UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES SIMON, : : Plaintiff, : Civil Action No.: 20-580 (RC) : v. : Re Document No.: 2, 3, 5, 6, 7 : UNITED STATES DEPARTMENT : OF JUSTICE, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR DISQUALIFICATION; DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT; DENYING PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS

I. INTRODUCTION

Pro se Plaintiff Charles Simon has filed a complaint against the United States

Department of Justice (“DOJ”); Federal Prison Industries, Inc. (“FPI”); Steve Schwalb, in his

official capacity as Chief Operating Officer of FPI; and T. Speights, Coordinator of FPI

(collectively “Defendants”). Mr. Simon attempts to re-litigate the amount of a monthly

compensation award he received in 1994 pursuant to the Inmate Accident Compensation Act

(“IACA”),

et seq., for a back injury he sustained while incarcerated in 1987.

See Compl. at 1–6, ECF No. 1; Mot. to Dismiss at 6, ECF No. 3. Mr. Simon also challenges the

termination of his compensatory award under IACA and its implementing regulations. Compl. at

1. Though his Complaint is not drafted with perfect clarity, he appears to bring his charges under

Title VII and the Administrative Procedure Act (“APA”).

The instant action follows a string

of materially identical lawsuits filed by Mr. Simon in various courts.

1 Defendants have moved to dismiss Mr. Simon’s latest suit, and Mr. Simon has moved to

disqualify the undersigned Judge, for default judgment, and for judgment on the pleadings. As an

initial matter, the Court denies Plaintiff’s motions. The Court dismisses Mr. Simon’s benefits

termination claim without prejudice because he has failed to demonstrate that he has exhausted

his administrative remedies. Finally, the Court concludes that the doctrines of claim preclusion

(res judicata) and collateral estoppel bar Mr. Simon’s claims pertaining to the calculation of his

compensatory payment under the IACA. In the alternative, the Court finds that the time period in

which Mr. Simon could have litigated the compensation amount he received for his back injury

has lapsed and that his claims are thus time-barred.

II. FACTUAL BACKGROUND

Plaintiff suffered a back injury while incarcerated in a federal facility in Wisconsin in

1987. See Mot. to Dismiss at 4. In 1994, as compensation for this inmate work injury, he was

awarded $73.57 per month, an amount that would be adjusted in line with increases in the federal

minimum wage. See Defs.’ Mot. to Dismiss & Opp’n to Pl.’s Mot. for Prelim. Inj., Simon v. U.S.

Dep’t of Justice, No. 15-cv-1310 (RC),

, (D.D.C. Feb. 3, 2016), aff’d No. 16-

5031,

(D.C. Cir. June 10, 2016), ECF No. 4-1 at 2. Following an

administrative appeal to Defendant Steve Schwalb, at that time FPI’s Chief Operating Officer,

Mr. Simon acknowledged and accepted the award as a “full and final settlement.”

In 1997 Mr. Simon filed a petition for a writ of mandamus “arising from the November

1987 injury and subsequent compensation award,” which was dismissed and a motion for a

preliminary injunction, which was denied. See Simon v. Fed. Prison Indus., Inc., No. 09-cv-

0692,

, at *1 (D.D.C. Aug. 24, 2009) (describing Simon v. Fed. Prison Indus.,

Inc., No. 97-cv-0757 (D.D.C. Oct. 30, 1997) (Mem. Op.)). In 1998, the D.C. Circuit affirmed the

2 District Court’s denial of Mr. Simon’s petition for a writ of mandamus, holding that his “award

of compensation was properly calculated under the Inmate Accident Compensation Act and its

implementing regulations,” that there was “no merit to [his] challenge to the validity of the

inmate compensation system,” and that he “ha[d] not shown that he [was] entitled to medical

treatment after his release.” Simon v. Fed. Prison Indus., Inc.,

(D.C. Cir. 1998) (per

curiam) (unpublished table decision).

In recent years, Mr. Simon has continued to file similar actions in this district against FPI,

Schwalb, and various other defendants. Those actions have been dismissed as barred by the

doctrines of claim preclusion and collateral estoppel. See Simon,

, at *1; Simon

v. Bickell,

, 14–15 (D.D.C. 2010); Simon,

, at *1.

