UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILLIAM J.R. EMBREY,

Plaintiff,

v. Civil Action No. 1:21-cv-0235 (CJN)

THE UNITED STATES OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION

Proceeding pro se, William J.R. Embrey filed this lawsuit against the United States and the

Director of the Federal Bureau of Prisons claiming that the alleged failure to credit him 508 days

of jail time violated his constitutional and common law rights. See generally Compl., ECF No. 1.

He seeks compensatory relief under Bivens v. Six Unknown Named Agents,

(1971),

and its progeny for the alleged violations of his rights under the Fourth, Fifth, and Sixth

Amendments, as well as under the Federal Tort Claims Act,

, based on the

common law torts of false imprisonment and negligence. See generally Compl. Defendants have

moved to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and

12(b)(6). See Defendants’ Mot. to Dismiss (“Defs.’s Mot.”), ECF No. 11. For the reasons that

follow, the Court grants the Defendants’ motion.

1 I. Factual and Procedural Background1

In 1968, Embrey stole 793 dollars from Webbers Falls State Bank located in Muskogee

County, Oklahoma. See Embrey v. United States,

(10th Cir. 2007)

(Gorsuch, J.). The United States District Court for the Eastern District of Oklahoma sentenced

him to eight years of incarceration.

Shortly after his release, he “committed another bank

robbery.”

This time, the United States District Court for the Western District of Missouri

sentenced him to a 40-year term of confinement. See Embrey v. Hershberger,

(8th Cir. 1997) (Lay, J., dissenting). Embrey’s 40-year sentence commenced on September 19,

1980.

On August 14, 1997, while Embrey was serving his 40-year sentence, a federal court in

North Dakota released him from custody pursuant to an appeal bond. See Embrey v. Norris, No.

0:15-CV-45-HRW,

at *3 (E.D. Ky. July 12, 2016). The next day, the Federal

Bureau of Prisons placed Embrey’s sentence computation into inoperative mode (i.e. the clock on

Embrey’s 40-year sentence stopped running).

The Eighth Circuit affirmed Embrey’s

conviction a couple months later.

About a year after that, a federal court in North Dakota

granted the government’s motion to revoke Embrey’s bond.

Authorities arrested Embrey in

December 1998, and on December 6, 1998, the Bureau resumed calculating the 40-year sentence

he had received in 1980.

In the same month that Embrey returned to prison, federal prosecutors in Missouri charged

him as a felon in possession of a firearm for an offense committed during his year or so out of

1 The Court has relied in large part on Embrey v. Norris, No. 0:15-CV-45-HRW,

(E.D. Ky. July 12, 2016) for the facts and procedural history here. In that case, Embrey brought the same claims and similar arguments as he does here. There, the court denied Embrey’s

petition for a writ of habeas corpus for failing to exhaust his administrative remedies.

2 prison.

In April 2000, Embrey pleaded guilty to violating 18 U.S.C. 922(g).

The court

sentenced Embrey to 262 months of incarceration and ordered Embrey’s firearm sentence to run

concurrently with his 40-year sentence.

According to the Bureau’s Sentence Computation Manual, a sentence imposed for an

offense that occurred on or before November 1, 1987—such as Embry’s 40-year sentence imposed

in 1980—cannot be aggregated with a sentence imposed for an offense that occurred on or after

November 1, 1987—such as his 262-month sentence imposed in 2000.

The Bureau therefore

prepared a separate sentence computation for the latter offense and computed his 262-month

firearm sentence as commencing on April 24, 2000, the date the court imposed the sentence.

. Embrey received no prior custody credit against the 262-month sentence for the period of

incarceration between December 6, 1998 and April 24, 2000.

The Bureau instead applied the

508 days of credit to his 40-year sentence. Id.; see also

(b) (specifying that a

defendant cannot receive “credit toward the service of a term of imprisonment” where the

defendant has already received credit for that time “against another sentence”).

On September 27, 2007, the Bureau released Embrey from his 40-year sentence. See

Embrey v. Norris,

at *4. He remained in the Bureau’s custody, however, on

his 262-month firearm sentence.

The Bureau ultimately released Embrey from custody on the

firearm sentence on November 9, 2018. See Compl. ¶ 20.

Embrey filed this lawsuit at the beginning of 2021. See generally

Based on a charitable

reading of his Complaint, Embrey seems to name as Defendants the United States as well as the

Director of the Federal Bureau of Prisons, Michael Carvajal, in both his official and individual

capacities.

As Embrey sees things, the Defendants failed to credit him with 508 days of jail

credit on his 262-month firearms sentence, resulting in his wrongful imprisonment from June 24,

3 2017, through November 9, 2018.

