UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________ ) DENNIS JOHNSON, ) ) Plaintiff, ) Civil Action ) No. 15-1851(EGS) v. ) ) PARAGON SYSTEMS, INC., et al., ) ) Defendants. ) ___________________________________)

MEMORANDUM OPINION

Plaintiff Dennis Johnson, a retired law enforcement

officer, claims that he was improperly detained and harassed

after he entered an Immigration and Customs Enforcement (“ICE”)

facility with a handgun. He has sued the private security

contractors — MVM, Inc. (“MVM”) and Paragon Systems,

Inc.(“Paragon”) — allegedly responsible for security at that ICE

facility, along with Federal Protective Services (“FPS”) and one

of its employees, Christopher Addams (collectively, “Federal

Defendants”). Pending before the Court are MVM and the Federal

Defendants’ motions to dismiss the amended complaint. For the

reasons articulated below, the Court GRANTS defendants’ motions

and dismisses Mr. Johnson’s complaint.

I. BACKGROUND

On October 31, 2012, Mr. Johnson arrived at an ICE facility

and entered the building with a loaded handgun in his briefcase.

1 Am. Compl., ECF No. 12 ¶ 10. 1 As a retired federal law

enforcement officer, Mr. Johnson asserts that he is entitled to

carry a firearm on federal property at any time. Id. ¶ 10.

Nonetheless — perhaps because Mr. Johnson inadvertently

entered the ICE facility through the visitors' entrance and not

the employees' entrance — Mr. Johnson was immediately detained

by security guards allegedly employed or supervised by

defendants. Id. ¶¶ 10-13. According to Mr. Johnson, even though

he promptly displayed his law-enforcement badge to the security

guards, and even though the security guards were allegedly

notified that Mr. Johnson was entitled to bring his weapon into

the building, the security guards "handcuffed Plaintiff for over

two hours." Id. ¶¶ 13-15.

Mr. Johnson further alleges that Christopher Addams — a FPS

employee who supposedly supervised "either a Paragon Systems

employee or MVM employee" — threatened to initiate criminal

proceedings against Mr. Johnson for his conduct. Id. ¶¶ 16-17.

Mr. Addams purportedly continued to threaten Mr. Johnson with

legal action for a period of over two months after the incident,

through December 2012. Id.

1 When citing electronic filings in this opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 Based on these allegations, Mr. Johnson filed suit on

October 31, 2015 against Paragon. See Compl., ECF No. 1. In that

complaint, Mr. Johnson asserted four causes of action: (1) a

"Civil Rights Violation" pursuant to section 1983; (2) assault

and battery; (3) intentional infliction of emotional distress;

and (4) common-law negligence. Id. ¶¶ 18-35.

On July 1, 2016, the Court granted Paragon's partial motion

to dismiss, dismissing Mr. Johnson's claim for intentional

infliction of emotional distress after concluding that Mr.

Johnson had failed to sufficiently allege that his injury

resulted from "extreme and outrageous conduct." See Johnson v.

Paragon Sys., Inc.,

(D.D.C. 2016).

Almost a year after initially filing suit, on October 21,

2016, Mr. Johnson filed an amended complaint that omitted his

previously-dismissed claim for intentional infliction of

emotional distress and added MVM, FPS, and Mr. Addams as co-

defendants. See Am. Compl., ECF No. 12. On September 27, 2017,

the Court granted Paragon summary judgment after finding that

Mr. Johnson had failed to adduce evidence suggesting that

Paragon took any action that caused Mr. Johnson’s alleged

injuries. See Johnson v. Paragon Systems Inc.,

(D.D.C. 2017).

Both MVM and the Federal Defendants now move to dismiss Mr.

