Dickey v. United States of America , 174 F. Supp. 3d 366 ( 2016 )


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  •                     UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ______________________________
    )
    MICHAEL DICKEY,                )
    )
    Plaintiff,      )
    ) Civil Action No.15-0577
    ) (EGS)
    v.                    )
    )
    UNITED STATES OF               )
    AMERICA, ET AL.,                )
    )
    Defendants.     )
    ______________________________)
    MEMORANDUM OPINION
    On July 1, 2013, Plaintiff Michael Dickey (“Mr. Dickey”),
    an employee of the U.S. Department of Transportation (“DOT”),
    drove his car into the DOT’s parking garage at 1200 New Jersey
    Ave. SE, Washington, D.C. Compl., Docket No. 1 at ¶ 6. Mr.
    Dickey alleges that a bicyclist was in his blind spot as he
    pulled into his parking spot. Id. at ¶ 7. The cyclist was forced
    to stop abruptly. Id. Mr. Dickey and the cyclist engaged in an
    altercation, causing Defendant Kurt Alexander (“Officer
    Alexander”), a Federal Protective Services officer, and his
    partner, Gary Brzozwald, an inspector, to arrive at the scene.
    Id. at ¶ 8. After interviews with the altercating parties, Mr.
    Dickey was placed under arrest for simple assault. Id. ¶ 9-12.
    During his arrest, Mr. Dickey alleges that Officer Alexander
    pushed and pulled him, tearing one of the belt loops on his
    1
    pants. Id. ¶ 12. Mr. Dickey further alleges that Officer
    Alexander “used his fingers to manipulate and move Mr. Dickey’s
    genitals and penis . . . .” Id. ¶ 13. Mr. Dickey alleges that
    his genitals and penis were “fondled” six times by Officer
    Alexander during his search of Mr. Dickey incident to arrest,
    three times when Officer Alexander used kevlar gloves, and three
    times when Officer Alexander used latex gloves. Id. at ¶ 21-23.
    Mr. Dickey alleges two counts against the United States and
    Officer Alexander in his individual capacity: excessive force
    and unreasonable search and seizure in violation of the Fourth
    Amendment (Count I); and assault, battery and intentional
    infliction of emotional distress under the Federal Tort Claims
    Act (“FTCA”) (Count II). Id. at ¶¶ 24-39. Defendants move to
    dismiss Mr. Dickey’s complaint for lack of subject matter
    jurisdiction and failure to state a claim. Defs.’ Mem. Supp.
    Mot. Dismiss, Docket No. 7-1. 1 Upon consideration of the motion,
    the response and reply thereto, the applicable law, and the
    entire record, Defendants’ Motion is GRANTED in part and DENIED
    1 The basis for Defendants’ Motion to Dismiss for Lack of Subject
    Matter Jurisdiction under Rule 12(b)(1) is that “the search of
    Plaintiff during his arrest [was] a legally authorized touching
    and the Supreme Court has determined that a search incident to
    arrest is an authorized warrantless search under the Fourth
    Amendment and is reasonable under that same Amendment.” Defs.’
    Mem. Supp., Docket No. 7 at 4. Because this argument goes to the
    merits of Mr. Dickey’s claims, the Court’s analysis is limited
    to Defendants Motion to Dismiss for failure to state a claim
    under Rule 12(b)(6).
    2
    in part.
    I. Standard of Review
    A motion to dismiss under Federal Rule of Civil Procedure
    12(b)(6) tests the legal sufficiency of a complaint. Browning v.
    Clinton, 
    292 F.3d 235
    , 242 (D.C. Cir. 2002). The pleading must
    contain a “short and plain statement of the claim showing that
    the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 677-78 (2009). The pleading
    standard does not require detailed factual allegations, but
    should be “more than an unadorned, the-defendant-unlawfully-
    harmed-me accusation.” 
    Id. at 678
    . Naked assertions without
    factual enhancements or formulaic recitations of the elements of
    a cause of action will not suffice. 
    Id.
     Rather, to survive a
    motion to dismiss, a complaint “must contain sufficient factual
    matter . . . to ‘state a claim to relief that is plausible on
    its face.’” 
    Id.
     Plausibility entails that the plaintiff has pled
    factual content that is not merely consistent with liability but
    allows the Court to draw a reasonable inference that the
    defendant is liable for the alleged misconduct. 
    Id.
    In considering a 12(b)(6) motion, the Court should liberally
    view the complaint in the plaintiff’s favor, accepting all
    factual allegations as true, and giving the plaintiff the
    benefit of all inferences that can be drawn therefrom. Redding
    3
    v. Edwards, 
    569 F. Supp. 2d 129
    , 131 (D.D.C. 2008) (citing Kowal
    v. MCI Commc’ns Corp., 
    16 F.3d 1271
    , 1276 (D.C. Cir. 1994)).
    II.   Analysis
    A. The Qualified Immunity Doctrine
    A plaintiff may bring suit against federal officials in
    their individual capacity for alleged constitutional violations.
    Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
    
