UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHERMAN G. HOLLEY,

Plaintiff, Civil Action No. 24 - 1536 (LLA) v. 1 UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION

Sherman G. Holley, a pretrial detainee proceeding pro se and in forma pauperis, brought

this suit in the Superior Court of the District of Columbia against the U.S. Marshals Service

(“USMS”), alleging that multiple USMS officers assaulted him while conducting a security search

and escorting him through the Moultrie Courthouse. ECF No. 1-1. The United States substituted

itself as the defendant, ECF No. 1 ¶¶ 3-4, removed the action to this court, id., and subsequently

moved to dismiss the complaint, ECF No. 12. For the reasons explained below, the court will grant

the United States’ motion and dismiss the complaint.

I. FACTUAL BACKGROUND

The following factual allegations drawn from Mr. Holley’s complaint, ECF No. 1-1, are

accepted as true for the purpose of evaluating the motion before the court, Jerome Stevens Pharms.,

Inc. v. FDA,

(D.C. Cir. 2005). In May 2023, while Mr. Holley was in the

custody of the D.C. Department of Corrections, a team of U.S. Marshals transported him to the Moultrie Courthouse. ECF No. 1-1, at 4.1 Upon arrival, the Deputy Marshals conducted a security

search.

One of the Deputy Marshals “slid[] the side of his hand in between [Mr. Holley’s] anals

[sic]” in an “act of sexual misconduct.”

Mr. Holley further alleges that the Deputy Marshals

told him to remove a splint on his right hand that he needed to protect a fracture. Id. at 4, 6.

Mr. Holley refused and “told them that they could call the[] medical [staff] to remove [it]” instead.

Id. at 4. “One of the U.S. Marshal[s] became very upset” and accused Mr. Holley of trying to be

“smart.” Id. When escorting Mr. Holley back to the D.C. Department of Corrections, “4 or 5

Marshals” “assault[ed]” him while he “was still in full body and leg[] chains.” Id. Mr. Holley

suffered injuries to his lower back and feet. Id. at 5. He complained to corrections officers, but he

was denied medical treatment until later in the week. Id.

II. PROCEDURAL HISTORY

In April 2024, Mr. Holley sued the USMS in Superior Court. ECF No. 1-1; Complaint,

Holley v. U.S. Marshal, 2024 CAB 2245 (D.C. Super. Ct. Apr. 11, 2024). Attempting to proceed

under

and 1988, he alleges excessive use of force and cruel and unusual

punishment in violation of his Fourth, Eighth, and Fourteenth Amendment rights.2 See ECF No. 1-1,

1 Because there is only one “U.S. Marshal” for the Superior Court, it appears that Mr. Holley is referring to the Deputy U.S. Marshals who carry out prisoner transport; accordingly, the court will refer to them as “Deputy Marshals.” 2 Mr. Holley initially framed his complaint as simply alleging an “assault.” ECF No. 1-1, at 4-5. In his opposition to the United States’ motion to dismiss, Mr. Holley clarified that the bases for his claims were Section 1981, Section 1988, and the Constitution. ECF No. 16, at 5. Because this court liberally construes pro se filings, it may “consider[] supplemental material filed by a pro se litigant in order to clarify the precise claims being urged—including facts set forth in a plaintiff’s opposition to a motion to dismiss.” Spence v. U.S. Dep’t of Veterans Affs.,

(D.C. Cir. 2024) (internal quotation marks omitted) (quoting Greenhill v. Spellings,

(D.C. Cir. 2007)).

2 at 4-5, 7-8; ECF No. 16, at 6. Mr. Holley seeks $300 million in compensatory damages. ECF

No. 1-1, at 10.

In May 2024, the United States filed a certification under the Westfall Act,

, attesting that the “United States Marshal referenced in the Complaint was acting within

the scope of his employment as an employee of the United States of America at the time of the

alleged incidents.” ECF No. 1-2. The United States was thus automatically substituted as the

named defendant. See

(d)(2); ECF No. 1, at 2.

The United States then removed the case to this court.

(a)(1), 1446,

2679(d)(2); ECF No. 1. In its Notice of Removal, the United States stated that “[t]he U.S. Attorney’s

Office has not yet been served with process in this matter.” ECF No. 1 ¶ 1.

In August 2024, Mr. Holley requested subpoenas to issue to the Superior Court for footage

of the alleged May 2023 incident. ECF No. 10, at 3; ECF No. 11. Shortly thereafter, the United

States moved to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a

claim. ECF No. 12. It also opposed the subpoena request as premature. ECF No. 13. Both matters

are now fully briefed. ECF Nos. 13, 16, 19.

