Hammond v. Fed. Bureau of Prisons

• Citation: 740 F.Supp.2d 105
• Decision Date: 25 September 2010
• Docket Number: Civil Action No.: 08-0326 (RMU)
• Parties: Kenneth HAMMOND, Plaintiff, v. FEDERAL BUREAU OF PRISONS et al., Defendants.
• Court: U.S. District Court — District of Columbia

740 F.Supp.2d 105

Kenneth HAMMOND, Plaintiff,

v.FEDERAL BUREAU OF PRISONS et al., Defendants.

Civil Action No.: 08-0326 (RMU).

United States District Court, District of Columbia.

Sept. 25, 2010.

Kenneth Hammond, Silver Spring, MD, pro se.

Charlotte A. Abel, United States Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

Granting the Defendants' Renewed Motion to Dismiss

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This matter comes before the court on the defendants' renewed motion to dismiss. The pro se plaintiff, who was sentenced to a term of imprisonment in the Superior Court of the District of Columbia, has asserted Fifth Amendment claims against certain individual defendants, as well as a claim under the Federal Tort Claims Act ("FTCA") against the Federal Bureau of Prisons ("BOP"). In their renewed motion to dismiss, the defendants assert that the plaintiff's Fifth Amendment claims must be dismissed because the plaintiff failed to serve the amended complaint on the individual defendants, and that the plaintiff's FTCA claims must be dismissed because he failed to exhaust his administrative remedies before bringing suit. For the reasons discussed below, the court grants the defendants' motion.

II. FACTUAL & PROCEDURAL BACKGROUND

In January 2008, the plaintiff commenced this action against the "D.C. Records Center and Federal Bureau of Prisons," alleging violations of his constitutional rights.¹See generally Compl. In April 2008, the BOP filed a motion to dismiss. See generally BOP's Mot. to Dismiss. In his opposition to the motion, the plaintiff asserted, for the first time, an FTCA claim against the BOP and Fifth Amendment Bivens² claims againsttwo individuals not named in the original complaint, Ebony Hill ³ and D. Livingston.⁴See generally Pl.'s Opp'n to BOP's Mot. to Dismiss.

On January 22, 2009, the court issued a memorandum opinion construing the plaintiff's opposition as an amended complaint and dismissing all of the plaintiff's claims except the newly raised FTCA claim against the BOP and the Fifth Amendment claims against Hill and Livingston in their individual capacities. See generally Mem. Op., 593 F.Supp.2d 244 (D.D.C.2009). In the order accompanying the memorandum opinion, the court directed the plaintiff to serve the newly-named individual defendants with the amended complaint by May 22, 2009. See Order (Jan. 22, 2009). The plaintiff was advised that failure to effect service by that date could result in dismissal of his action. See id.

On November 16, 2009, the court granted the defendants' motion for leave to file a renewed motion to dismiss addressing the claims raised in the plaintiff's amended complaint. Mem. Order (Nov. 16, 2009) at 1-2. In the renewed motion to dismiss, the defendants contend that the plaintiff's Fifth Amendment claims against Hill and Livingston must be dismissed because the plaintiff failed to properly serve these individuals as required by the court's January 22, 2009 order. Defs.' Renewed Mot. to Dismiss ("Defs.' Mot.") at 5-6. The defendants also argue that the plaintiff's FTCA claim must be dismissed because the plaintiff failed to properly exhaust his administrative remedies before bringing suit. Id. at 6-7.

In response to the defendants' motion for leave to file a renewed motion to dismiss, the plaintiff filed an opposition to the defendants' renewed motion to dismiss addressing the defendants' arguments regarding improper service of Hill and Livingston. See generally Pl.'s 2d Mot. for Default J. & Opp'n to Defs.' Renewed Mot. to Dismiss ("Pl.'s Opp'n"). The opposition did not, however, address the defendants' arguments concerning dismissal of the plaintiff's FTCA claims. See generally id.

Accordingly, the court directed the plaintiff to file a supplemental opposition by November 30, 2009 addressing the defendants' arguments concerning dismissal of the plaintiff's FTCA's claims. Mem. Order (Nov. 16, 2009) at 3. After obtaining numerous extensions of time, the plaintiff filed his supplemental opposition on August 12, 2010. See generally Pl.'s Suppl. Opp'n. With the defendant's motion now ripe for adjudication, the court turns to the applicable legal standards and the parties' arguments.