Johnson’s amended complaint pursuant to Federal Rule of Civil

3 Procedure 12. Specifically, MVM argues that the amended

complaint should be dismissed for insufficient service of

process, because Mr. Johnson’s claims are barred by the relevant

statutes of limitations, and because Mr. Johnson fails to state

a claim for negligence. See MVM Mem. in Supp. Mot. to Dismiss

(“MVM Mot.”), ECF No. 22-1 at 5-13. The Federal Defendants move

to dismiss Mr. Johnson’s complaint for insufficient service of

process, lack of subject-matter jurisdiction, qualified

immunity, lack of personal jurisdiction, and for failure to

state a claim. See Fed. Defs.’ Mem. in Supp. Mot. to Dismiss

(“Fed. Mot.”), ECF No. 23-1 at 6-18. For the following reasons,

the Court GRANTS those motions and dismisses Mr. Johnson’s

amended complaint. 2

II. LEGAL STANDARD

A. Rule 12(b)(1) – Subject-Matter Jurisdiction

"A federal district court may only hear a claim over which

[it] has subject-matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court's

jurisdiction." Gregorio v. Hoover,

(D.D.C.

2 The Court does not address defendants’ compelling service- of-process arguments because “the interest of judicial economy is served by reaching the merits of [plaintiff’s] claims against [defendants] at this time, rather than delaying the inevitable by allowing [plaintiff] to file another lawsuit against those Defendants containing the same meritless claims.” McManus v. District of Columbia,

(D.D.C. 2007). 4 2017) (citation and internal quotation marks omitted). To

survive a Rule 12(b)(1) motion, the plaintiff bears the burden

of establishing that the court has jurisdiction by a

preponderance of the evidence. Lujan v. Defenders of Wildlife,

(1992). Because Rule 12(b)(1) concerns a

court's ability to hear a particular claim, "the court must

scrutinize the plaintiff's allegations more closely when

considering a motion to dismiss pursuant to Rule 12(b)(1) than

it would under a motion to dismiss pursuant to Rule 12(b)(6)."

Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011). In so doing, the court must accept as true all of

the factual allegations in the complaint and draw all reasonable

inferences in favor of the plaintiff, but the court need not

"accept inferences unsupported by the facts alleged or legal

conclusions that are cast as factual allegations." Rann v. Chao,

(D.D.C. 2001).

In reviewing a motion to dismiss pursuant to Rule 12(b)(1),

the court "may consider such materials outside the pleadings as

it deems appropriate to resolve the question whether it has

jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections

& Ethics,

(D.D.C. 2000); see also Jerome

Stevens Pharm., Inc. v. Food and Drug Admin.,

(D.C. Cir. 2005). Faced with motions to dismiss under Rule

12(b)(1) and Rule 12(b)(6), a court should first consider the

5 Rule 12(b)(1) motion because "[o]nce a court determines that it

lacks subject matter jurisdiction, it can proceed no further."

Ctr. for Biological Diversity v. Jackson,

(D.D.C. 2011) (citations and internal quotation marks omitted).

B. Rule 12(b)(6) – Failure to State a Claim

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). A

complaint must contain "a short and plain statement of the claim

showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests." Bell Atl. Corp. v. Twombly,

(2007) (internal quotation marks omitted).

"[W]hen ruling on a defendant's motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint." Atherton v.

D.C. Office of the Mayor,

(D.C. Cir. 2009)

(internal quotation marks omitted). In addition, the court must

give the plaintiff the "benefit of all inferences that can be

derived from the facts alleged." Kowal v. MCI Commc'ns Corp.,

(D.C. Cir. 1994).

Despite this liberal pleading standard, to survive a motion

to dismiss, a complaint "must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible

6 on its face." Ashcroft v. Iqbal,

(2009)

(citation and internal quotation marks omitted). A claim is

facially plausible when the facts pled in the complaint allow

the court to "draw the reasonable inference that the defendant

is liable for the misconduct alleged."

The standard does not

amount to a "probability requirement," but it does require more

than a "sheer possibility that a defendant has acted

unlawfully."

