks omitted). One special factor singled out
by the Court in Ziglar was the presence of “an alternative remedial structure . . . for protecting
the injured party’s interest.” Id. (cleaned up). Here, the presence of at least two alternative
remedial structures which could vindicate Davis’s interest in his property provide just the sort of
special factors counselling against recognizing a new Bivens action based on a property
deprivation under the Fifth Amendment.
First, plaintiffs seeking damages for the destruction or taking of property under the Fifth
Amendment may bring a claim under the Tucker Act. See 28 U.S.C. § 1491; Maine Cmty.
Health Options v. United States, 140 S. Ct. 1308, 1328 n.12 (2020) (discussing implied causes of
action and noting that “[a]lthough there is no express cause of action under the [Fifth
Amendment’s] Takings Clause, aggrieved owners can sue through the Tucker Act under our case
law” (citations omitted)); Monarch Ins. Co. of Ohio v. D.C., 353 F. Supp. 1249, 1252–53
(D.D.C. 1973) aff’d sub nom. Aetna Ins. Co. v. United States, 497 F.2d 683 (D.C. Cir. 1974)
(noting that “if plaintiff's claim of denial of due process arises solely from its claim of a taking
without just compensation, plaintiff has a recognized cause of action under the Tucker Act . . .”)
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(internal quotation marks omitted). Although such a suit must be brought against the United
States, rather than an individual officer, see, e.g., Van Drasek v. Lehman, 762 F.2d 1065, 1069–
70 (D.C. Cir. 1985), it suffices for the special factors analysis that the alternative remedy in
question vindicate the plaintiff’s interest, not that it render a particular defendant liable for
damages, see Ziglar, 137 S.Ct. at 1858, 1862–63.
Ziglar further observed that the presence of a more limited alternative remedial scheme
may provide a negative inference as to Congress’s intent to create a damages action against a
federal officer, as the balance of policy considerations in creating such an action is for Congress
to properly strike. See id. at 1865 (noting, in the context of prisoner abuse claims, that
“legislative action suggesting that Congress does not want a damages remedy is itself a factor
counselling hesitation”). Congress’s adoption of a more particular form of relief for property
deprivations thus counsels against implying a damages remedy. See id.; Wilson v. Libby, 535
F.3d 697, 705–06 (D.C. Cir 2008) (observing that “[a] remedial statute need not provide full
relief to the plaintiff to qualify as a special factor”); Kizas v. Webster, 707 F.2d 524, 534 n.42
(D.C. Cir. 1983) (noting that whether a district court properly implied a “Bivens-type action for
damages directly from the [F]ifth [A]mendment’s takings clause” turned in part on the Tucker
Act’s availability as an alternative remedy).
Numerous district courts considering similar claims have found the Tucker Act to provide
a sufficient alternative remedial structure to defeat recognition of a new Bivens remedy for a
claimed deprivation of property. See Estate of Redd v. Love, Civ. A. No. 11-0478, 2012 WL
2120446, at *7 (D. Utah June 11, 2012) (finding no Bivens remedy for Fifth Amendment takings
claim arising out of seizure of certain personal property where Tucker Act “provides a statutorily
defined mechanism . . . for just compensation for public takings”); Munns v. Clinton, 822 F.
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Supp. 2d 1048, 1080 (E.D. Cal. 2011) (stating that “in light of the availability of alternative
remedies [in the form of a Tucker Act claim] to protect Plaintiffs’ interests, their [Bivens-based]
Takings claim against the individual Defendants must fail”); Reunion, Inc. v. FAA, 719 F. Supp.
2d 700, 710 (S.D. Miss. 2010) (“[N]umerous cases have recognized that a plaintiff does not have
an implied cause of action under Bivens for a Fifth Amendment takings claim because there is an
express cause of action for such a claim under the Tucker Act” (citations omitted));
Anoushiravani v. Fishel, No. 04-212, 2004 WL 1630240, at *9 (D. Or. July 19, 2004) overruled
on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009) (“[B]ecause the Tucker Act, in
coordination with the Fifth Amendment, provides an express remedy for plaintiff’s takings claim
against defendant . . . the court does not imply a cause of action for such claims under Bivens.”).
The Supreme Court has, in dicta, likewise pointed to the availability of the Tucker Act to
vindicate the interests of “aggrieved owners” when discussing implied causes of action (and the
lack of an “express cause of action”) under the Fifth Amendment’s Takings Clause. See Maine
Cmty. Health Options, 140 S. Ct. at 1328 n.12.