III. ANALYSIS

1. The Court Dismisses the Plaintiff's Fifth Amendment Claims

The defendants contend that the court should dismiss the plaintiff's Fifth Amendment claims against Hill and Livingston because the plaintiff failed to properly serve them with the amended complaint. Defs.' Mot. at 5-6; Defs.' Reply in Support of Defs.' Mot. ("Defs.' Reply") at 1-3. The plaintiff responds that he properly served Hill and Livingston by mailing a copy of the summons and amended complaint by certified mail, return receipt requested, totheir last known places of employment. Pl.'s Opp'n at 1-2. The plaintiff has not, however, submitted any proof regarding when he mailed these documents or who received the mailings. See generally id.; Pl.'s Suppl. Opp'n.

A party can move the court to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. Fed. R. Civ. P. 12(b)(5); see also Chen v. Dist. of Columbia, 256 F.R.D. 263, 266 (D.D.C.2009) (noting that "[c]ourts routinely dismiss cases for insufficient service of process pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure"). "[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of law." Light v. Wolf, 816 F.2d 746, 751 (D.C.Cir.1987) (internal quotations omitted); Hilska v. Jones, 217 F.R.D. 16, 20 (D.D.C.2003).

Rule 4(i)(3) provides that when a federal employee is "sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g)." Fed. R. Civ. P. 4(i)(3) (emphasis added); see also Simpkins v. D.C. Gov't, 108 F.3d 366, 369 (D.C.Cir.1997) (observing that "defendants in Bivens actions must be served as individuals"); Davis v. Mukasey, 669 F.Supp.2d 45, 50 n. 4 (D.D.C.2009) (holding that claims against officials in their personal capacities were "subject to dismissal because none of the defendants ... have been served in his or her personal capacity"); Henderson v. Ratner, 677 F.Supp.2d 37, 42 (D.D.C.2009) (dismissing claims against a federal official in her personal capacity because the defendant "has not been served in her personal capacity and, absent effective service, this Court has no personal jurisdiction over her").

Federal Rule of Civil Procedure 4(e) governs the service of non-minor, competent individuals "within a judicial district of the United States." See Fed. R. Civ. P. 4(e). More specifically, Rule 4(e)(2) provides that such an individual may be served by delivering a copy of the summons and complaint to the individual personally, by leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or delivering a copy of each to an authorized agent. Id. 4(e)(2). Rule 4(e)(1) also permits service to be effected according to the "law of the state in which the district court is located, or in which service is effected." Id. 4(e)(1).

Rule 4(e) of the District of Columbia Superior Court Civil Rules sets forth the requirements for service of process in the District of Columbia. See D.C. Super. Ct. Civ. R. 4(e). These requirements mirror the requirements set forth in Federal Rule of Civil Procedure 4(e). See id. In addition, D.C. Superior Court Rule 4(c) permits service to be effect upon an individual "by mailing a copy of the summons, complaint and initial order to the person to be served by registered or certified mail, return receipt requested" or "by mailing a copy of the summons, complaint and initial order by first-class mail, postage prepaid, to the person to be served, together with two copies of a Notice and Acknowledgment ... and a return envelope, postage prepaid, addressed to the sender." Id. 4(c).

Plainly, the plaintiff did not satisfy the requirements of Federal Rule 4(e)(2) by mailing copies of the summons andamended complaint to Hill and Livingston at their places of employment. See Fed. R. Civ. P. 4(e)(2). Nor has the plaintiff demonstrated that he properly effected service on Hill and Livingston under D.C. law, as he has not submitted any proof that Hill or Livingston signed for or otherwise received the mailings.⁵See Wilson-Greene v. Dep't of Youth Rehab. Servs., 2007 WL 2007557, at *2 (D.D.C. July 9, 2007) (holding that the plaintiff failed to properly serve the individual defendants under D.C. law by certified mail, return receipt requested, because "[a]lthough the Civil Rules of the D.C. Superior Court allows service by mail, such service must be made on the individual to be served" and "[the] Plaintiff has offered no evidence that a copy of the complaint and the summons was delivered to the individual plaintiffs or that [the individuals who signed for the mailings] were in some way authorized to accept service of process"); see also Toms v. Hantman, 530 F.Supp.2d 188, 191 (D.D.C.2008) (holding that the plaintiff did not properly serve the defendant under D.C. law by sending the summons and complaint by certified mail to the defendant's business address). Thus, because the plaintiff failed to properly serve Hill and Livingston, the court grants the defendants' motion to dismiss the plaintiff's Fifth Amendment claims.

Because insufficient service of process is typically a defect that can be cured, dismissal under Rule 12(b)(5) is ordinarily without prejudice. See Simpkins, 108 F.3d at 369 (noting that "the insufficiency of...