III. LEGAL STANDARDS

“Federal courts are courts of limited jurisdiction,” and it is generally presumed that “a cause

lies outside [of] this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994). Under Federal Rule of Civil Procedure 12(b)(1), the court must dismiss an action

unless the plaintiff can establish, by a preponderance of the evidence, that the court possesses

subject-matter jurisdiction. Green v. Stuyvesant,

(D.D.C. 2007). In

reviewing such a motion, the court “is not limited to the allegations set forth in the complaint” and

3 “may consider materials outside the pleadings.” Morrow v. United States,

(D.D.C. 2010) (quoting Jerome Stevens Pharms.,

).

Under Rule 12(b)(6), the court will dismiss a complaint that does not “contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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

In

evaluating a motion under Rule 12(b)(6), a court accepts all well-pleaded factual allegations in the

complaint as true. See Erickson v. Pardus,

(2007); see also Atherton v. D.C. Off.

of the Mayor,

(D.C. Cir. 2009). Although the plausibility standard does not

require “detailed factual allegations,” it “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly,

. Nor will

“‘naked assertion[s]’ devoid of ‘further factual enhancement’” suffice. Iqbal,

(alteration in original) (quoting Twombly,

).

Pleadings by pro se litigants are generally held “to less stringent standards than formal

pleadings drafted by lawyers.” Haines v. Kerner,

(1972) (per curiam). This

liberal construction “is not, however, a license to ignore the Federal Rules of Civil Procedure.”

Sturdza v. United Arab Emirates,

(D.D.C. 2009). Thus, “even a pro se

plaintiff must meet his burden of proving subject matter jurisdiction to survive a Rule 12(b)(1)

motion to dismiss.” Smith v. Scalia,

(D.D.C. 2014). Likewise, “the complaint

must still ‘present a claim on which the Court can grant relief’” in order to defeat a motion to

dismiss under Rule 12(b)(6).

(quoting Budik v. Dartmouth-Hitchcock Med. Ctr.,

(D.D.C. 2013)).

4 IV. DISCUSSION

A. Insufficient Service of Process

The United States avers in a footnote of its motion to dismiss that Mr. Holley never properly

effected service, but it did not affirmatively raise that as a basis for dismissal due to the procedural

posture of the case. ECF No. 12-1, at 1 n.1. Specifically, Mr. Holley sought and was granted in forma

pauperis status in the Superior Court, see Appl. to Proceed Without Prepayment of Costs, Holley,

2024 CAB 002245 (D.C. Super. Ct. Apr. 11, 2024), which thereby required the Clerk of Court for the

Superior Court to attempt service on Mr. Holley’s behalf, see D.C. Super. Ct. R. Civ. P. 54-II(i)(1).

It appears from the docket that the Superior Court initiated service, see Compl., Summons, and

I.O. with Acknowledgment Form Mailed to Defs., Holley, 2024 CAB 002245 (D.C. Super. Ct.

Apr. 18, 2024), but the process halted after the United States removed the action to this court.

When a case is removed to federal court before service is completed, the plaintiff has ninety

days to effect service. See

(explaining that service in a removed case “may be

completed . . . in the same manner as in cases originally filed in [the] district court”); Fed. R. Civ.

P. 4(m) (requiring the plaintiff to effect service within ninety days of filing the complaint). In light

of Mr. Holley’s in forma pauperis status, this court should have instructed its Clerk of Court to

attempt service, see Fed. R. Civ. P. 4(c)(3), but it failed to do so based on a misreading of the

Superior Court docket. The deadline to effect service was August 22, 2024. The United States

filed its motion to dismiss on August 21, and while it noted that it had not been served yet, it did

not move for dismissal on that basis because the deadline had not passed. See ECF No. 12, at 1 n.1

(noting, but not arguing, that Mr. Holley had yet to serve the United States). After the deadline

passed, the United States did not amend its motion to dismiss to raise an argument for dismissal

based on lack of service, instead electing to discuss the issue in its reply brief. ECF No. 19, at 2-3.

5 It is well established that a party may not raise a new basis for dismissal in its reply brief.

See Hight v. U.S. Dep’t of Homeland Sec.,

, 30 (D.D.C. 2021); see also Ramer v.

United States,

(D.D.C. 2009) (declining to consider a service argument

that was raised for the first time in the defendant’s reply brief). If the United States wanted the

court to consider insufficient service as a basis for dismissal, it should have amended its motion to

dismiss after the service deadline expired. See Overseas Partners, Inc. v. PROGEN Musavirlik ve

Yonetim Hizmetleri, Ltd. Sikerti,

(D.D.C. 1998) (holding that “Defendants’

failure to amend their motion once the defense of insufficient service of process became

‘available’ . . . constituted a waiver of that defense”). Having failed to do so, the court will treat

the issue as waived. See Fed. R. Civ. P. 12(h)(1); Overseas Partners,

.

