Petition for Writ of Certiorari — Jerry L. Carr, Petitioner v. William P. Barr, Attorney General

App. 1

United States Court of Appeals

For The District of Columbia Circuit

No. 19-5077

September Term, 2019

1:18-c v-00356-RC

Filed On: October 3, 2019

Jerry L. Carr,

Appellant

v.

William Pelham Barr, United States

Department of Justice Attorney General,

Appellee

BEFORE: Rogers, Tatel, and Srinivasan,

Circuit Judges

ORDER

Upon consideration of the motion to appoint a spe­

cial prosecutor; the motion for summary reversal; and

the motion for summary affirmance, the opposition

thereto, and the reply, it is

ORDERED that the motion for summary reversal

be denied and the motion for summary affirmance be

granted. The merits of the parties’ positions are so

clear as to warrant summary action, See Taxpayers

Watchdog. Inc, v. Stanley. 819 F.2d 294, 297 (D.C. Cir.

1987) (per curiam). Appellant’s claims are untimely

under the applicable statutes of limitations. See Earle

App. 2

v. D.C.. 70,7 F.3d 299, 306 (D.C. Cir. 2012) (three-year

statute of limitations for actions arising under 42

U.S.C. § 1983); Loumiet v. United States. 828 F.3d 935,

947 (D.C. Cir. 2016) (three-year statute of limitations

for Bivens claims); 28 U.S.C. § 2401(b) (two-year stat­

ute of limitations for claims arising under the Federal

Tort Claims Act). It is

FURTHER ORDERED that the motion to ap­

point a special prosecutor be denied.

Pursuant to D.C. Circuit Rule 36, this disposition

will not be published. The Clerk is directed to withhold

issuance of the mandate herein until seven days after

resolution of any timely petition for rehearing or peti­

tion for rehearing en banc. See Fed. R. App. P. 41(b);

D.C. Cir. Rule 41.

Per Curiam

App. 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JERRY L. CARR,

Plaintiff,

Civil Action No.:

18-356 (RC)

v.

JEFFERSON B. SESSIONS,

et al.

Re Document Nos.:

7,14

Defendants.

MEMORANDUM OPINION

(Filed Feb. 25, 2019)

Granting Defendants’ Motion to Dismiss;

Denying Plaintiff’s Motion to Amend

the Complaint

I. INTRODUCTION

Plaintiff Jerry L. Carr, proceeding pro se, brings

this action against the United States Attorney Gen­

eral, the Department of Justice, and the United States

(“collectively, the government”) seeking justice for a se­

ries of events occurring in Ohio and the District of Co­

lumbia over the last thirty years. He claims that the

federal government, a law firm, and several individu­

als have conspired to deprive him of his livelihood and

his freedom. Presently before the Court are the govern­

ment’s motion to dismiss the action and Mr. Carr’s mo­

tion to amend the complaint.

App. 4

Because this action is the latest in a series of liti­

gation campaigns waged by Mr. Carr, many of Mr.

Carr’s claims are barred by res judicata. Mr. Carr’s

claims not barred by res judicata are time barred. And

it would be futile for Mr. Carr to amend his complaint

because his proposed amendments could not survive a

motion to dismiss, for the same reasons that the cur­

rent complaint cannot survive. The Court thus grants

the government’s motion to dismiss and denies Mr.

Carr’s motion to amend.

II. FACTUAL BACKGROUND

This action traces its origins to the 1980s, when an

ill-fated dispute between Mr. Carr and his co-workers

at Champion International Corporation (“Champion”)

prompted Champion to fire Mr. Carr. See Compl. M 81,

102-03, ECF No. 1. Champion’s decision unleased Mr.

Carr upon the federal court system, through which he

has filed a series of lawsuits to defeat what he views as

a widespread conspiracy against him. See, e.g., id.

f 'll 36-41, 82-93. The latest turn in this alleged con­

spiracy has brought Mr. Carr before this Court.

To provide context for its decision, the Court will

briefly summarize Mr. Carr’s litigation history. After

Champion fired him, Mr. Carr sued Champion and

several co-workers under 42 U.S.C. § 1981. See Defs.’

