HENRY H. KENNEDY, JR., District Judge.
This matter is before the Court on defendants' motion to dismiss. Because sovereign immunity bars claims against the defendants in their official capacities, the Court lacks personal jurisdiction over the defendants in their individual capacities, and because plaintiff has not exhausted his administrative remedies prior to filing this action, defendants' motion will be granted.
In the Superior Court of the District of Columbia, plaintiff was convicted "by a . . . jury on charges of second-degree murder while armed and related weapons offenses." Morton v. Burns, No. 01 CA 6368, 2002 D.C.Super. LEXIS 69, at *1 (D.C.Super.Ct. May 28, 2002). The Superior Court imposed a sentence of 21 years to life imprisonment, and its "judgment and commitment order . . . committed the plaintiff to the custody of the Attorney General of the United States." Id., 2002 D.C. Super. LEXIS 69, at *2. Plaintiff has been transferred to the custody of the Federal Bureau of Prisons ("BOP"), and now is incarcerated at the United States Penitentiary Hazelton ("USP Hazelton") in Bruceton Mills, West Virginia.
The claims plaintiff raises in this action arise from his employment by UNICOR while in BOP custody.
The statutory bases for plaintiff's claims are not clear. Plaintiff suggests, however, that defendants' actions "constitute harassment and biased hate crime." Mem. of P. & A. in Supp. of Pl.'s Opp'n to Mot. to Dismiss ("Pl.'s Opp'n") at 2 (emphasis removed). He does not name the United States or a federal government agency as a defendant, and the Court presumes, then, that plaintiff brings this action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which recognizes "an implied private action for damages against federal officers alleged to have violated [a person's] constitutional rights." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001); see Hartman v. Moore, 547 U.S. 250, 254 n. 2, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) ("[A] Bivens action is the federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.").
Defendants, all of whom are federal employees, move to dismiss the complaint. They argue that sovereign immunity bars plaintiff's claims against them in their official capacities, that this Court lacks personal jurisdiction over them in their individual capacities, and that plaintiff failed to exhaust his administrative remedies prior to filing this action as is required under the Prison Litigation Reform Act ("PLRA"), see 42 U.S.C. § 1997e(a).
To the extent that plaintiff sues the defendants in their official capacities, his claims are treated as if they were brought against the federal government itself. See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("Official capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent," such that "an official capacity suit is, in all respects other than name, to be treated as a suit against the entity."). "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Notwithstanding
The Court concludes that sovereign immunity bars plaintiff's claims against defendants in their official capacities.
Defendants argue that the Court lacks personal jurisdiction over them in their individual capacities. Defs.' Mem. at 11-12. It does not appear that defendants are persons "domiciled in, organized under the laws of, or maintaining [their] principal place of business in, the District of Columbia" over whom "[a] District of Columbia court may exercise personal jurisdiction." D.C.CODE § 13-422. Rather, in order "to exercise personal jurisdiction over a non-resident, the Court must examine whether jurisdiction is applicable under the relevant long-arm statute, D.C. CODE § 13-423, and must also determine whether jurisdiction satisfies the requirements of due process." Boland v. Fortis Const. Co., LLC, 796 F.Supp.2d 80, 89, 2011 WL 2685612, at *5 (D.D.C. July 12, 2011) (citing GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.Cir. 2000)).
The long-arm statute allows a court in the District of Columbia to exercise personal jurisdiction over a non-resident defendant with regard to a claim arising from the defendant's conduct in:
D.C.CODE § 13-423(a). The due process prong of the analysis turns on whether a defendant's "minimum contacts" with the District of Columbia establish that "the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks omitted). These minimum contacts must arise from "some act by which the defendant purposefully avails [himself] of the privilege of conducting activities with the forum state, thus invoking the benefits and protections of its laws." Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1988) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). In other words, a "defendant's conduct and connection with the forum State are such that [he] should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
Defendants neither reside in the District of Columbia, nor fall within the scope of the long-arm statute, nor maintain minimum contacts in this forum.
In relevant part, the Prison Litigation Reform Act ("PLRA") provides that:
42 U.S.C. § 1997e(a). Defendants move to dismiss the complaint on the ground that plaintiff "has failed to exhaust his administrative remedies with regard to [the] claims raised in this lawsuit." Defs.' Mem. at 7.
The PLRA exhaustion requirement is mandatory and "applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C.Cir.2008); see also Kim v. United States, 632 F.3d 713, 718 (D.C.Cir.2011) (discussing requirement that a prisoner exhaust prison grievance procedures under the PLRA before filing a lawsuit). Exhaustion under the PLRA requires proper exhaustion, meaning that a prisoner must comply with all procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378,
The BOP's Administrative Remedy Program is the means by which an inmate "seek[s] formal review of an issue relating to any aspect of his[] own confinement." 28 C.F.R. § 542.10(a). Generally, "an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy." 28 C.F.R. § 542.13(a). If an informal resolution is not achieved, the inmate may submit a formal written administrative remedy request. 28 C.F.R. § 542.14(a). If the inmate is not satisfied with the Warden's response at this first level of the process, he "may submit an [a]ppeal to the Regional Director," and if he is satisfied with the Regional Director's response, he "may submit an [a]ppeal . . . to the General Counsel" at BOP's central office. 28 C.F.R. § 542.15(a)
According to defendants, plaintiff "filed an administrative remedy request, # 566839-F1, at the institutional level regarding his request to be given a grade one position and back pay for fifteen months," but has not "file[d] at the regional and central office levels." Defs.' Mem., Ex. A (Plumley Decl.) ¶ 4. Plaintiff correctly notes that exhaustion of administrative remedies is an affirmative defense, see Pl.'s Opp'n at 8, such that he is not required to allege exhaustion in his complaint. See Jones, 549 U.S. at 215-16, 127 S.Ct. 910. He appears instead to assert that further pursuit of an administrative remedy would be futile. See Pl.'s Opp'n at 8 ("Plaintiff exhaust remedy to the warden level knowing that at the known response that rebutt [sic] from informal resolution was just countless[].").
"Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the available administrative process." Kaemmerling, 553 F.3d at 675 (citing Booth, 532 U.S. at 739, 741 & n. 6, 121 S.Ct. 1819). A matter involving UNICOR employment may be addressed through an inmate grievance. See Garfield v. Fed. Prison Indus., Inc., 3 Fed.Appx. 292 (6th Cir.2001) (affirming dismissal of Bivens action brought by federal prisoner alleging denial of longevity pay for prior employment with UNICOR); Heard v. Williamson, No. 1:CV-07-00254, 2008 WL 191810 (M.D.Pa. Jan. 22, 2008) (dismissing complaint alleging violation of constitutional rights for issuance of incident report resulting in temporary reduction in pay for UNICOR job); Gordon v. Lappin, No. 06-0427, 2006 WL 2228932, at *2 (D.D.C. Aug. 3, 2006) (dismissing prisoner's complaint alleging an unconstitutional transfer from one penitentiary to another resulting in the "loss of UNICOR Grade 2 Pay"). Only "if `the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint'" is plaintiff relieved of his obligation to complete the inmate grievance process. Kaemmerling, 553 F.3d at 675 (quoting Booth, 532 U.S. at 736, 121 S.Ct. 1819). Plaintiff makes no such showing, and the Court concludes that plaintiff failed to exhaust the available administrative remedies prior to filing the action.
For the reasons discussed, the Court will grant defendants' motion to dismiss.