III. DISCUSSION

A. Plaintiff’s Claims Against MVM Are Time-Barred.

MVM moves to dismiss all the claims asserted against it on

the grounds that they are barred by the relevant statutes of

limitations. See MVM Mot., ECF No. 22-1 at 6-9. The Court agrees

that Mr. Johnson’s claims against MVM are time barred.

An affirmative defense based on the statute of limitations

“may be raised by pre-answer motion under Rule 12(b).” Smith-

Haynie v. Dist. of Columbia,

(D.C. Cir. 1998).

Because statute-of-limitations issues often depend on contested

questions of fact, “a defendant is entitled to succeed on a Rule

12(b)(6) motion to dismiss brought on statutes of limitations

grounds only if the facts that give rise to this affirmative

defense are clear on the face of the plaintiff's complaint.”

Lattisaw v. Dist. of Columbia, 118 F. Supp.3d 142, 153 (D.D.C.

2015).

7 “When deciding state-law claims under diversity or

supplemental jurisdiction, federal courts apply the choice-of-

law rules of the jurisdiction in which they sit.” Ideal Elec.

Sec. Co. v. Int'l Fid. Ins. Co.,

(D.C. Cir.

1997). “Because the District of Columbia treats the statute of

limitations as a procedural issue rather than a substantive one,

the law of the forum state applies, as it does with respect to

all procedural matters.” Gaudreau v. Am. Promotional Events,

Inc.,

(D.D.C. 2007) (internal quotation

marks omitted). Accordingly, District of Columbia law provides

the limitations periods for Mr. Johnson’s claims.

Under District of Columbia law, Mr. Johnson’s section 1983

claim is subject to a three-year statute of limitations period.

See Earle v. D.C.,

(D.C. Cir. 2012) (“We apply

the three-year residual statute of limitations to a section 1983

claim.”). Likewise, Mr. Johnson’s negligence claim is subject to

the District of Columbia’s three-year residual statute of

limitations. See D.C. Code § 12—301(8); Griggs v. Washington

Metro. Area Transit Auth.,

(D.C. Cir. 2000)

(claim sounding in negligence subject to a three-year statute of

limitations). Finally, a one-year statute of limitations period

applies to Mr. Johnson’s claim for assault and battery. See D.C.

Code § 12—301(4) (one-year limitations period applies to assault

and battery claims); King v. Barbour,

, 139

8 (D.D.C. 2017) (“The statute of limitations for civil assault

claims in the District of Columbia is one year.”).

The statutory period begins to run “from the time the right

to maintain the action accrues.” D.C. Code § 12–301. The cause

of action accrues “when the plaintiff knows or through the

exercise of due diligence should have known of the injury.” See

Dist. of Columbia v. Dunmore,

(D.C. 1995)

(internal quotation marks omitted); Munoz v. Bd. of Trs. of the

Univ. of the Dist. of Columbia,

(D.C. Cir.

2011) (section 1983 claim accrued when the alleged wrongful

conduct occurred).

Here, the alleged wrongful conduct that forms the basis of

Mr. Johnson’s claims occurred on or about October 31, 2012 and

continued through December 31, 2012. Am. Compl., ECF No. 12 ¶¶

10-11, 16. 3 Mr. Johnson did not file his complaint against MVM

until October 21, 2016, almost four years after his claims

against MVM accrued and well past the expiration of the relevant

statutes of limitations.

3 Mr. Johnson’s Amended Complaint alleges that the incident underlying his claims occurred, alternatively, “on or about October 24, 2012” and “on or about October 31, 2012.” See Am. Compl., ECF No. 12 ¶¶ 10, 11. Mr. Johnson’s original complaint refers only to the October 31, 2012 date. See Compl., ECF No. 1 ¶¶ 9, 10, 16. Whether the incident occurred on October 24 or October 31 does not change the result, however, because, as explained more fully below, Mr. Johnson filed his lawsuit against MVM more than a year after the latest limitations period had expired. 9 Mr. Johnson makes two arguments in support of his

contention that his claims against MVM should be deemed timely.