    403 U.S. 388
    , 389 (1971). However, qualified immunity protects
    government officials from civil liability where their conduct
    does not violate “clearly established statutory or
    constitutional rights of which a reasonable person would have
    known.” Int’l Action Ctr. v. United States, 
    365 F.3d 20
    , 24
    (D.C. Cir. 2004). At the motion to dismiss stage, a plaintiff
    must allege sufficient facts to establish that the defendants
    are not entitled to qualified immunity. Patterson v. United
    States, 
    999 F. Supp. 2d 300
    , 311 (D.D.C. 2013) (internal
    citation omitted). The defendant bears the burden of pleading
    and proving qualified immunity. 
    Id.
    As established by the Supreme Court, “the two pertinent
    questions in determining whether qualified immunity applies are
    (1) whether a constitutional right would have been violated on
    the facts alleged; and (2) whether the right was clearly
    established at the time of the violation.” Shaw v. District of
    Columbia, Case No. 12-0538, 
    2013 WL 1943032
    , at *4 (D.D.C. May
    4
    13, 2013) (quoting Saucier v. Katz, 
    533 U.S. 194
     at 201 (2001)).
    In sum, the facts alleged by a plaintiff must establish that the
    official violated a right protected by the constitution, and
    precedent must be sufficiently well established that a
    reasonable officer would have understood prior to acting that
    his conduct violates that right.
    Here, both of Mr. Dickey’s alleged constitutional
    violations——unreasonable search and excessive force——impinge on
    the Fourth Amendment, which guarantees the right of the people
    “to be secure in their persons, houses, papers, and effects,
    against unreasonable searches and seizures . . . .” U.S. Const.
    amend. IV. Each alleged claim will be analyzed below.
    i.   The facts alleged by Mr. Dickey state a claim for
    an unreasonable search in violation of his
    clearly established rights under the Fourth
    Amendment.
    Officer Alexander argues that the search of Mr. Dickey was
    permitted under the Fourth Amendment because it was incident to
    his arrest. Defs.’ Mem. Supp., Docket No. 7 at 8-9. Mr. Dickey
    argues that the circumstances of his arrest did not provide
    Officer Alexander any basis to “perpetrate a sexual assault on
    him” by manipulating his penis and genitalia six times. Pl.’s
    Mem. Opp., Docket No. 9 at 8.
    The Fourth Amendment generally requires that law
    5
    enforcement have “probable cause for conducting a search.” U.S.
    v. Scott, 
    987 A.2d 1180
    , 1195 (D.C. Cir. 2010). However, a
    critical exception to this general rule are searches conducted
    incident to arrest. 
    Id.
     As explained by the Supreme Court:
    The authority to search the person incident to a lawful
    custodial arrest, while based upon the need to disarm
    and to discover evidence, does not depend on what a court
    may later decide was the probability in a particular
    arrest situation that weapons or evidence would in fact
    be found upon the person of the suspect. A custodial
    arrest of a suspect based on probable cause is a
    reasonable intrusion under the Fourth Amendment; that
    intrusion being lawful, a search incident to the arrest
    requires no additional justification.
    United States v. Robinson, 
    414 U.S. 218
    , 235 (1973). Therefore,
    reasonable suspicion that Mr. Dickey possessed a weapon or
    illicit substances on his person was not necessary because
    Officer Alexander had probable cause to arrest and search Mr.
    Dickey for simple assault. See e.g. Pl.’s Mem. Opp., Docket No.
    9 at 4, 8 and 10.
    Nevertheless, where a search incident to arrest is
    unusually intrusive, the search may be deemed unreasonable and
    therefore in violation of the Fourth Amendment. WAYNE R. LAFAVE,
    SEARCH   AND   SEIZURE, A TREATISE   ON THE   FOURTH AMENDMENT 145, § 5.2(c)
    (West’s Criminal Practice Series, 6th ed. 2010) (hereinafter
    LAFAVE). In Bell v. Wolfish, the Supreme Court established an
    analytical framework to determine the reasonableness of a
    sexually intrusive search, holding courts must balance “the
    6
    scope of the particular intrusion, the manner in which it is
    conducted, the justification for initiating it, and the place in
    which it is conducted.” 
    441 U.S. 520
     at 559 (1979); see also
    Bame v. D.C., 
    637 F.3d 380
    , 387 (D.C. Cir. 2011) (internal
    citations omitted); see also Grissom v. Dist. of Columbia, 
    853 F. Supp. 2d 118
    , 125 (D.D.C. 2012) (“The “unreasonableness”
    inquiry is a particularized one, taking into account the facts
    and circumstances of the particular case.”) (internal citations
    omitted).
    Under certain circumstances, strip searches have been found
    unreasonable and in violation of the Fourth Amendment. For
    example, in Campbell v. Miller, the Seventh Circuit concluded
    that although a search was permissible, the officer’s decision
    to conduct a strip search of a male suspected of possessing
    marijuana was unreasonable because it was conducted in a
    backyard where his neighbors could view the search. 
    499 F.3d 711
    at 718. The Court concluded that the search was not reasonable
    because it involved “public nudity and exposure of intimate body
    parts.” 
    Id.
     Indeed, courts throughout the country have routinely
    condemned as unreasonable intrusive searches conducted in
    public. See e.g. Amaechi v. West, 
    237 F.3d 356
    , 364 (4th Cir.
    2001) (noting that “we have repeatedly emphasized the necessity
    of conducting a strip search in private” and concluding that
    “[t]he fact that, absent clear justification or exigent
    7
    circumstances, an officer is not allowed to strip an arrestee on
    a public street pursuant to a search incident to arrest
    necessarily means that an officer cannot go even further than
    simply disrobing the arrestee by actually touching and
    penetrating the arrestee’s exposed genitalia on the public
    street.”); Hill v. Bogans, 
    735 F.2d 391
    , 394 (10th Cir. 1984)
    (finding unconstitutional “routine strip searches in a public
    area of persons detained for minor traffic offenses.”).
    Here, Mr. Dickey alleges that the search was unreasonable
    because Officer Alexander “searched and fondled Mr. Dickey’s
    genitals and penis” and “intentionally humiliated Mr. Dickey by
    searching his genital region six (6) separate times while in a
    public parking garage while in the presence of both officers and
    civilian bystanders who worked in the same building where Mr.
    Dickey was employed.” Compl. ¶¶ 31, 33. The facts of this case
    are notably distinguishable from the authority discussed above
    because Mr. Dickey does not allege that he was stripped
    searched. 2 Still, accepting all factual allegations as true and
    2 In his opposition brief, Mr. Dickey argues that Officer
    Alexander’s search was “extremely atypical” and best described
    as a “manual body cavity search.” Pl.’s Mem. Opp. at 2, fn 1.
    Mr. Dickey attempts to overstate his case. As discussed in
    Roberts v. Rhode Island:
    A “strip search,” though an umbrella term, generally
    refers to an inspection of a naked individual, without
    any   scrutiny   of  the    subject's body cavities.   A
    “visual body cavity search”     extends    to     visual
    8
    adopting a liberal view the complaint, the Court cannot conclude
    that Officer Alexander’s search of Mr. Dickey’s was reasonable
    under the Fourth Amendment. Officer Alexander was surely
    entitled to pat Mr. Dickey down before taking him into custody. 3
    However, it is not clear that under the circumstances, searching
    Mr. Dickey a total of six times with two different sets of
    gloves was necessary or reasonable. 4 More importantly, Mr. Dickey
    alleges that his genitalia were fondled in such a way as to
    constitute a “sexual assault.” Compl. 16. Based on these alleged
    facts, Mr. Dickey has stated a claim for an unreasonable search
    inspection   of  the   anal   and   genital   areas.    A
    “manual body cavity search” includes some     degree   of
    touching or probing of body cavities.
    