B. Subject-Matter Jurisdiction

Turning to the preserved arguments for dismissal, the court begins, as it must, with subject-

matter jurisdiction. Steel Co. v. Citizens for a Better Env’t,

(1998); see Schmidt

v. U.S. Capitol Police Bd.,

(D.D.C. 2011) (explaining that when a defendant

files a motion to dismiss pursuant to both Rule 12(b)(1) and Rule 12(b)(6), “the court must first

examine the Rule 12(b)(1) challenge[]” because a lack of subject-matter jurisdiction renders all

other defenses and objections moot). The United States argues that Mr. Holley’s claims are barred

by the doctrine of sovereign immunity. ECF No. 12-1, at 6-7. Mr. Holley does not present any

counterargument on this point. See generally ECF No. 16. Normally, under Local Civil Rule 7(b),

when “a party files an opposition to a motion and therein addresses only some of the movant’s

arguments, the court may treat the unaddressed arguments as conceded.” Texas v. United States,

(D.C. Cir. 2015) (quoting Wannall v. Honeywell, Inc.,

(D.C.

Cir. 2014)). The court warned Mr. Holley that failing to address the United States’ arguments

6 would result in concession. ECF No. 14. Nevertheless, “a court must always assure itself of its

subject-matter jurisdiction regardless of whether a party has raised a challenge.” Kaplan v. Cent.

Bank of the Islamic Republic of Iran,

(D.C. Cir. 2018). Accordingly, the court

will address the argument.

As a general matter, “the United States cannot be sued without its consent.” Settles v. U.S.

Parole Comm’n,

(D.C. Cir. 2005). Congress may waive the United States’

sovereign immunity for certain claims, but such waiver “must be unequivocally expressed.” United

States v. Mitchell,

(1980) (quoting United States v. King,

(1969)).

Before a plaintiff can sue the United States, he “bears the burden of establishing that sovereign

immunity has been abrogated.” Stone v. Holder,

(D.D.C. 2012). If he fails

to do so, he cannot “establish the jurisdiction necessary to survive a Rule 12(b)(1) motion to dismiss.”

Jackson v. Bush,

(D.D.C. 2006).

1. Federal Tort Claims Act

The Federal Tort Claims Act (“FTCA”),

, 1402, 2401, 2671, et seq.,

provides “a limited waiver of sovereign immunity that makes the federal government liable . . . for

certain torts of federal employees acting within the scope of their employment.” Johnson v. Veterans

Affs. Med. Ctr.,

(D.D.C. 2015). Specifically, Section 1346 confers

jurisdiction on the federal courts for “claims against the United States[] for money damages . . .

[for] personal injury or death caused by the negligent or wrongful act or omission of any employee

of the Government while acting within the scope of his office or employment.” “[I]f a suit is

‘cognizable’ under § 1346(b) of the FTCA, the FTCA . . . is [the] ‘exclusive’ remedy” for that

claim. Fed. Deposit Ins. Corp. v. Meyer,

(1994); see, e.g., Johnson,

. Therefore, to the extent that Mr. Holley alleges a common-law tort, the FTCA

7 “provides the exclusive remedy.” Frazza v. United States,

(D.D.C. 2008)

(citing Tri-State Hosp. Supply Corp. v. United States,

(D.C. Cir. 2003)).

In order to sue under the FTCA, however, a plaintiff must first exhaust his administrative

remedies by presenting the relevant 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);

(a). “If

a plaintiff fails to properly exhaust his remedies, the [c]ourt lacks jurisdiction over his subsequent

tort claims.” Wiggins v. Brennan,

(D.D.C. 2018).

In its motion to dismiss, the United States argues that Mr. Holley did not exhaust his

administrative remedies by submitting a claim to the USMS. ECF No. 12-1, at 4-5; see Wiggins

v. Brennan,

(D.D.C. 2018) (explaining that the failure to exhaust

administrative remedies “is an affirmative defense” that the defendant must raise); see also

“Instructions for Submitting an Administrative Tort Claim with the United States Marshals

Service,” https://perma.cc/63BS-HAZC. In response, Mr. Holley vaguely states that he “sent a

written notification of the incident, accompanied by [a] claim for money damages” on

November 9, 2023, but he does not explain who he sent the notification to, how it was sent, or

whether it was received. ECF No. 16, at 9. In another filing in the case, Mr. Holley includes a

notice of claim that he submitted on November 9, 2023 to the Mayor of the District of Columbia

under

. ECF No. 5-1, at 3-4. Such notice is a prerequisite to filing suit against

the District of Columbia, but it does not constitute an exhaustion of administrative remedies for a

claim against the U.S. Marshals Service. In the absence of an allegation that Mr. Holley submitted

a claim to the USMS, the court cannot conclude that he exhausted his administrative remedies.