Mem. Supp. Mot. Dismiss (“Defs.’ Mem.”) Ex. 1 (“Judge

Manos Order”), ECF No. 7-1.1 Having lost at trial in

1 The Court takes judicial notice of Judge Manos’s order, and

the other orders and opinions cited below, without converting the

App. 5

that action. Mr. Carr and his now-wife, a former Cham­

pion employee who was fired around the same time,

brought a second action under the Racketeer Influ­

enced and Corrupt Organizations (“RICO”) Act against

Champion, its legal counsel, Frost Brown Todd LLC

(“Frost”), and several judges, asserting that Frost over­

saw an organized crime network that extorted Mr.

Carr and his wife. See id. at 3-4; Compl. M 13-18. In

response to these filings, Judge John Manos of the

Southern District of Ohio permanently enjoined Mr.

Carr and his wife from bringing certain types of actions in federal court. See Judge Manos Order at 1011.

N

Notwithstanding Judge Manos’s Order, Mr. Carr

continued pursuing his cause, attempting to enlist the

FBI and various other federal agencies in bringing

Frost’s conspiracy to light. Compl. M 29-34,45,74-77.

These efforts were unsuccessful, however, allegedly

government’s motion to dismiss into a motion for summary judg­

ment. In considering whether a complaint adequately states a

claim, a “court may consider the facts alleged in the complaint,

documents attached thereto or incorporated therein, and matters

of which it may take judicial notice.” Stewart v. Nat’l Educ. Ass’n,

471 F.3d 169, 173 (D.C. Cir. 2006) (citing EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621,624-25 (D.C. Cir. 1997)). And

it is well-established that the Court may take judicial notice of

judicial opinions related to the current action. Covad Commc’ns.

Co. v. BellAtl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (noting

that a court may look to “relevant opinions upon a motion to dis­

miss” (citing Marshall Cty. Health Care Auth. v. Shalala, 988

F.2d 1221, 1228 (D.C. Cir. 1993))); Does I through III v. District of

Columbia, 238 F. Supp. 2d 212, 216-17 (D.D.C. 2002) (“[C]ourts

are allowed to take judicial notice of prior litigation.’ ” (quoting

Black v. Arthur, 18 F. Supp. 2d 1127,1131 (D. Or. 1998))).

)

App. 6

because of Frost’s control over the government. Id

M 77-78, 99-101, 103. In 2006 Mr. Carr filed another

RICO suit, this time in this jurisdiction. See Compl.,

Carr v. Frost, Brown & Todd, No. 06-cv-1893 (D.D.C.

Nov. 3, 2006), ECF No. 1 (“2006 Compl.”); Compl.

tf 36-44. Judge James Robertson concluded that the

2006 complaint was “substantially identical” to Mr.

Carr’s previous lawsuits, and he dismissed the 2006

complaint with prejudice. See Defs.’ Mem. Ex. 2 (“Judge

Robertson Order”) at 3-4, ECF No. 7-2.

Around the time of that dismissal, Mr. Carr was

interviewed by Deputy United States Marshal Joel

Kimmet and FBI Agent Terrence Moran regarding

threatening phone calls Mr. Carr allegedly made to

Judge Robertson’s chambers. See Compl., USA v. Carr,

No. 07-cr-0107 (S.D. Ohio May 1, 2007), ECF No. 2;

Compl, ff 45, 48. That investigation resulted in Mr.

Carr pleading guilty to possessing a firearm after hav­

ing been previously committed to a mental institution.

See Defs.’ Mem. Ex. 3, ECF No. 7-3, After serving his

sentence, Mr. Carr filed a motion with the Southern

District of Ohio to clear his criminal record, remove the

label of “mentally ill” from his record, and vacate Judge

Manos’s sanction. Compl. M 82-92. Judge Michael

Barrett denied the motion for lack of jurisdiction. See

Defs.’ Mem. Ex. 4 (“Judge Barrett Order”), ECF No. 74. Mr. Carr appealed that order to the Sixth Circuit,

which affirmed Judge Barrett’s decision. See Defs.’