    175 F. Supp. 2d 176
    , 182, fn 5 (D.R.I. 2000). Therefore, the
    alleged surface touching of genitalia during a pat-down
    search incident to arrest that does not probe any body cavity
    does not constitute a “manual body cavity search.”
    3 In Terry v. Ohio, the Supreme Court noted that a frisk,
    presumably less intrusive than a search incident to arrest,
    includes “a thorough search of the prisoner’s arms and armpits,
    waistline and back, the groin and area about the testicles, and
    the entire surface of the legs down to the feet.” 
    392 U.S. 1
     at
    17, fn 13 (1968) (citing Priar & Martin, Searching and Disarming
    Criminals, 45 J. Crim. L.C. & P.S. 481 (1954)).
    4 Officer Alexander argues that the search was conducted within
    his discretionary duties, and therefore permissible. Defs.’ Mem.
    Supp. at 7. According to the Federal Protective Service (FPS)
    Detention and Arrest Directive which states that a search
    incident to arrest “should be as thorough as circumstances
    allow.” 
    Id.,
     citing FPS Directive 15.5.2.3. Absent discovery
    into the circumstances surrounding Mr. Dickey’s arrest, Officer
    Alexander’s discretionary duty defense is not persuasive.
    9
    under the Fourth Amendment. See Grissom 853 F. Supp. 2d at 125
    (“Although it is a close question . . . the Court cannot find as
    a matter of law that the search was reasonable. If Grissom is
    able to provide evidence supporting her allegations that the
    magnetometer was used to rub her genitals and that the search
    continued after she asked the officers to stop, she might
    succeed in proving that the search was unreasonable under the
    circumstances.”).
    The Court also concludes that, assuming Mr. Dickey’s
    allegations are true, any reasonable officer would have
    understood that, at the time Mr. Dickey was taken in to custody,
    repeatedly fondling an individual’s genitals incident to their
    arrest would constitute a violation of that persons clearly
    established constitutional rights. See e.g. Stewart v. Rouse,
    