Additionally, Mr. Simon has filed similar cases against FPI and other agencies or

instrumentalities of the United States around the country. See, e.g., Simon v. U.S. Dep’t of

Justice, No. 18-cv-11431,

, at *2 (D. Mass. Nov. 19, 2018), aff’d, No. 18-

2206,

(1st Cir. June 26, 2019), cert. denied,

(2019), reh’g

denied,

(2020); Simon v. Fed. Prison Indus., Inc., No. 03-cv-10792,

, at *1 (D. Mass. Jul. 15, 2003); see also Simon v. Robinson,

, 55 n.1

(3d Cir. 2006) (noting that Mr. Simon has “filed suit and lost in the United States District Courts

for the District of Wisconsin, the District of Massachusetts, the Southern District of New York,

the District of Columbia, and the District of New Jersey” and providing additional citations).

III. PLAINTIFF’S MOTIONS

A. Motion for Disqualification

Plaintiff moves to disqualify the undersigned Judge pursuant to

(a)–(b).

See Pl’s Mot. for Disqualification, ECF No. 7. Plaintiff claims that this Court displayed “deep-

3 seated favoritism” by “disregarding” his Complaint and Motion for Default Judgment.

Plaintiff also alleges that this Court “impermissibly” advised Plaintiff to file a response to

Defendants’ Motion to Dismiss. Id.; see Order, ECF No. 4 (advising Plaintiff to file a response to

Defendants’ Motion to Dismiss in accordance with the Federal Rule of Civil Procedure and

D.D.C. Civ. R. 7(b)).

Under Section 455(b)(1), a judge must recuse “[w]here he has a personal bias or

prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the

proceeding.”

(b)(1). A movant must “demonstrate actual bias or prejudice based

upon an extrajudicial source . . . by providing evidence of the judge’s extrajudicial conduct . . .

that are plainly inconsistent with his responsibilities as an impartial decisionmaker.” Osei v.

Standard Chartered Bank, No. 18-cv-1503,

, at *4 (D.D.C. Feb. 25,

2019), aff’d, No. 19-7018,

(D.C. Cir. June 4, 2019) (quoting Cobell v.

Norton,

(D.D.C. 2003) and Cobell v. Norton,

, 120–

21 (D.D.C. 2004)) (internal quotation marks omitted). “Unfavorable judicial rulings alone almost

never constitute a valid basis for reassignment.” United States v. Hite,

(D.C.

Cir. 2014).

In advising Plaintiff to respond to Defendants’ dispositive motion, the Court was merely

fulfilling its obligations under Fox v. Strickland,

(D.C. Cir. 1988). The Court did

not ignore Plaintiff’s complaint or his motion, but had simply not issued any rulings yet. This

Court’s dismissal of Plaintiff’s Motion for Default Judgment is likewise not grounds for

disqualification. See discussion infra Part III.B. Accordingly, this Court finds that Plaintiff’s

allegations fail to establish a basis for recusal under § 455(a) and the motion to disqualify is

denied.

4 B. Motion for Default Judgment

Plaintiff moves for default judgment on the basis that Defendants failed to respond to his

Complaint. See Pl.’s Mot. for Default J. at 1. Federal Rule of Civil Procedure 55 “sets forth a

two-step process for a party seeking default judgment: entry of default, followed by entry of

default judgment.” Farris v. Rice, No. CV 05-1975 (RMU),

, at *1 (D.D.C.

Jan. 17, 2006). If a defendant has failed to plead or otherwise defend against an action, the

plaintiff may request that the clerk of the court enter default against that defendant. Fed. R. Civ.

P. 55(a). After the clerk’s entry of default, the plaintiff may move for default judgment.

(b)(2). However, under Rule 55(b)(2), the “determination of whether default judgment is

appropriate is committed to the discretion of the trial court.” Flynn v. JMP Restoration Corp.,

No. CIV. A. 10-0102 (ESH),

, at *1 (D.D.C. Apr. 23, 2010) (citing Jackson v.

Beech,

(D.C. Cir. 1980)). For default judgment to occur, a “defendant must be

considered a ‘totally unresponsive’ party and its default plainly willful, reflected by its failure to

respond to the summons and complaint, the entry of default, or the motion for default judgment.”

(quoting Gutierrez v. Berg Contracting Inc., No. 99-cv-3044,

, at *1

(D.D.C. Mar. 20, 2000)).