Neither argument saves his case.

First, Mr. Johnson asserts that his claim for a “Civil

Rights violation” against MVM is not time-barred because that

claim appeared in the original complaint, which was filed on

October 31, 2015, and therefore falls within the three-year

statute of limitations for section 1983 claims. Pl.’s Opp. to

MVM Mot. to Dismiss (“Pl.’s MVM Opp.”), ECF No. 28 at 6. 4 Under

Federal Rule of Civil Procedure 15(c), an amended complaint

adding a new defendant “relates back” to the original complaint

only when, inter alia, the newly added defendant received notice

of the action “within the period provided by Rule 4(m) for

serving the summons and complaint” and “knew or should have

known that the action would have been brought against it, but

for a mistake concerning the proper party’s identity.” In other

words, “relation back under Rule 15(c)(1)(C) depends on what the

party to be added knew or should have known.” Krupski v. Costa

Crociere S.p.A.,

(2010). Consistent with the

rule, “[a] potential defendant who has not been named in a

4 Although Mr. Johnson does not appear to make this same argument with respect to his negligence claim – which is also subject to a three-year statute of limitations period and which was also alleged in his original complaint – the same analysis applies. 10 lawsuit by the time the statute of limitations has run is

entitled to repose – unless it is or should be apparent to that

person that he is the beneficiary of a mere slip of the pen, as

it were.” Rendall-Speranza v. Nassim,

(D.C.

Cir. 1997).

Mr. Johnson offers no argument in support of the contention

that MVM knew or should have known of the claims asserted in the

original complaint. Nor is there any indication that Mr. Johnson

merely made “a mistake concerning the proper party’s identity”

in its original complaint. See Krupski,

(holding

that district court erred in denying relation back under Rule

15(c)(1)(C)(ii) where newly-added corporate defendant was a

closely-related entity represented by the same counsel and had

“constructive notice” of plaintiff’s complaint within the Rule

4(m) time period). For example, Mr. Johnson does not allege that

the defendant named in the original complaint, Paragon, is

related to MVM in any way. Accordingly, Mr. Johnson cannot rely

on the relation back doctrine to save his negligence or section

1983 claims. 5

5 Moreover, even if Mr. Johnson’s section 1983 claim was not barred by the statute of limitations, dismissal of that claim would still be required because MVM does not act under the color of state law and thus a section 1983 claim cannot be maintained against it. See Am. Compl., ECF No. 12 ¶¶ 5, 7, 19 (alleging that MVM is a contractor with the federal government); MVM Mot., ECF No. 22-1 at 9; see also Williams v. United States,

(D.C. Cir. 2005). 11 Second, Mr. Johnson argues that his tort claims are not

time-barred because “[t]he extent of the injury wasn’t

discovered until later when plaintiff continued to experience

pain and was referred to a specialist who diagnosed the extent

of the injuries.” Pl.’s MVM Opp., ECF No. 28 at 5. 6 The law is

well-settled, however, that a “tort cause of action accrues, and

the statute of limitations commences to run, when the wrongful

act or omission results in damages. The cause of action accrues

even though the full extent of the injury is not then known or

predictable.” Wallace v. Kato,

(2007)

(citation and internal quotation marks omitted, emphasis added).

“Were it otherwise, the statute would begin to run only after a

plaintiff became satisfied that he had been harmed enough,

placing the supposed statute of repose in the sole hands of the

party seeking relief.” Id.; see also, e.g., Baker v. A.H. Robins

Co., Inc.,

(D.D.C. 1985) (fact that

plaintiff did not “comprehend the full extent of all possible

sequalae does not matter, for the law of limitations requires

6 In his opposition brief, Mr. Johnson points to pages in an exhibit that purportedly support this argument. See Pl.’s MVM Opp., ECF No. 28 at 6. Mr. Johnson did not, however, file an exhibit with his opposition, and the Court could not locate any relevant exhibit elsewhere on the docket. In any event, because the amended complaint makes clear that Mr. Johnson knew of his injuries by the end of 2012, the additional information would not change the Court’s result. 12 only that she have inquiry notice of the existence of a cause of

action for personal injury”) (emphasis in original).