    1999 WL 102774
    , *5 (N.D. Ill, Feb. 22, 1999) (denying qualified
    immunity to Officer who allegedly fondled Plaintiff during pat-
    down search incident to arrest because “the parameters of a
    search incident to arrest as an exception to the warrant
    requirement were well-established in 1997” and “objective police
    officers could agree that [aggressive groping, grabbing of groin
    and breasts] exceeded what was permitted by established law.”).
    Defendants argue that “the true test for qualified immunity
    in this case was whether it was clearly established that Officer
    Alexander was prohibited from alleged touching or manipulating
    10
    the Plaintiff’s genitals through multiple layers of clothing . .
    . .” Defs.’ Mem. Reply at 8. Defendants are incorrect. The true
    test for qualified immunity in this case is whether, as Mr.
    Dickey alleges, the law clearly prohibited fondling such that it
    constituted “sexual assault.” Compl. ¶¶ 16-17. It did. See, e.g.
    Anderson v. Cornegjo, 
    199 F.R.D. 228
    , 259 (N.D. Ill. 2000)
    (noting that “no Customs inspector could reasonably believe that
    it could be appropriate to fondle a female traveler’s breasts,
    crotch area, or buttocks, even above her clothes.”)
    Defendants also emphasize that Supreme Court precedent
    establishes that a search of an arrestee will be a “relatively
    extensive exploration of the person.” 
    Id.,
     citing U.S. v. Scott,
    
