United States District Court, E.D. Virginia, Richmond Division
RICHARD R. TISDALE, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM OPINION (GRANTING DEFENDANTS' MOTION
E. Hudson, United States District Judge.
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.
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. Tisdale, however,
failed to clearly identify the statute, rule, or case that
authorizes this action. Not until page five of the
Particularized Complaint did Tisdale mention, 18 U.S.C.
§ 2712, the statute under which he brings this action.
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
Defendants' Motion to Dismiss under Fed.R.Civ.P.
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).
Tisdale brings this action under 18 U.S.C. § 2712.
(Part. Compl. 5.) That statute provides, in pertinent part,
(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
18 U.S.C. § 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 ...