Second, plaintiffs like Davis whose property is seized for “use[] in a [federal] criminal
prosecution” may file a motion for its return under Federal Rule of Criminal Procedure 41(g).
See United States v. Price, 914 F.2d 1507, 1511 (D.C. Cir. 1990) (internal quotation marks
omitted) (citing Fed. R. Crim. P. 41(g)). Indeed, Davis has previously availed himself of this
mechanism, though not with respect to the laptop at issue here. See United States v. Davis, 789
F. App’x. 105, 106–108 (11th Cir. 2019) (seeking the return of seized hard drives). And a court
in this District has found that the availability of a virtually identical District of Columbia
criminal rule foreclosed recognition of new Bivens cause of action based on the government’s
retention of the plaintiff’s personal property. Leyland v. Edwards, 797 F. Supp. 2d 7, 10–11
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(D.D.C. 2011); see id. at 10 n.5 (noting that “the D.C. Superior Court generally conducts its
business according to the Federal Rules of Criminal Procedure . . . and Superior Court Rule
41(g) substantially conforms to Federal Rule 41(g)” (citation omitted)). The same holds for the
alleged destruction of property that roots Davis’s claims. It matters not that such an avenue may
be no longer available to Davis (assuming the laptop was destroyed as he claims). Congress’s
choice to authorize a limited mechanism which vindicates a plaintiff’s interest in contesting
deprivations of his property under only certain circumstances is, as explained above, strong
evidence against the implication of a new Bivens action here. See Ziglar, 137 S.Ct. at 1865;
Wilson, 535 F.3d at 705–06.
3. Davis’s counterarguments
Davis’s responses to Wernick’s Bivens arguments are unavailing. He first argues that
Bivens is irrelevant to his claims because, in his view, Wernick was not operating “in his official
capacity” when he allegedly authorized the destruction of the laptop. Pl.’s Resp. at 7. Davis
does not explain why an allegation of unofficial conduct would place his claims outside Bivens’
ambit. 2 To be sure, the D.C. Circuit has held that Bivens claims brought against an individual in
his official capacity are typically barred by the doctrine of sovereign immunity. See Clark v.
Library of Cong., 750 F.2d 89, 103 (D.C. Cir. 1984) (“If a plaintiff seeks to recover damages
from a defendant in his personal, individual capacity then there is no sovereign immunity bar”
but “[s]overeign immunity . . . does bar suits for money damages against officials in their official
capacity absent a specific waiver by the government.”); Kim v. United States, 632 F.3d 713, 715
(D.C. Cir. 2011) (holding that “no Bivens claim is available against [IRS employees] in their
2
To the extent this argument is more properly construed as going to “scope of
employment,” it is addressed below. See supra at III.B.
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official capacities . . . .”); Perkins v. Ashcroft, 275 F. App'x. 17, 17–18 (D.C. Cir. 2008) (“[T]o
the extent appellant was attempting to sue the former Attorney General in his official capacity,
the action is barred by sovereign immunity . . . .” (citation omitted)). The corollary of this
holding is simply that a Bivens claim is typically only available against individuals in their
personal capacity. See Loumiet v. United States, 828 F.3d 935, 945 (D.C. Cir. 2016). Thus,
even if Davis is correct that Wernick was not operating in his official capacity, this would not
move Davis’s claims beyond Bivens territory. And, as the Court has held above, the Court will
not imply a Bivens-style action here.
Davis also contends that, even if the Bivens framework applies, the court should adopt
the Seventh Circuit’s reasoning in Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1988), which
Davis says recognized a Bivens action for destruction of property. See Pl.’s Resp. at 7. But
Wilkins did not involve a claim of property destruction. Wilkins, 872 F.2d at 191–92. The
challenge there, rather, was to the plaintiff’s alleged coercive interrogation under the Fourth and
Fifth Amendments. Id. at 191–93. Wilkins was also decided before the Supreme Court’s
clarification of the “new context” and “special factors” analysis discussed above. Compare id. at
194–95, with Ziglar, 137 S.Ct. at 1859–60. Thus, whatever continuing vitality Wilkins has, it
does not control here.