Here, Plaintiff has filed a Motion for Default Judgment against Defendants without

providing proof of service. See Ibiza Bus. Ltd. v. United States, No. 10-296 (RCL),

, at *1 (D.D.C. July 8, 2010) (“The Court will only enter a default judgment against a

defendant when there is proof that plaintiffs properly served the defendant.”). Equally important,

Defendants are no longer unresponsive as they have moved to dismiss the complaint and have

opposed the Motion for Default Judgment. See Mot. to Dismiss at 8. The Court therefore cannot

5 find that Defendants willfully disregarded their legal responsibilities. Accordingly, the Court

denies Plaintiff’s Motion for Default Judgment. 1

C. Motion for Judgment on the Pleadings

Mr. Simon moves for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). See Mot. J. Pleadings, ECF No. 6. Rule 12(c) provides that “[a]fter the

pleadings are closed—but early enough not to delay trial—a party may move for judgment on

the pleadings.” Fed. R. Civ. P. 12(c). The “moving party [must] demonstrate[ ] that no material

fact is in dispute and that it is entitled to judgment as a matter of law.” Schuler v.

PricewaterhouseCoopers, LLP,

(D.C. Cir. 2008) (quoting Peters v. Nat’l

R.R. Passenger Corp.,

(D.C. Cir. 1992)). Here, Plaintiff’s motion for

judgment on the pleadings is procedurally premature because Defendants have yet to file an

answer. See Black v. LaHood,

(D.D.C. 2012) (stating that a party may

seek judgment on the pleadings, which include a complaint and an answer, only after pleadings

are closed). Accordingly, Mr. Simon’s motion for judgment on the pleadings is denied.

IV. DEFENDANTS’ MOTION TO DISMISS

A. Legal Standard

“Under the doctrine of res judicata, ‘a final judgment on the merits of an action precludes

the parties or their privies from relitigating issues that were or could have been raised in that

action.’” Ashbourne v. Hansberry,

(D.D.C. 2017) (quoting Drake v.

Fed. Aviation Admin.,

(D.C. Cir. 2002)). The doctrine applies if a previous

1 Plaintiff also moves to “negotiate settlement upon the Default Fed. R. Civ. Pro. 55 judgment in absentia” under an unspecified rule. See Mot. Settlement, ECF No. 5. The Court denies Plaintiff’s motion for default judgment and, correspondingly, denies Plaintiff’s contingent motion as moot.

6 action “(1) involv[ed] the same claims or cause of action [as the current action], (2) between the

same parties or their privies, and (3) [resulted in] a final, valid judgment on the merits, (4) by a

court of competent jurisdiction.” Smalls v. United States,

(D.C. Cir. 2006)

(first citing Blonder-Tongue Labs, Inc. v. Univ. of Ill. Found.,

, 323–24 (1971); then

citing Comm’r of Internal Revenue v. Sunnen,

(1948)). Whether two cases

involve the same cause of action is determined by “whether they share the same ‘nucleus of

facts.’” Ashbourne,

(quoting Drake,

). And whether two

cases share the same nucleus of facts depends on “the facts surrounding the transaction or

occurrence which operate to constitute the cause of action, not the legal theory upon which a

litigant relies.” Page v. United States,

(D.C. Cir. 1984) (quoting Expert Elec.,

Inc. v. Levine,

, 1234 (2d Cir. 1977)).

“Res judicata may be raised in a 12(b)(6) motion to dismiss for failure to state a claim

when the defense appears on the face of the complaint and any materials of which the court may

take judicial notice.” Middleton v. U.S. Dep’t of Labor,

(D.D.C. 2018)

(quoting Sheppard v. District of Columbia,

, 5 n.3 (D.D.C. 2011)); see

also Hemphill v. Kimberly-Clark Corp.,

(D.D.C. 2008). And as noted

above, the Court may take judicial notice of opinions and orders from other proceedings. Covad

Commc’ns Co. v. Bell Atl. Corp.,

, 1222 (D.C. Cir. 2005); Does I through III v.

District of Columbia,

, 216–17 (D.D.C. 2002).

B. Analysis

There are two general aspects to Mr. Simon’s claims: the calculation of his benefits

award and the termination of his benefits award. Mr. Simon first argues that his award of

compensation was unlawfully terminated in 2018 and that such termination deprived him of his

7 property interest in violation of the First, Fifth, and Eighth Amendments. See Compl. at 1. Mr.

Simon subsequently asserts claims under the Administrative Procedure Act, Title VII, and the

Constitution regarding the amount of compensation he received for a back injury he sustained

while incarcerated. See

at 6–8. Defendants fail to distinguish between these claims, arguing

that Plaintiff’s action should be dismissed on the basis of claim preclusion, collateral estoppel,

because it is time-barred, and for improper venue. The Court will address Mr. Simon’s claims

separately because they are all properly dismissed but on different grounds.