Mr. Johnson alleges that he endured “physical pain and

humiliation” at the time he was detained on October 31, 2012,

and that defendants’ actions continued to cause him “undue

stress” until December 2012. See Am. Compl., ECF No. 12 ¶¶ 10-

11, 15-16. His assault-and-battery and negligence claims are

both premised on those injuries. See id. ¶ 27 (alleging that

defendants assaulted or aided in the “assault and battery of

plaintiff, intending to threaten or cause harm to Plaintiff and

to cause apprehension of imminent harm or frivolous criminal

charges from on or about October 31, 2012 and continuously

through December 31, 2012”); id. ¶ 34 (“Defendants [sic]

employees breached the duty of care to Plaintiff by keeping

Plaintiff handcuffed for over 2 hours after determining

Plaintiff was legally entitled to bring a handgun into the ICE

facility and then threatening to start criminal proceedings

against Plaintiff for over 2 months after the event[.]”).

Accordingly, his claims accrued, at the latest, on December 31,

2012, rendering his tort claims untimely.

In sum, because all of the claims asserted against MVM are

barred on statute-of-limitations grounds, the Court GRANTS MVM’s

motion to dismiss.

13 B. Plaintiff’s Claims Against the Federal Defendants Also Fail.

1. The Court Lacks Subject-Matter Jurisdiction Over Plaintiff’s Constitutional Claim Against the Federal Defendants.

Mr. Johnson purports to assert a claim against both FPS and

Mr. Addams in his official capacity for a “Civil Rights

Violation” based on an alleged violation of his Fourth Amendment

rights. See Am. Compl., ECF No. 12 ¶¶ 18-25. The Court agrees

with the Federal Defendants that it lacks subject-matter

jurisdiction over this claim.

Sovereign immunity bars lawsuits for damages against the

United States, its agencies, and its employees sued in their

official capacities absent a waiver. Fed. Deposit Ins. Corp. v.

Meyer,

(1994) (“Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from

suit.”); Kentucky v. Graham,

, 165–66 (1985) (“an

official-capacity suit is, in all respects other than name, to

be treated as a suit against the entity” of which the officer is

an agent). A waiver of sovereign immunity “must be unequivocally

expressed in statutory text” and “will be strictly construed, in

terms of its scope, in favor of the sovereign.” Lane v. Pena,

(1996).

Here, Mr. Johnson’s amended complaint seeks damages from

FPS and Mr. Addams acting in his official capacity for their

14 “deliberate indifference to the constitutional rights of the

Plaintiff.” Am. Compl., ECF No. 12 ¶ 20. Mr. Johnson does not

point to any statute waiving the sovereign immunity of FPS or

Mr. Addams in his official capacity for such a claim. Indeed,

“[s]ection 1983 does not apply to federal officials acting under

color of federal law.” Settles v. U.S. Parole Comm'n,

(D.C. Cir. 2005). Moreover, although federal

constitutional claims are cognizable under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics,

(1971), those claims only run against individual government

officials in their personal capacity — not agencies or their

agents in their official capacities. See Loumiet v. United

States,

(D.C. Cir. 2016).

It is not clear whether Mr. Johnson alleges a Bivens claim

against Mr. Addams in his individual capacity in his amended

complaint. Compare Am. Compl., ECF No. 12 (making no mention of

Bivens or of claims asserted against Mr. Addams in his

individual capacity), with Pl.’s Opp. to Fed. Defs.’ Mot. to

Dismiss (“Pl.’s Fed. Opp.”), ECF No. 29 at 2 (stating that the

claims are alleged against Mr. Addams “in his individual and

official capacity”). In any event, such a claim would fail. For

one, it is well-settled that “[g]overnment officials may not be

held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.” Ashcroft v.

