UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) JIEMIN BAI ) ) Plaintiff, ) ) ) v. ) Civil Action No. 21-cv-390 (TSC) ) MATTHEW M. GRAVES, United States ) Attorney of the District of Columbia, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

Plaintiff Jiemin Bai filed this civil action, pro se, alleging tort injuries pursuant to the

Federal Tort Claims Act (“FTCA”), Administrative Procedure Act (“APA”) violations, and civil

rights violations under

and 1983 against the U.S. Attorney for the District of

Columbia in his official capacity, and former U.S. Attorney Jessie Liu in her official and

individual capacities. Several months later, Ning Ye appeared as counsel on Plaintiff’s behalf.

Notice of Appearance, ECF No. 10. Shortly thereafter, Defendants filed a motion to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the court dismissed the

case without prejudice. See Order Granting Mot. to Dismiss, ECF No. 17. Plaintiff now seeks

leave to file a First Amended Complaint (“FAC”), Corrected Mot. for Leave to File First Am.

Compl., ECF No. 25. Plaintiff claims that if granted leave, he intends to add as a defendant D.C.

Department of Corrections director Thomas N. Faust in his official capacity, and to bring

additional claims against Defendants under the Bivens doctrine and the Torture Victim Protection

Act (“TVPA”). See FAC ¶¶ 47–52, ECF No. 25-3. For the reasons set forth below, the court will

DENY Plaintiff’s Motion.

Page 1 of 7 I. LEGAL STANDARD

Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint “shall be

freely given when justice so requires.” See Firestone v. Firestone,

(D.C. Cir.

1996). However, courts must consider “undue delay, bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment,

etc.” Foman v. Davis,

(1962). An amendment would be futile and should be

denied if it merely restates the same facts as the original complaint in different terms, reasserts a

claim on which the court previously ruled, fails to state a legal theory, or could not withstand a

motion to dismiss. See Robinson v. Detroit News, Inc.,

(D.D.C. 2002);

see also Aguiar v. Drug Enf’t Admin.,

, 1113–14 (D.C. Cir. 2021) (“The district

court properly denies a motion to amend a complaint as futile if the proposed claim would not

survive a motion to dismiss.”).

II. ANALYSIS

Plaintiff’s FAC asserts seven claims against three government official defendants, none

of which can succeed. Plaintiff’s third, fourth, fifth, and sixth claims under the FTCA again fail

to plead administrative exhaustion. See Am. Mem. Op. at 2, ECF No. 16. Plaintiff’s seventh

claim, brought under the APA, likewise does not cure the Complaint’s deficiencies. Id. at 3.

The second claim, asserting civil and constitutional right violations under Sections 1981, 1983,

and Bivens v. Six Unknown Agents of Federal Bureau of Narcotics,

(1971), does

not adequately plead any of those causes of action. FAC ¶¶ 73–77. Lastly, Plaintiff’s first claim

alleges injuries under the TVPA but does not allege that Defendants acted under color of foreign

law, as the statute requires.

Page 2 of 7 A. Federal Tort Claims Act Claims

The FAC’s FTCA claims are futile for reasons the court has already explained. Under

the FTCA, a federal court only acquires jurisdiction over a tort action against a federal agency

and its officers after the plaintiff has exhausted the available administrative remedies by

submitting his tort claim to the agency, which must provide a final written denial of the claim.

(a). Informal complaints do not suffice. Davis v. United States,

(D.D.C. 2013). Further, because the FTCA’s exhaustion requirement is a jurisdictional

prerequisite, the plaintiff bears the burden of pleading exhaustion of administrative remedies to

establish the court’s jurisdiction. See Fed. R. Civ. P. 8(a)(1). Failure to do so requires dismissal

of the corresponding claims. See McNeil v. United States,

(1993); see also

Smith v. Clinton,

(D.C. Cir. 2018).

As in the original Complaint, the FAC asserts several tort claims against federal officers.

FAC ¶¶ 79–89. Again, however, the FAC alleges no facts showing that Plaintiff exhausted his

administrative remedies. Indeed, Plaintiff acknowledges—despite the fact that he is now

represented by counsel—that he is “uninformed” about available administrative remedies, FAC

at 15, and has only attempted to seek administrative relief by informally sending “express mail”

to the U.S. Department of Justice, FAC ¶ 56. That does not fulfill Plaintiff’s obligation to plead

administrative exhaustion. Nonetheless, he argues that his actions were sufficient given his pro

se status at the time he sent the mail.

But the FTCA does not make any exception for pro se

litigants. And the Supreme Court has specifically held that a litigant’s pro se status does not

excuse his failure to timely file an administrative claim before bringing an FTCA action in

federal court. See McNeil,

. Accordingly, Plaintiff’s tort claims could not

withstand a motion to dismiss for lack of jurisdiction and an amendment would be futile.

Page 3 of 7 B. Administrative Procedure Act Claims

Plaintiff’s revised APA claim fares no better. The court previously dismissed it because

the Complaint failed to proffer specific allegations demonstrating that Defendants’ prosecution

of him was illegal, irregular, or violated the Constitution. See Am. Mem. Op. at 3. The

proposed FAC merely restates the same conclusory assertions as the original Complaint in

different terms. See FAC ¶¶ 78, 91. Moreover, an APA claim “must challenge a final action of

an agency.” Indep. Petroleum Ass’n of America v. Babbitt,

(D.C. Cir. 2001).