B. Potential tort claims
Perhaps seeking to avoid the obstacles to implying a new Bivens-style cause of action,
Davis appears at points to argue that he is suing Wernick in tort. See, e.g., Pl.’s Resp. at 2. The
Court will entertain Davis’s recasting of his claims in light of his pro se status even though it
conflicts with the clear terms of the complaint, which alleges constitutional violations
exclusively. See Compl. at 5–8 (outlining Davis’s claims as a “Due Process Claim[] Against
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Ephraim Wernick,” a “Just Compensation Claim Against Ephraim Wernick,” and a
“Constitutional Duty of Care Claim Against Ephraim Wernick,” and identifying the issue in each
claim as the “deprivation of property without due process of law,” “preventing Mr. Davis from
availing himself of the Constitution’s just compensation provisions [] by causing the property to
vanish,” and a violation of “duty to ensure Mr. Davis’s property was returned without damage”).
Assessing Davis’s putative tort claims first requires determining whether former AUSA
Wernick’s alleged conduct was undertaken within the scope of his employment. If it was, then
any tort claims against Wernick himself would be barred because “[f]ederal employees [have]
absolute immunity from common-law tort claims arising out of acts they undertake in the course
of their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). The United States would
instead become the defendant and the claim could proceed under the Federal Tort Claims Act.
See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419–20 (1995). That process is triggered
by the submission of a certification by the Attorney General under the Federal Employees
Liability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act)
that “the employee ‘was acting within the scope of his office or employment at the time of the
incident out of which the claim arose. . . .’” Id. at 420 (quoting 28 U.S.C. § 2679(d)(1)). “Upon
certification, the employee is dismissed from the action and the United States is substituted as
defendant.” Id.Taking no chances, the government has submitted such a certification here. See Def.’s
Motion to Dismiss Ex. 1 at 1. This certification is prima facie evidence that the employee was
acting within the scope of his employment when the alleged tort took place. Wuterich v. Murtha,
562 F.3d 375, 381 (D.C. Cir. 2009). The burden thus falls on the plaintiff to rebut this evidence.
Id. State law provides the relevant legal rule regarding scope of employment, id. at 383, and the
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D.C. Circuit has noted that the “scope-of-employment test [under District of Columbia law]” is
applied “very expansively” in a manner “akin to asking whether the defendant merely was on
duty or on the job when committing the alleged tort,” Jacobs v. Vrobel, 724 F.3d 217, 221 (D.C.
Cir. 2013) (quoting Harbury v. Hayden, 522 F.3d 413, 422 n.4 (D.C. Cir. 2008)) (internal
quotation marks omitted).
Davis cannot rebut the government’s showing here. The District of Columbia follows the
Second Restatement of Agency in delineating scope of employment:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is
not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind
from that authorized, far beyond the authorized time or space limits, or too little actuated
by a purpose to serve the master.
Schecter v. Merchants Home Delivery, Inc., 892 A.2d 415, 427–28 (D.C. 2006) (citing
Brown v. Argenbright Sec., Inc., 782 A.2d 752, 758 n.8 (D.C. 2001) and Restatement
(Second) of Agency (1958) § 228)).
Davis focuses on the first and third factors in the Restatement test, arguing that Wernick
performed acts of a kind other than those he was employed to perform and acted solely for his
own purposes rather than his employer’s. See Pl.’s Resp. at 2.
Beginning with the third factor, the D.C. Court of Appeals takes an expansive approach
as to whether the act in question is “actuated, at least in part, by a purpose to serve the master,”
in some cases finding the factor satisfied where employees committed violent assaults on
customers because the employees could not be said to have acted “solely” on the basis of their
private interests. See Weinberg v. Johnson, 518 A.2d 985, 990–92 (D.C. 1986) (reviewing D.C.
Court of Appeals case law and noting that “job-related controvers[ies]” of the sort that “aris[e]
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out of [a] dispute that was originally undertaken on the employer’s behalf” suffice to satisfy the
requirement that an act be “actuated, at least in part, by a purpose to serve the master” (internal
quotations omitted)). Accepting the allegations in the complaint as true, Wernick’s disposal of
the laptop arose “out of [a] dispute that was originally undertaken on the employer’s behalf,”
namely Wernick’s prosecution of Davis. Id. (internal quotation marks omitted).
Davis has submitted a Supplemental Reply in an effort to rebut this showing, but it
actually supports the conclusion that Wernick was acting within the scope of his employment.