    987 A. 2d 1180
    , 1195 (D.C. 2010). This often cited language is
    from the Supreme Court’s decision in Robinson, where the Court
    quoted with approval language from Terry. See Terry, 
    392 U.S. at 25
    ; Robinson, 
    414 U.S. at 227
    . Two points deserve emphasis.
    First, the Court in Terry noted that “a thorough search must be
    made of the prisoner’s arms and armpits, waistline and back, the
    groin and area about the testicles, and the entire surface of
    the legs down to the feet.” Terry, 392 at fn. 13. A thorough
    search of the groin area is distinct from the fondling of
    genitalia. To this end, the Court in Robinson also noted that it
    would be willing to find unconstitutional a search that was
    “extreme or patently abusive.” Id. at 477. A search incident to
    11
    arrest that includes fondling alleged to constitute sexual
    assault is “extreme” and “patently abusive.” Put another way, no
    reasonable objective officer would conclude that an “extensive
    exploration” of a person could include fondling and sexual
    assault alleged in this case. For these reasons, Defendants’
    Motion to Dismiss Mr. Dickey’s unreasonable search claim under
    the Fourth Amendment based on qualified immunity is DENIED.
    ii.   The facts alleged by Mr. Dickey do not state a
    claim for excessive force in violation of his
    Fourth Amendment rights.
    Defendants argue that the facts pled by Plaintiff are
    insufficient to state a claim for excessive force. Defs.’ Mem.
    Reply at 3 (“Plaintiff alleges that the illegal forcefulness of
    the arrest is evident from the single ripped belt loop on the
    Plaintiff’s pants. Plaintiff does not allege that this occurred
    because the Inspector was holding onto the belt loop, if the
    loop was hooked on the handcuffs, or if it occurred when he was
    placed in the police car wearing handcuffs, etc.”). Mr. Dickey
    argues that the force used by Officer Alexander started during
    the search of Mr. Dickey incident to his arrest and “escalated
    to include Defendant Alexander breaking off one of Mr. Dickey’s
    belt loops.” Pl.’s Mem. Opp. at 7.
    Determining whether the force used to effect a particular
    seizure is “reasonable” under the Fourth Amendment requires a
    “careful balancing of the nature and quality of the intrusion on
    12
    the individual’s Fourth Amendment interests against the
    countervailing governmental interests at stake.” Graham v.
    Connor, 
    490 U.S. 386
    , 396 (1989) (internal quotations omitted).
    The reasonableness inquiry is an objective one: that is, the
    court must determine whether the officer’s actions were
    “objectively reasonable” in light of the facts and
    circumstances, regardless of any underlying intent or
    motivation. 
    Id.
     Moreover, the Court is mindful that police have
    authority to use “some degree of physical coercion” when
    arresting a suspect, see Graham, 
    490 U.S. at 396
    , and that
    “[n]ot every push or shove, even if it may later seem
    unnecessary in the peace of a judge’s chambers, violates the
    Fourth Amendment.” 
    Id.
     (quoting Johnson v. Glick, 
    481 F.2d 1028
    ,
    1033 (2nd Cir. 1973)).
    In this case, it is alleged that “in the course of
    conducting his arrest, Defendant Alexander forcibly pushed and
    pulled Mr. Dickey, which resulted in the ripping of one of Mr.
    Dickey’s belt loops.” Compl. ¶ 12. Accepting this allegation as
    true and drawing all inferences in Mr. Dickey’s favor, the Court
    concludes Mr. Dickey has failed to allege facts sufficient to
    state a claim for excessive use of force. See e.g. Wasserman v.
    Rodacker, 
    557 F.3d 635
    , 641 (D.C. Cir. 2009) (holding that even
    where plaintiff was not moving or resisting, the arresting
    officer’s action of forcefully pressing upwards on plaintiff’s
    13
    arm before handcuffing him, causing him pain, was not excessive
    force); Rogala v. District of Columbia, 
    161 F.3d 44
    , 54 (D.C.
    Cir. 1999) (concluding that a police officer who grabbed the
    arrestee by the arm and pulled her out of the vehicle’s
    passenger seat used a reasonable level of force and therefore
    committed no constitutional violation); Martin v. Malhoyt, 
    830 F.2d 237
     (D.C. Cir. 1987) (finding that the arresting officer
    did not use excessive force by allegedly grabbing a driver by
    the waist, throwing him back into the driver’s seat and slamming
    door on his legs); compare with Rudder v. Williams, 
    666 F.3d 790
    , 795 (D.C. Cir. 2012) (holding that plaintiffs’ allegation
    that an officer’s unprovoked use of a baton against children
    aged five and 15 constituted a “degree of force unjustified by
    the circumstances.”).
    Because Mr. Dickey only alleges that his belt loop was torn
    due to what he characterizes as “pushing” and “pulling” by
    Officer Alexander, he does not allege facts sufficient to state
    a plausible claim for excessive use of force in violation of his
    Fourth Amendment rights. As such, Defendants’ Motion to Dismiss
    Mr. Dickey’s claim of excessive force under the Fourth Amendment
    is GRANTED.
    B. Mr. Dickey states a claim for battery, assault and
    intentional infliction of emotional distress under the
    Federal Tort Claims Act (“FTCA”).
    Void of a single case citation discussing the FTCA,
    14
    Defendants contend that Mr. Dickey’s FTCA claims fail based on