Plaintiff’s amended claim does not. Because it would not survive a motion to dismiss, the court

will deny leave to amend it.

C. Civil and Constitutional Rights Claims

The court dismissed Plaintiff’s Section 1981 and 1983 claims because the Complaint

failed to show that Defendants Graves and Liu—federal actors—acted under color of state law,

as those statutes require. See Am. Mem. Op. at 3 (citing

, 1983); see, e.g.,

Settles v. U.S. Parole Comm’n,

(D.C. Cir. 2005). The proposed FAC is

similarly deficient, rendering any other amendments on those claims futile. See FAC ¶¶ 39, 45,

63, 76. Plaintiff does seek to add Faust—a D.C. official—as a defendant to these claims, but

they would not withstand a motion to dismiss either. A Section 1981 claim requires

discrimination in the making and enforcing of contracts, and Plaintiff has not alleged the

existence of a contract. See U.S.C. 42 § 1981. And the Section 1983 claim will necessarily fail

because the FAC does not allege that Faust’s “own individual actions[] violated the

Constitution.” See Ashcroft v. Iqbal,

(2009). Rather, Plaintiff seeks to hold

Faust liable for the constitutional violations committed “by and through [Faust’s] inferior wards

of the D.C. Detention Facilities where Plaintiff was wrongfully jailed.” FAC ¶ 51; see also

Page 4 of 7 ¶ 48 (“Defendant Faust had inescapable accountability and liability” because he “exercised

oversight and supervision of all Detention facilities” where Plaintiff’s claims arose). Because

“vicarious liability is inapplicable to . . . § 1983 suits,” Iqbal,

, the FAC’s

allegations do not support a § 1983 claim against Faust.

In addition, Plaintiff’s FAC asserts a Bivens claim against former U.S. Attorney Liu.

FAC ¶¶ 74–77; see Bivens,

. It alleges that Liu violated Plaintiff’s First

Amendment rights during his criminal prosecution. See U.S. v. Bai, Case No. 19-cr-34-RCL,

ECF No. 66 at 1 (D.D.C. Dec. 13, 2019). However, this claim cannot succeed because

government prosecutors enjoy absolute immunity for actions taken in their advocatory capacity.

See Imbler v. Pachtman,

(1976). That immunity extends to activities

“intimately associated with the judicial phase of the criminal process.”

at 430–431; see also

Buckley v. Fitzsimmons,

, 270–71 (1993) (discussing the line that divides the

advocatory activities of a prosecutor that are entitled to absolute immunity from the investigatory

and administrative functions that are entitled to qualified immunity); Bundy v. Sessions,

(D.D.C. 2019) (absolute prosecutorial immunity barred plaintiff’s claims of

retaliatory prosecution for his exercise of First Amendment rights).

Liu was a prosecutor at the time of Plaintiff’s arrest and detention. FAC ¶ 35. Plaintiff

alleges that she violated his First Amendment rights through retaliatory prosecution, “knowing

Plaintiff was exercising his Constitutional Rights to protest.” Id. ¶ 74. He seeks damages for

what he views as a “ruthless prosecution.” Id. ¶ 76. Specifically, he alleges that Liu selectively

prosecuted him and other Chinese protestors to please “patrons” within the Chinese Communist

Party. See id. ¶¶ 25, 28. These alleged actions were performed in Liu’s capacity as a prosecutor.

See Buckley,

. As a result, prosecutorial immunity insulates her from liability for

Page 5 of 7 her “unquestionably advocatory decision” to prosecute Plaintiff, Moore v. Valder,

(D.C. Cir. 1995), and the proposed amendment raising a Bivens claim against Liu would be

futile.

D. Torture Victim Protection Act Claim

Lastly, Plaintiff requests leave to sue under the TVPA, alleging that Defendants Liu and

Faust subjected him to various acts of “soft-forms of tortures,” including sleep deprivation,

exposure to cold temperatures, denial of Halal food despite Plaintiff’s religious beliefs as a

Muslim, and other forms of inhumane treatment. FAC ¶ 64. But Plaintiff cannot bring claims

under the TVPA because the Act provides a cause of action only against foreign, not U.S.,

officials.

The TVPA authorizes victims of torture and extrajudicial killings in violation of

international law to sue certain individuals acting “under actual or apparent authority, or color of

law, of any foreign nation.”

, note § 2(a); see also Nestle USA, Inc. v. Doe,

, 1937 (2021). In Doe v. Rumsfeld, this Circuit reaffirmed that the TVPA does “not

include as possible defendants either American government officers or private U.S. persons.”

(D.C. Cir. 2012) (quoting Saleh v. Titan Corp.,

(D.C. Cir.

2009)). Here, Defendants are U.S. rather than foreign officials. FAC ¶¶ 33, 35, 52. Plaintiff’s

proposed FAC fails to allege that Defendants acted under color of foreign law and therefore

could not withstand a motion to dismiss. Consequently, this amendment would be futile and the

court will deny leave to file it.

Page 6 of 7 III. CONCLUSION

For these reasons, the court concludes that granting leave to amend would be futile, as

none of the claims in the FAC could succeed. The court will therefore DENY Plaintiff’s Motion

for Leave to File First Amended Complaint, ECF No. 25. A corresponding Order will

accompany this Memorandum Opinion.

Date: July 21, 2023

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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