1. Calculation of Benefits

Two of Mr. Simon’s claims pertain to the calculation of his compensatory payments

under the IACA and its implementing regulations. See

, et seq. This Court finds

that these claims are barred by the doctrines of claim preclusion and collateral estoppel. Mr.

Simon’s claims against FPI and Mr. Schwalb concerning the calculation of his monthly

compensation award are substantially the same as those he has asserted in prior suits. See Simon,

, at *4 (finding that Mr. Simon’s complaint against FPI and Mr. Schwalb

involved the same claim or cause of action as his complaint against the same defendants in a

previous suit lodged in this Court); Simon,

, at *1 (summarizing previous

cases in this district and dismissing Mr. Simon’s complaint against FPI and Mr. Schwalb as

“plainly barred by the doctrine of res judicata”); accord Simon,

, at *1

(noting that the case constituted “at least the seventh attempt” to bring claims against FPI and the

fifth attempt to bring claims against Mr. Schwalb). Moreover, Mr. Simon’s complaint is nearly

identical to one that he filed with the United States District Court for the District of

Massachusetts in 2018. See Simon,

, at *2 (determining that “[a]ny claim

8 concerning the calculation of Simon’s monthly compensation award is barred by the doctrine of

res judicata.”).

As noted in this Court’s 2016 opinion, a court in this district previously entered, and the

D.C. Circuit affirmed, a merit-based ruling for Defendants on the same issue. See Simon,

, at *4; Simon, 159 F.3d at 637. Accordingly, the adverse judgment was a final and

valid judgment on the merits. See Simon, 159 F.3d at 637. A United States District Court is a

court of competent jurisdiction for the purposes of claim preclusion. See id.; Thunder v. U.S.

Parole Comm’n,

(D.D.C. 2015).

Mr. Simon’s claims against DOJ and T. Speights are barred by collateral estoppel, even

though Mr. Simon’s claims are asserted against new defendants. As previously noted, Mr.

Simon’s claims regarding the validity of his inmate work injury award have been litigated prior

to the present case. Those courts have held that his compensation award was calculated correctly.

See Simon, 159 F.3d at 637; Simon,

, at *4. Even if the instant claims are

asserted against new defendants, Mr. Simon has had a full and fair opportunity to challenge his

inmate work injury compensation in earlier cases.

In the alternative, and to the extent that Mr. Simon attempts to assert a cause of action

relating to the calculation of his benefits based on new theories under the Constitution, Title VII,

or any of the various legal provisions listed in his complaint, his claims are time-barred. See

(a) (providing a six-year statute of limitations for civil actions against the United

States).

2. Termination of Benefits

Mr. Simon also asserts that the compensation payments he had received under the IACA

were terminated in 2018 “without notice or cause” and that such termination deprived him of his

9 property interest in violation of the First, Fifth, and Eighth Amendments. See Compl. at 1. Mr.

Simon brought a near identical claim in United States District Court for the District of

Massachusetts in 2018. See Simon,

, at *2. That court found that he had failed

to exhaust his administrative remedies and dismissed his claim without prejudice.

Defendants

now move to dismiss Mr. Simon’s claim on the bases of claim preclusion, collateral estoppel,

because it is time-barred, and, alternatively, for improper venue. See Mot. to Dismiss at 5, 9.

None of Defendants’ arguments for dismissal succeed when it comes to these claims.

Mr. Simon commenced this action in February 2020. For his claim relating to the

termination of his benefits in 2018, this is well within the six-year requirement set forth in

(a). See

(a) (“every civil action commenced against the United

States shall be barred unless the complaint is filed within six years after the right of action first

accrues”). Accordingly, Mr. Simon’s complaint was timely with regard to the termination of his

benefits. Moreover, Mr. Simon’s claim concerning the termination of his benefits is not barred

by collateral estoppel. Under the doctrine of collateral estoppel, “once a court has decided an

issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue

in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry,

(1980). But the termination of Mr. Simon’s compensation payments in 2018—and

any accompanying issues—have never been litigated prior to this case. See Simon,

, at *3 (“Simon must attempt to address the reason for the termination of his

compensation payments with the DOJ before seeking a judicial remedy.”)