The Supplemental Reply cites records indicating that Wernick (and another AUSA) advised a
Secret Service agent in a 2017 phone call “that the case could be closed and evidence disposed.”
See Pl.’s Supp. Reply at 1. The presence of another AUSA and a Secret Service agent on the call
only bolsters the conclusion that Wernick was acting within the normal scope of his
employment. See id. So does the content of the call. After all, conversations about case
management and the disposition of evidence are the workaday reality of a federal prosecutor’s
job.
Davis’s take on the first factor of the Restatement test––whether the conduct in question
was of a kind the servant was employed to perform––fares no better. The inquiry here focuses
not on the alleged tortious act but on whether the “underlying dispute or controversy” was the
“kind of conduct [Wernick] was employed to perform.” Council on American Islamic Relations
v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) (applying District of Columbia scope of
employment law and holding that whether defamation alleged to have occurred during a
telephone conversation was within the scope of employment turned on “whether that telephone
conversation––not the allegedly defamatory sentence––was the kind of conduct [the defendant]
was employed to perform.”) (internal quotation marks and citation omitted). Wernick was, as
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Davis concedes, empowered in the normal course to dispose of evidence from trial. See Pl.’s
Resp. at 2 (noting that “Mr. Wernick might generally have authority to dispose of evidence from
trial”). This brings him well within the requirement that the conduct be “of the kind he is
employed to perform.” See Restatement (Second) of Agency (1958) § 228(1)(a); Council on
American Islamic Relations, 444 F.3d at 664 (holding that a congressman’s “[s]peaking to the
press during regular work hours in response to a reporter’s inquiry falls within the scope of a
congressman’s authorized duties” (internal quotation marks and citations omitted)).
The Court thus finds that Davis has failed to rebut the prima facie showing that Wernick
was operating within his scope of employment when the actions alleged in the complaint took
place. As such, the FTCA applies to Davis’s tort claims. See Gutierrez de Martinez, 515 U.S. at419–20.
Applying the FTCA forecloses any tort claim Davis seeks to bring. Plaintiffs cannot
bring an FTCA suit “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.” 28 U.S.C.A. § 2675(a). This provision is jurisdictional. See
Atherton v. United States, 193 F. Supp. 3d 2, 4 (D.D.C. 2016) (Cooper, J.) (“[S]ince ‘compliance
with [28 U.S.C.] § 2675(a)’s presentment requirement is a jurisdictional precondition to filing an
FTCA suit in federal district court,’ . . . subject-matter jurisdiction would not exist in an FTCA
suit filed prematurely.” (quoting Mader v. United States, 654 F.3d 794, 805 (8th Cir. 2011)).
Although Wernick has not moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), the
Court may dismiss a complaint for a lack of subject matter jurisdiction sua sponte. Hurt v. U.S.
Court of Appeals for D.C. Circuit Banc, 264 F. App'x 1 (D.C. Cir. 2008); see Odemns v. Wal-
Mart Stores, Inc., No. 14-CV-1790, 2015 WL 2120634, at *1 (D.D.C. May 6, 2015) (“It is clear
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beyond cavil that a court may act sua sponte and dismiss claims pursuant to [FRCP] 12(b)(1) for
lack of subject matter jurisdiction.”). In deciding jurisdictional issues under Rule 12(b)(1), as
with motions under Rule 12(b)(6), courts “assume[] the truth of all well-pleaded factual
allegations in the complaint and construe[] reasonable inferences from those allegations in the
plaintiff's favor, but [are] not required to accept the plaintiff's legal conclusions as correct.”
Wiggins v. Brennan, 308 F. Supp. 3d 274, 276 (D.D.C. 2018) (Cooper, J.). However, when
deciding questions under Rule 12(b)(1), the Court may look to materials outside the pleadings.
Id.Because Davis has not submitted any tort claim to the “appropriate Federal agency,” he
has not complied with the jurisdictional requirements imposed by 28 U.S.C.A. § 2675(a).
Atherton, 193 F. Supp. 3d at 4. As a result, to the extent that Davis’s complaint can be read to
state a tort claim, the Court will dismiss the complaint for lack of subject-matter jurisdiction.
IV. Conclusion
For the foregoing reasons, the Court will dismiss the complaint and close this case. An
accompanying Order shall follow.
CHRISTOPHER R. COOPER
United States District Judge
Date: January 29, 2021
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