8 The court therefore lacks jurisdiction to entertain his assault claim under the FTCA.3 See Davis v.

United States,

(D.D.C. 2013) (rejecting the plaintiff’s assertion that he had

exhausted his administrative remedies because he did not “provide a receipt or other proof of

mailing” or otherwise “show[] that the [Bureau of Prisons] actually received the claim”).

If Mr. Holley instead intended to bring a constitutional tort claim, it would fare no better.

“It is well established that ‘the FTCA does not waive sovereign immunity for constitutional torts

that may be committed by [the federal government’s] employees.’” Zakiya v. United States,

(D.D.C. 2003) (alteration in original) (quoting Meyer v. Fed. Bureau of Prisons,

(D.D.C. 1996)); see Fed. Deposit Ins. Corp., 510 U.S at 478 (“[T]he United

States simply has not rendered itself liable under § 1346(b) for constitutional tort claims.”). The

FTCA is therefore not a viable path to relief for Mr. Holley.

2.

and 1988

Mr. Holley’s attempt to sue the United States under

and 1988 also fails.

See ECF No. 16 at 5 (“My claim was civil rights under the Fifth, Fourteenth, and Eighth

Amendment[s] Pursuant to

and § 1988.”). Section 1981 enables all individuals

“to make and enforce contracts” free from racial discrimination.

. Mr. Holley

does not explain the contractual basis of his claim. But even if he had, Section 1981 does not

contain an express waiver of sovereign immunity. See

; Mullen v. Bureau of

Prisons,

(D.D.C. 2012). Section 1988, meanwhile, merely “governs the

jurisdiction and procedure of federal courts with respect to civil rights claims” and “does not create

3 If Mr. Holley can provide the court with proof that he submitted a timely claim to the USMS and that it was received, that would be grounds for reconsideration under Rule 60(b). See Fed. R. Civ. P. 60(b) (permitting a court to relieve a party from a final judgment under certain circumstances).

9 a federal cause of action.” Berman v. Crook,

(D.D.C. 2018) (quoting

McManus v. District of Columbia,

(D.D.C. 2007)). Neither statute prevents

the dismissal of Mr. Holley’s claim.

C. Failure to State a Claim

While the court lacks jurisdiction to entertain any of Mr. Holley’s claims under the FTCA,

Section 1981, or Section 1988, he still has a potential path to relief through either 42 U.S.C. 1983

or Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

(1971).

Because Section 1983 and Bivens claims are brought against government agents in their

individual—not official—capacities, “the sovereign’s immunity from damages is . . . not a

defense.”4 Simpkins v. D.C. Gov’t,

(D.C. Cir. 1997) (Bivens case); Stoddard v.

Wynn,

(D.D.C. 2014) (Section 1983 case).

1.

While Mr. Holley does not explicitly reference Section 1983, he cites an Eleventh Circuit

case involving a Section 1983 claim. See ECF No. 16, at 7 (citing Corbitt v. Vickers,

(11th Cir. 2019)). Section 1983 provides a civil cause of action against “[e]very person”

who, while acting “under color of [state law],” deprives an individual of their constitutional rights.

; Settles,

. Liberally construing Mr. Holley’s complaint as alleging

a Section 1983 claim against the Deputy Marshals, the United States argues that Section 1983 does

not apply to the federal government or federal officials. ECF No. 19, at 4. That is true as far as it

4 Mr. Holley does not specify whether he intended to sue the Deputy Marshals in their individual or official capacities. Having already addressed any potential official-capacity claims above, see supra Part IV.B, the court elects to address individual-capacity claims out of an abundance of caution, see Link v. United States,

(D.D.C. 2008) (“It is well established that a court is obligated to liberally construe the claims of pro se litigants”).

