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Tisdale v. United States

United States District Court, E.D. Virginia, Richmond Division

July 22, 2019

RICHARD R. TISDALE, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM OPINION (GRANTING DEFENDANTS' MOTION TO DISMISS)

          Henry E. Hudson, United States District Judge.

         Richard R. Tisdale, a former federal prisoner proceeding pro se, brings this action. The remaining Defendants have moved to dismiss under Fed. R. Civ. 12(b)(1) on the grounds that, inter alia, Tisdale failed to exhaust his administrative remedies. Tisdale has responded. For the reasons set forth below, the Motion to Dismiss (ECF No. 22) will be granted.

         I. Procedural History

         By Memorandum Order entered on October 24, 2017, the Court directed Tisdale to file a particularized complaint. (ECF No. 13.) In that Memorandum Order the Court informed Tisdale that "[t]he first paragraph of the particularized pleading must identify the statute, rule or case that authorizes this action." (Id. at 2.) On December 18, 2017, Tisdale filed his Particularized Complaint.[1] Tisdale, however, failed to clearly identify the statute, rule, or case that authorizes this action.[2] Not until page five of the Particularized Complaint did Tisdale mention, 18 U.S.C. § 2712, the statute under which he brings this action.

         While the statute identified by Tisdale authorizes civil actions against the United States, Tisdale failed to identify a procedural vehicle that would allow him to sue the private entities he named as defendants-Oyster Point Self-Service Storage, Bank of America, and Huntington National Bank. Accordingly, by Memorandum Order entered on July 24, 2018, the Court dismissed without prejudice all claims against Oyster Point Self-Service Storage, Bank of America, and Huntington National Bank. (ECF No. 18, at 2.) The Court further directed the Marshal to serve the Federal Bureau of Investigation, the Internal Revenue Service, the United States Navy, and the National Aeronautics and Space Administration ("Defendants"). (Id. at 2-3.)

         II. Defendants' Motion to Dismiss under Fed.R.Civ.P. 12(b)(1)

         Under Rule 12(b)(1), the Court affords Tisdale's Particularized Complaint "the same procedural protection" as one "would receive under a Rule 12(b)(6) consideration." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). Accordingly, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Id. The plaintiff bears the burden of proving the Court's jurisdiction. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (citation omitted). The Court may consider evidence outside the pleadings in order to decide whether it has subject-matter jurisdiction. Id. (citation omitted).

         Here, Tisdale brings this action under 18 U.S.C. § 2712. (Part. Compl. 5.) That statute provides, in pertinent part, as follows:

(a) In general.-Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages. In any such action, if a person who is aggrieved successfully establishes such a violation of this chapter or of chapter 119 of this title or of the above specific provisions of title 50, the Court may assess as damages--
(1) actual damages, but not less than $10, 000, whichever amount is greater; and
(2) litigation costs, reasonably incurred.
(b) Procedures.-(1) Any action against the United States under this section may be commenced only after a claim is presented to the appropriate department or agency under the procedures of the Federal Tort Claims Act, as set forth in title 28, United States Code.
(2) Any action against the United States under this section shall be forever barred unless it is presented in writing to the appropriate Federal agency within 2 years after such claim accrues or unless action is begun within 6 months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. The claim shall accrue on the date upon which the claimant first has a reasonable opportunity to discover the violation.

18 U.S.C. ยง 2712. The United States argues that the Court lacks subject-matter jurisdiction over the present action because Tisdale failed to exhaust his administrative remedies as ...


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