He seeks relief under Bivens v. Six Unknown Named Agents,

(1971), and its progeny for alleged violations of his rights under the Fourth, Fifth,

and Sixth Amendments, as well as under the Federal Tort Claims Act based on the common law

torts of false imprisonment and negligence. Id.2 Defendants have moved to dismiss the Complaint

under Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6). See Defs.’s Mot.

II. Standards of Review

Civil Rule 12(b)(1). Federal Rule of Civil Procedure 12(b)(1) requires dismissal of a

complaint if the court lacks subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). When ruling

on a motion filed under Rule 12(b)(1), the court must “treat the complaint’s factual allegations as

true” and must afford the plaintiff “the benefit of all inferences that can be derived from the facts

alleged.” Delta Air Lines, Inc. v. Export–Import Bank of U.S.,

(D.D.C.

2015) (quotation omitted). Although the court need not accept inferences unsupported by the

factual allegations, 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.” XP Vehicles, Inc.

v. Dep’t of Energy,

(D.D.C. 2015) (quotation omitted).

Civil Rule 12(b)(3). Federal Rule of Civil Procedure 12(b)(3) requires dismissal of a

complaint if it was filed in the improper venue. See Fed. R. Civ. P. 12(b)(3). When a plaintiff

brings suit in an improper venue, the district court “shall dismiss [the case], or if it be in the interest

of justice, transfer such case to any district or division in which it could have been brought.” 28

2 Ballard v. Holinka,

(D.D.C. 2009) (quotation omitted) (“A Bivens action is the federal analog to suits brought against state officials under . . .

.”).

(a). In deciding whether venue is proper, courts “accept all well-pleaded factual

allegations as true and draw all reasonable inferences in favor of the plaintiff.” Herbert v. Sebelius,

(D.D.C. 2013). The Court need not, however, accept the plaintiff’s legal

conclusions as true, and it may consider material outside of the pleadings.

Civil Rule 12(b)(6). Federal Rule of Civil Procedure 12(b)(6) requires dismissal of a

complaint if it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

To survive a motion to dismiss filed under Rule 12(b)(6), a plaintiff must plead “facts to state a

claim of relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007).

A court treats the “complaint’s factual allegations as true and afford[s] the plaintiff the benefit of

all inferences that can be derived from the facts alleged.” Atlas Brew Works, LLC v. Barr,

(D.D.C. 2019) (quotation omitted). Although the court accepts all well pleaded

facts in the complaint as true, “[f]actual allegations must be enough to raise a right to relief above

the speculative level.” Twombly,

. The claim to relief must be “plausible on its

face,”

meaning that the plaintiff must have pleaded “factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v.

Iqbal,

(2009).3

A. Defendants’ Sovereign Immunity Defense under Rule 12(b)(1)

“Absent a waiver, sovereign immunity shields the Federal Government and its agencies

from suit.” F.D.I.C. v. Meyer,

(1994). Although there is some question whether

the sovereign immunity of the United States presents a subject-matter jurisdiction question, see

3 “In determining whether a complaint fails to state a claim,” courts in the typical case “consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch.,

(D.C. Cir. 1997). The Court of Appeals, moreover, has instructed district courts to use a more lenient approach when evaluating a motion to dismiss a pro se plaintiff’s complaint. See Brown v. Whole Foods Mkt. Grp., Inc.,

(D.C. Cir. 2015) (noting that “a district court errs in failing to consider a pro se litigant’s complaint ‘in light of’ all filings, including filings responsive to a motion to dismiss”).

5 Mowrer v. United States Dep’t of Transportation,

(D.C. Cir. 2021) (Katsas, J.,

concurring);

(Randolph, J., concurring), precedent dictates that the Court treat the lack

of a clear waiver of federal sovereign immunity as a jurisdictional defect, see Meyer,

(holding that federal sovereign immunity is jurisdictional and that the United States “has not

rendered itself liable under [the Federal Tort Claims Act] for constitutional tort claims”); Straw v.

United States,

, 566 (D.C. Cir. 2021) (“The district court properly dismissed the

case for lack of subject matter jurisdiction because appellant’s claims against the United States for

monetary damages under the Federal Tort Claims Act based on constitutional violations are barred

by sovereign immunity.”).4 A court therefore lacks subject matter jurisdiction to grant relief absent

clear congressional consent to permit a claim against the United States or federal officers acting in

their official capacity. United States v. Mitchell,

(1983) (“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.”); see also Kim v. United States,

(D.C. Cir. 2011)

(holding that “no Bivens claim is available against [federal officers] in their official capacities.”).