Likewise, Mr. Simon’s claim that his compensation award was wrongfully terminated in

2018 was not nor could have been raised prior to that date, and is thus not barred by claim

preclusion. See Drake,

(“[A] final judgment on the merits of an action precludes

10 the parties or their privies from relitigating issues that were or could have been raised in that

action.”) (quoting Allen,

). While Mr. Simon indeed attempted to litigate the claim

in the United States District Court for the District of Massachusetts in 2018, it was dismissed

without prejudice. See Simon,

, at *2. The court found that Mr. Simon had

failed to exhaust his administrative remedies under the common law doctrine of administrative

exhaustion.

Accordingly, Mr. Simon was instructed to “address the reason for the termination

of his compensation payments with the DOJ before seeking a judicial remedy.”

The First

Circuit upheld this dismissal “primarily based on improper venue.” Simon,

, at

*1. Neither outcome—dismissal for failure to exhaust or for improper venue—would be a

judgment on the merits.

In the alternative, Defendants assert that venue is improper here. Under Section 1391(b),

a civil action may generally be brought in “a judicial district in which any defendant resides, if

all defendants are residents of the State in which the district is located,” or “a judicial district in

which a substantial part of the events or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is situated.”

(b). This

provision governs Mr. Simon’s claim under the APA. Title VII has its own venue provision

which provides four alternatives for where an action can be brought:

[1] in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, [2] in the judicial district in which the employment records relevant to such practice are maintained and administered, or [3] in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, [4] but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.

42 U.S.C. § 2000e-5(f)(3). When an objection to venue has been raised, the plaintiff has the

burden of establishing that the action was instituted in the proper forum. Williams v. GEICO

Corp.,

(D.D.C. 2011). 11 Defendants argue that because Mr. Simon does not reside in Washington, D.C. and “none

of the events giving rise to his claims occurred here,” he has not established that venue is proper

under Section 1391(b).2 Mot. to Dismiss at 9. Defendants do not, however, dispute Mr. Simon’s

assertion that all named Defendants reside in the District of Columbia. See Compl. at 2 (Mr.

Simon names DOJ, FPI, and two employees of FPI as parties in the action and provides a

Washington, D.C. address for each). Even if Mr. Simon were incorrect about the residence of

FPI and the individual defendants, he has also sued the Department of Justice. Under

(e), a civil action “in which a defendant is . . . an agency of the United States” may be

brought “in any judicial district in which . . . a defendant in the action resides.”

(e). Accordingly, because Mr. Simon brings this action against a federal agency located in

Washington, D.C., venue is proper under § 1391(b).

As for Title VII, Defendants have advanced no argument explaining why venue is

improper under Title VII’s venue provision, they have simply quoted the statute and asserted that

venue is not proper. While it is the plaintiff’s burden to establish that venue is proper, “the

defendant must present facts that will defeat the plaintiff’s assertion of venue” in order to win

dismissal on that basis. Crowley v. Napolitano,

(D.D.C. 2013) (quoting

Khalil v. L-3 Commc’ns Titan Grp.,

(D.D.C. 2009)). Defendants

provide only a conclusory assertion and a citation to 42 U.S.C. § 2000e-5(f)(3). Mot. Dismiss at

9 n.1. While Mr. Simon’s complaint does not articulate the basis for venue he has given a

2 Defendants’ reliance on Massachusetts case law is misplaced and their argument does not account for the fact that the Department of Justice is a defendant properly sued here. See Mot. to Dismiss at 9. Indeed, Defendants appear to have recycled language from a motion against Mr. Simon filed in the United States District Court for the District of Massachusetts in 2018. See Motion to Dismiss, Simon v.

(D. Mass. Oct. 2, 2018), ECF No. 7.

12 Washington, D.C. address for each defendant, and it stands to reason that the termination of his

benefits may have occurred in the district or that relevant records may be maintained here.

Without any contrary facts from Defendants, the Court will not assume venue is improper based

on a bare conclusory statement, especially given that it seems plausible that venue is proper.

Because they fail to identify any proper basis for dismissal of Mr. Simon’s claims regarding the

termination of his benefits, Defendants’ Motion to Dismiss is denied with regard to those claims.

V. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Disqualification (ECF No. 7), Motion

for Default Judgment (ECF No. 2), and Motion for Judgment on the Pleadings (ECF No. 6) are

all DENIED. Plaintiff’s Motion to Negotiate Settlement Upon Default (ECF No. 5), is DENIED

AS MOOT. Defendants’ Motion to Dismiss (ECF No. 3) Mr. Simon’s complaint is GRANTED

IN PART AND DENIED IN PART.

An order consistent with this Memorandum Opinion is separately and contemporaneously

issued.

Dated: August 7, 2020 RUDOLPH CONTRERAS United States District Judge

13