    the same arguments set forth in opposition to Mr. Dickey’s
    unreasonable search claim. Defs.’ Mem. Supp. at 13-15 (“Even
    taking the facts as pled, [n]one of these searches were
    unreasonable or unlawful under the circumstances and were
    authorized by law; and as authorized searches, the touching of
    the Plaintiff does not amount to nor does it constitute assault,
    battery and intentional infliction of emotional distress.”);
    Defs.’ Mem. Reply, Docket No. 10 at 8 (“As discussed above,
    although the Plaintiff has alleged that Officer Alexander’s
    search violated the rules for a search indecent to arrest, the
    Courts have clearly established such a search will be a
    ‘relatively extensive exploration of the person.’”) (internal
    citations omitted)). Plaintiff’s briefing of his FTCA claims,
    consisting of three conclusory paragraphs, is equally unhelpful.
    Pl.’s Mem. Opp. at 7 and 14.
    The United States is immune from suit absent an express
    waiver of its sovereign immunity. Kugel v. United States, 
    947 F.2d 1504
    , 1506 (D.C. Cir. 1991). The FTCA was enacted in 1946,
    designed primarily to “remove the sovereign immunity of the
    United States from suits in tort.” Levin v. United States, 
    133 S.Ct. 1224
    , 1228 (2013) (internal citations omitted). The FTCA
    gives federal district courts exclusive jurisdiction over claims
    against the United States for “injury or loss of property, or
    15
    personal injury or death caused by the negligent or wrongful act
    or omission” of a federal employee “acting within the scope of
    his office or employment.” Millbrook v. U.S., 
    133 S. Ct. 1441
    ,
    1443 (2013); 
    28 U.S.C. § 1346
     (b)(1).
    However, the statute includes a number of exemptions that
    protect the Government from liability for certain torts. 
    Id.
     For
    example, the statute includes an “intentional tort exception,”
    which preserves the Government’s immunity for “[a]ny claim
    arising out of assault, battery, false imprisonment, false
    arrest, malicious prosecution, abuse of process, libel, slander,
    misrepresentation, deceit, or interference with contract
    rights.” § 2680(h). This means that government employees cannot
    be sued for these intentional torts under the FTCA. However, in
    1974, Congress carved out an exception to Section 2680(h),
    commonly referred to as the “law enforcement provisio,” which
    extends the waiver of sovereign immunity to six intentional
    torts when alleged as rising out of the wrongful conduct of law
    enforcement officers. See Act of Mar. 16, 1974, Pub. L. 93-253,
    § 2, 
    88 Stat. 50
    . This means that “anyone empowered by law to
    execute searches, to seize evidence or to make arrests for
    violations of federal law” may be sued for the following
    intentional torts: assault, battery, false imprisonment, false
    arrest, abuse of process, or malicious prosecution. 
    Id.
     In 2013
    the Supreme Court held that “the waiver effected by the law
    16
    enforcement proviso extends to acts or omissions of law
    enforcement officers that arise within the scope of their
    employment, regardless of whether the officers are engaged in
    investigative or law enforcement activity, or are executing a
    search, seizing evidence, or making an arrest.” Millbrook v.
    United States, 
    133 S. Ct. 1441
    , 1446 (2013).
    Here, Mr. Dickey’s battery and assault claims are feasible
    under the FTCA because the waiver of sovereign immunity is
    extended to battery and assault by the law enforcement proviso.
    Mr. Dickey’s intentional infliction of emotional distress claim
    is possible because it is not one of the intentional torts
    listed by Congress in the § 2680(h) exception. Each of these
    claims are plausibly alleged in connection with Mr. Dickey’s
    claim of an unreasonable search in violation of his Fourth
    Amendment rights. The burden is on Defendants to show that Mr.
    Dickey’s FTCA claims should be dismissed. Because Defendants do
    not make any persuasive arguments to that end, Defendants’
    Motion to Dismiss Mr. Dickey’s FTCA claims is DENIED. 5
    5 Plaintiffs suing under the FTCA must exhaust their
    administrative remedies prior to filing suit. McNeil v. United
    States, 
    508 U.S. 106
     (1993). “The exhaustion requirement is
    jurisdictional.” Hurt v. Lappin, 
    729 F. Supp.2d 186
    , 190 (D.D.C.
    2010) (citing GAF Corp. v. United States, 
    818 F.2d 901
    , 904)
    (D.C. Cir. 1987). That is, exhaustion is a “mandatory
    prerequisite” to a court suit under the FTCA. 
    Id.
     Here, Mr.
    Dickey alleges that he exhausted his administrative remedies by
    “sending notice of his claim to the Federal Protective Services
    on or about May 13, 2014 (less than a year after the incident
    17
    III. CONCLUSION
    After consideration of the motion, the response and reply
    thereto, the applicable law, and the entire record, for the
    reasons discussed in this Memorandum Opinion, Defendant’s Motion
    is GRANTED in part and DENIED in part. An appropriate order
    accompanies this Memorandum Opinion.
    Signed: Emmet G. Sullivan
    United States District Court Judge
    March 30, 2016
    occurred), and more than six (6) months have expired without a
    response.” Compl. ¶ 23. Although no evidence of this exhaustion
    is attached to Mr. Dickey’s complaint, Defendants do not contest
    his claim of proper exhaustion.
    18
    