15 Iqbal,

(2009). Therefore, “a plaintiff must

plead that each Government-official defendant, through the

official’s own individual actions, has violated the

Constitution.”

(emphasis added). Here, the primary

allegation that pertains to Mr. Addams’ role in any purported

constitutional violation indicates that Mr. Addams “supervised

either a Paragon Systems employee or MVM employee at all

relevant times.” Am. Compl., ECF No. 12 ¶ 17. Accordingly, Mr.

Johnson may not move forward on his claim for damages for an

alleged violation of his constitutional rights. 7

2. Plaintiff’s Tort Claims Must Be Dismissed Because He Failed to Exhaust His Administrative Remedies.

Mr. Johnson also alleges claims for negligence and assault

and battery against the Federal Defendants. The Court construes

these tort claims as ones brought against the United States

under the Federal Tort Claims Act (“FTCA”), which is the

“exclusive remedy for persons seeking recovery for damages for

any ‘negligent or wrongful act or omission of any employee of

7 To the extent Mr. Johnson seeks “declaratory” and “injunctive relief,” see Am. Compl., ECF No. 12 ¶ 35, the amended complaint does not specify the form of declaratory or injunctive relief sought, and Mr. Johnson does not offer any further description of what he seeks in his opposition brief. Accordingly, the Court finds that the amended complaint fails to meet the specificity requirements of Federal Rule of Civil Procedure 8(a)(3) with respect to any claims for specific relief. See Ward v. Kennard,

(D.D.C. 2000). 16 the Government while acting within the scope of his office or

employment.’” Tripp v. Executive Office of the President,

(D.D.C. 2001).

The FTCA waives sovereign immunity in limited

circumstances, permitting a plaintiff to sue the United States

for torts in situations in which “the United States, if a

private person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.”

(b)(1); Sloan v. Dep't of Hous. & Urban Dev.,

(D.C. Cir. 2001). Before filing suit under the

FTCA, a plaintiff must first present his alleged claims “to the

appropriate Federal agency.”

(a). Exhaustion of

administrative remedies is a mandatory, jurisdictional

prerequisite to filing such a lawsuit in federal court. See

Jones v. United States,

(D.C. Cir. 2008);

Simpkins v. D.C. Gov't,

, 370–71 (D.C. Cir. 1997).

To exhaust administrative remedies under the FTCA, a

plaintiff must have presented the agency with “(1) a written

statement sufficiently describing the injury to enable the

agency to begin its own investigation, and (2) a sum-certain

damages claim.” GAF Corp. v. United States,

(D.C. Cir. 1987). Further, the agency must have either denied

the claim in writing or failed to provide a final disposition

within six months of the filing of the claim.

Importantly,

17 an individual submitting an administrative claim to an agency

must do so within two years of discovery of “both his injury and

its cause.” Sexton v. United States,

(D.C.

Cir. 1987) (quoting United States v. Kubrick,

(1979)); see also

(b).

Mr. Johnson failed to exhaust his administrative remedies

with respect to his tort claims. The amended complaint makes no

mention of submission of Mr. Johnson’s claims to FPS, and Mr.

Johnson’s opposition brief does not even address the Federal

Defendants’ exhaustion-related arguments. See Pl.’s Fed. Opp.,

ECF No. 29. Moreover, because it is undisputed that Mr. Johnson

knew of his alleged injuries by December 2012, see supra, he was

required to present his claim to the agency by December 2014.

Accordingly, Mr. Johnson will be unable to exhaust his

administrative remedies because his claims are time-barred.

IV. CONCLUSION

For the reasons explained above, the Court grants MVM and

the Federal Defendants motions to dismiss Mr. Johnson’s amended

complaint. A separate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 29, 2018

18