10 goes, but it does not answer the question whether the Deputy Marshals were exercising federal

authority or the District of Columbia’s “state” authority during their interactions with Mr. Holley.5

As a general rule, the statute “does not apply to federal actors.” Mullen,

. The determinative consideration, however, is whether the defendant was acting under the color

of state law when he violated the defendant’s rights. See Williams v. United States,

(D.C. Cir. 2005) (acknowledging that a federal official can be sued under Section 1983 if

a state “exercise[s] . . . coercive power” through him (second alteration in original) (quoting

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,

(2001))).6 Thus, as

was the case in Williams, the viability of Mr. Holley’s Section 1983 claim hinges on the source of

the Deputy Marshals’ authority when the Deputy Marshals allegedly violated his rights.

Unfortunately for Mr. Holley, the Deputy Marshals at Superior Court “derive[] [their]

authority from generally applicable federal law, not District of Columbia law.” Johnson v. Gov’t

of D.C.,

(D.D.C. 2008), aff’d,

(D.C. Cir. 2013). The USMS

is “a bureau within the Department of Justice under the authority and direction of the Attorney

General.”

(a). The President appoints a U.S. Marshal “for each judicial district

of the United States and for the Superior Court of the District of Columbia,” and the U.S. Marshal

5 The District of Columbia is considered a “state,” and its officials are considered “state” actors under Section 1983. See

(providing a cause of action against persons who deprive the constitutional rights of others under color of the law of “any State or Territory or the District of Columbia”). 6 As the D.C. Circuit recognized in Williams, other courts determine the viability of a Section 1983 claim based on whether a defendant was “cloaked” in state authority, rather than the defendant’s identity as a federal or state official. See Case v. Milewski,

(7th Cir. 2003) (preventing the plaintiff from suing federal police officers under Section 1983 because the defendants were not acting under state authority and had not “conspired or acted in concert with state officials to deprive [the plaintiff] of his civil rights”); Kletschka v. Driver,

(2d Cir. 1969) (permitting the plaintiff to sue federal officials because they conspired with state officials to violate the plaintiff’s federal rights).

11 and the Deputy Marshals and other personnel serving under him follow the directives of the

“Director of the United States Marshal Service”—a federal official operating under federal law.

§§ 561(b), (c) (emphasis added). Accordingly, even though the USMS plays a role in maintaining

the security of the District’s local courts, its members are “at all times . . . federal official[s] acting

under color of federal law.” Johnson v. Gov’t of D.C.,

(D.C. Cir. 2013).7

Multiple judges of this court have reached the same conclusion. See Johnson,

; Brown v. Short,

(D.D.C. 2010) (concluding that a U.S. Marshal

Detention Security Officer was acting under color of federal law when conducting a partial strip

search at the Superior Court); Bame v. Dillard,

(D.D.C. 2009) (same), rev’d

on other grounds,

(D.C. Cir. 2011). Mr. Holley thus cannot state a claim under

Section 1983.

2. Bivens

In the alternative, Mr. Holley’s allegations could be read to assert a Bivens claim against

the individual Deputy Marshals who allegedly attacked him. In Bivens, the Supreme Court “held

that an individual injured by a federal agent’s alleged violation of the Fourth Amendment may

bring an action for damages against the agent.” Fed. Deposit Ins. Corp.,

. But

while Mr. Holley could have alleged such a claim, he expressly disavowed any attempt to sue

under Bivens in his opposition. See ECF No. 16, at 5 (“Plaintiff, in a document filed after his

complaint, did state case law about Bivens, and that was only because the U.S. Marshals[] also

7 In any event, even though Congress “treat[s] . . . D.C. courts as state courts for certain purposes,” Handy v. Shaw, Bransford, Veilleux & Roth,

(D.C. Cir. 2003), the District’s courts are created pursuant to Article I of the United States Constitution and are thus federal courts,

(2); Jenkins v. Wash. Convention Ctr.,

(D.C. Cir. 2001).

12 assaulted him [like the] six unknown U.S. Marshals, . . . but I never made a claim.”). Because he

does not purport to bring a Bivens claim, the court will not address it.

* * *

In sum, to the extent that Mr. Holley attempts to allege a common-law tort under the FTCA,

he has not exhausted his claim, and to the extent he wishes to bring constitutional tort claims under

the FTCA, Section 1981, or Section 1988, his claims are barred by sovereign immunity. The court

will thus dismiss those claims without prejudice for lack of subject-matter jurisdiction. And

because Mr. Holley cannot state a claim for relief under Section 1983 and does not state a claim

under Bivens, the court will dismiss those claims with prejudice.

V. CONCLUSION

For the foregoing reasons, the court will grant the United States’ motion to dismiss, ECF

No. 12. The court will also deny Mr. Holley’s request for subpoenas to issue, ECF No. 11, as

moot. A contemporaneous Order will issue.

LOREN L. ALIKHAN United States District Judge

Date: January 22, 2025

13