In his Complaint, Embrey alleges both common law tort and constitutional claims arising

from the Bureau’s decision not to credit 508 days of custody towards his 262-month firearm

sentence imposed in 2000. See generally Compl. A generous reading of the Complaint suggests

that Embrey targets for compensatory relief the United States, the Bureau’s Director in his official

capacity, and the Director in his individual capacity.

The Court, however, lacks subject matter

jurisdiction over Embrey’s claims against the United States and the Director in his official capacity

4 The Court acknowledges the distinction between federal and state sovereignty immunity and declines, as it has no reason to do so, to unpack the legal significance of the distinction here. See generally PennEast Pipeline Co., LLC v. New Jersey,

, 2264 (2021) (Gorsuch, J., dissenting); Caleb Nelson, Sovereign Immunity As A Doctrine of Personal Jurisdiction,

(2002).

6 because sovereign immunity bars those claims. Jordan v. Quander,

(D.D.C.

2012) (ruling that “the Court lacks subject matter jurisdiction to entertain plaintiff’s claims for

money damages against [the United States, the Court Services and Offender Supervision Agency,]

or any of its employees sued in their official capacities”).

B. Defendants’ Improper Venue Defense under Rule 12(b)(3)

Venue as to Embrey’s Claims under the Federal Torts Claim Act. Under the Federal Tort

Claims Act, venue is proper in the judicial district where the plaintiff resides or where “the act or

omission complained of occurred.”

(b). The judicial district “wherein the act . .

. occurred” is the district in which “sufficient activities giving rise to the plaintiff’s cause of action

took place.” Sanchez ex rel. Rivera-Sanchez v. United States,

(D.D.C.

2009) (quotation omitted). Courts in this district must examine venue issues with a careful eye to

guard against the possibility that plaintiffs might “manufacture venue in the District of Columbia,”

Cameron v. Thornburgh,

(D.C. Cir. 1993). The “mere involvement on the part

of federal agencies who are located in [the District] is not determinative” of venue. Spotts v. United

States,

(D.D.C. 2008) (quotation omitted).

Venue is improper in this District for Embrey’s claims under the Federal Torts Claim Act

because he neither resides in the District nor did the acts giving rise to his claims have a sufficient

connection to the District. First off, Embrey lives in North Dakota; not the District. See Compl.

¶ 7. That closes off the first avenue to achieve venue. Second, the actions complained of here

occurred outside of the District. A federal court in the Western District of Missouri sentenced

Embrey to 262 months incarceration for unlawful possession of a firearm as a felon; he served his

time outside of the District; and he does not allege that the failure to credit his sentence occurred

here. Indeed, Embrey previously brought a pro se petition for writ of habeas corpus in the Eastern

7 District of Kentucky, against the warden of the prison where he was incarcerated, contending that

the Bureau had failed to credit his sentence for the same 508 days at issue here. See Embrey v.

Snyder-Norris, No. 0:15-CV-45-HRW,

(E.D. Ky. Nov. 24, 2015). That all

means that “any injuries that [Embrey] suffered did not occur in this district as he was never

incarcerated here.” Zakiya v. United States,

(D.D.C. 2003). Whatever

action the Bureau may have taken in the District that led to Embrey’s alleged false imprisonment

does mean that District represents the proper venue.

Embrey pushes back, arguing that “venue is proper in the District Columbia [because] the

United States is centered in Washington, D.C., and Defendant Director of [the Bureau] is located

in Washington, D.C., [and] each are legally bound and obligated to ensure that all federal prisoners,

including Plaintiff, are released from prison when their sentence, counting good time and pre-

sentence jail time, is legally completed.” Compl. ¶ 5. Again, however, courts in this District cast

a wary eye toward these type of venue arguments because plaintiffs can easily manufacture venue

by naming high government officials and agencies as defendants. See Cameron,

.

That explains why courts have found that when “the only real connection [the] lawsuit has to the

District of Columbia is that a federal agency headquartered here is charged with generally

regulating and overseeing the [administrative] process, venue is not appropriate in the District of

Columbia.” Al-Ahmed v. Chertoff,

(D.D.C. 2008) (quotation omitted). In

short, a government official or a government agency’s attenuated or insignificant involvement

does not support venue in the District. See Marks v. Torres,

(D.D.C.

2008).

Venue as to Embrey’s Bivens Claims. Venue is likewise lacking for Embrey’s

constitutional claims brought under Bivens. A cause of action under Bivens and its progeny may

8 be brought in a judicial district where: (1) any defendant resides if all defendants reside in the

same state; (2) a substantial part of the events or omissions giving rise to the claim occurred; or

(3) any defendant may be found if there is no district in which the action may otherwise be brought.