Document Info

Docket Number: Civil Action No. 2015-0577

Citation Numbers: 174 F. Supp. 3d 366

Judges: Judge Emmet G. Sullivan

Filed Date: 3/30/2016

Precedential Status: Precedential

Modified Date: 1/13/2023

Authorities (25)

Craig Hill v. Robert Bogans and the City and County of ... , 735 F.2d 391 ( 1984 )

australia-johnson-v-a-glick-warden-of-manhattan-house-of-detention-for , 481 F.2d 1028 ( 1973 )

Intl Actn Ctr v. United States , 365 F.3d 20 ( 2004 )

Dolly Kyle Browning and Direct Outstanding Creations ... , 292 F.3d 235 ( 2002 )

Lisa Amaechi v. Matthew West, and Bernard R. Pfluger Town ... , 237 F.3d 356 ( 2001 )

Campbell v. Miller , 499 F.3d 711 ( 2007 )

Wasserman v. Rodacker , 557 F.3d 635 ( 2009 )

Owen Kugel v. United States , 947 F.2d 1504 ( 1991 )

Frances Rogala v. District of Columbia and Ephriam Williams,... , 161 F.3d 44 ( 1999 )

Gaf Corporation v. United States of America. Keene ... , 818 F.2d 901 ( 1987 )

Kenneth W. Martin v. John P. Malhoyt, John Doe(s) Shirley ... , 830 F.2d 237 ( 1987 )

United States v. Scott , 987 A.2d 1180 ( 2010 )

Charles Kowal v. MCI Communications Corporation , 16 F.3d 1271 ( 1994 )

Hurt v. Lappin , 729 F. Supp. 2d 186 ( 2010 )

Bell v. Wolfish , 99 S. Ct. 1861 ( 1979 )

United States v. Robinson , 94 S. Ct. 467 ( 1973 )

Terry v. Ohio , 88 S. Ct. 1868 ( 1968 )

Bivens v. Six Unknown Fed. Narcotics Agents , 91 S. Ct. 1999 ( 1971 )

Roberts v. Rhode Island , 175 F. Supp. 2d 176 ( 2000 )

Redding v. Edwards , 569 F. Supp. 2d 129 ( 2008 )

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