(b); see Coltrane v. Lappin,

(D.D.C. 2012). As to the

first, no evidence suggests that all Defendants reside in the District. As to the second, none of the

alleged events giving rise to Embrey’s claims took place in the District. Embrey’s allegations arise

from conduct that occurred while incarcerated outside of the District. As to the third, Embrey

provides no argument as to why he cannot file this lawsuit in a district where he once was

incarcerated. Adding that all up means that the District does not present a proper venue for

Embrey’s Bivens claims.

C. Defendants’ Failure to State a Claim Defense under Rule 12(b)(6)

It is well settled that “Bivens claims cannot rest merely on respondeat superior.” Simpkins

v. D.C. Gov’t,

(D.C. Cir. 1997). A plaintiff instead must allege the personal

involvement of the defendant in the events that gave rise to the plaintiff’s claim. Id.; Johnson v.

United States,

(D.D.C. 2009) (dismissing a Bivens claim against the Director

of the Bureau because the “Director’s supervisory role as the head of the [Bureau] does not render

him personally liable for the alleged wrongful acts of the [Bureau’s] employees”).

A liberal reading of Embrey’s Complaint suggests that he has sued the Director of the

Bureau, Carvajal, in his official and his individual capacity. See generally Compl. In particular,

Embrey claims that the Director should be held liable because he knew that authorities were

holding Embrey past his proper release date and that he failed to act to rectify the situation. Compl.

¶¶ 3–4, 37–38. Nowhere, however, does Embrey allege that Director Carvajal calculated or was

involved in calculating Embrey’s sentence computation. Because Embrey cannot rely on

9 respondeat superior to sue Director Carvajal under Bivens, the Court concludes that Embrey has

failed to plead factual allegations sufficient to state a claim under Bivens against the Director.

Even assuming that Embrey did state a viable claim against Director Carvajal in his

individual capacity for failing to release Embrey on his alleged proper release date, qualified

immunity would shield the Director from suit. “Qualified immunity attaches when an official’s

conduct does not violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” White v. Pauly,

(2017) (per curiam). For a plaintiff

to strip an officer of qualified immunity, then, the plaintiff must allege facts sufficient to “show

the officer’s conduct violated a constitutional right” and that the violated “right was clearly

established” at the time the alleged conduct took place. Saucier v. Katz,

, 201 (2001);

Pearson v. Callahan,

, 235–36 (2009) (holding that courts have the discretion to

decide “which of the two prongs of the qualified immunity analysis [to address] first in light of the

circumstances in the particular case at hand”). Embrey fails to allege facts adequate to support his

claim that Director Carvajal infringed upon his constitutional rights or that the Director violated

clearly established law in so acting.

One last note. Even if Embrey could get past sovereign immunity and venue defects with

regards to his claims under the Federal Tort Claims Act and his claims under Bivens, his claims

would fail under Rule 12(b)(6) because he lodged them past the applicable statute of limitations

periods. Under the Federal Tort Claims Act, a tort claim against the federal government is barred

unless the plaintiff presents the claim in writing to the appropriate federal agency “within two

years after such claim accrues.”

(b); United States v. Kubrick,

(1979). If the agency denies the claim, the plaintiff has “six months after the date of mailing . . .

of notice of final denial by the agency to which it was presented” to file an action in federal court.

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(b). On October 5, 2015, the Bureau denied Embrey’s claim. See Embrey,

, at *2. Embrey failed to bring this action within six months of the Bureau’s decision,

opting instead to file this action on January 22, 2021, which means he brought his claims under

the Federal Tort Claims Act outside of the statute of limitations period. See Compl. Embrey’s

claims under Bivens fare no better. District law governs the statute of limitations period for claims

under Bivens brought in this Court. See Pierce v. Mattis,

, 12 n.2 (D.D.C. 2017).

Though questions surround whether a one-year or a three-year statute of limitations period govern

claims akin to Embrey’s claims, Jefferson v. Harris,

(D.D.C. 2016),

Embrey’s claims miss the mark under either a one or a three-year limitation period. He filed this

lawsuit on January 22, 2021, more than five years after the Bureau denied his claims and more

than three years after his alleged mandatory release date of June 24, 2017. See Compl. ¶ 16.

V. Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED. An Order will

be entered contemporaneously with this Memorandum Opinion.

In the Court’s view, Embrey’s suit and its dismissal should qualify as a strike as described

in

(g). See Simons v. Washington,

(6th Cir. 2021).

DATE: February 9, 2022 CARL J. NICHOLS United States District Judge

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