Mem. Ex. 5, ECF No. 7-5.

Finally, Mr. Carr filed this action in early-2018, re­

counting the events above as pieces in a large-scale

App. 7

conspiracy, led by Frost, to deprive him of his constitu­

tional rights. See generally Compl. He sues under var­

ious federal statutes, both civil and criminal,2 alleging

that the government failed to properly supervise the

federal agents involved in the alleged conspiracy over

the past thirty odd years, and failed to protect Mr.

Carr’s constitutional rights. The government has

moved to dismiss the action under Federal Rule of Civil

Procedure 12(b)(6), arguing, in part, that the complaint

is barred by res judicata, and that any claims not

barred by res judicata are time barred under the appli­

cable statutes of limitations.3 See generally Defs.’ Mot.

Dismiss, ECF No. 7. After the government filed its mo­

tion to dismiss, Mr. Carr moved to add intentional tort

claims to his complaint. See Pl.’s Mot. Amend at 1, ECF

No. 14. Both motions are ripe for the Court’s review.

2 The Court encountered some difficulty in determining

which statutes underlie Mr. Carr’s action, given the complaint’s

scattershot use of statutory citations. Because the Court must

construe pro se complaints liberally, see Brown v. Whole Foods

Mkt. Grp., Inc., 789 F.3d 146,150-52 (D.C. Cir. 2015); Atherton v.

D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), it will

make generous inferences in identifying appropriate causes of ac­

tion for Mr. Carr’s allegations.

3 Mr. Carr filed an additional memorandum on September

13, 2018, informing the Court that Frost had recently hired a for­

mer Department of Justice prosecutor as a senior associate. See

Mem. at 1-2, ECF No. 11. Upon review of the memorandum, the

Court finds it irrelevant to Mr. Carr’s legal claims against the

government defendants named in this action.

App. 8

III. LEGAL STANDARD

A. Federal Rule 12(b)(6)

To survive a motion to dismiss under Federal Rule

12(b)(6), a complaint must contain sufficient factual

matter, accepted as true, to “state a claim to relief that

is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly. 550 U.S.

544,570 (2007)). The plaintiff’s right to relief must rise

above the “speculative level,” Twombly, 550 U.S. at

555-56. “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements,”

are therefore insufficient to withstand a motion to dis­

miss. Iqbal, 556 U.S. at 678. A court need not accept a

plaintiff’s legal conclusions as true, see id., nor must a

court presume the veracity of legal conclusions that

are couched as factual allegations. See Twombly, 550

U.S. at 555.

This Court construes pro se complaints liberally.

Atherton u. D.C. Office of Mayor, 567 F.3d 672,681 (D.C.

Cir. 2009). Thus, Mr. Carr’s complaint “must be held to

less stringent standards than formal pleadings drafted

by lawyers.” Id. (quoting Erickson v. Pardus, 551 U.S.

89, 94 (2007)). Even under this liberal standard, a pro

se complainant must plead facts that allow the Court

to infer “more than the mere possibility of misconduct.”

Id. at 681-82 (quoting Iqbal, 556 U.S. at 679). A court

considering a pro se plaintiff’s complaint should look

to “all filings, including filings responsive to a motion

to dismiss.” Brown v. Whole Foods Mkt Grp., Inc., 789

F.3d 146, 152 (D.C. Cir. 2015), to discern whether the

A

App. 9

plaintiff has “‘nudged [his] claim[s] across the line

from conceivable to plausible.’ ” Id. (quoting Twombly,

550 U.S. at 570). “The Court need not,” however, “as­

sume the role of the pro se plaintiff’s advocate.” Mehrbach v. Citibank, NA., 316 F. Supp. 3d 264, 268 (D.D.C.

2018). It need not stalk the record to find support for

Mr. Carr’s claims. Sun v. D.C. Gov't, 133 F. Supp. 3d

153,168 n.6 (D.D.C. 2015).

B. Federal Rule 15(a)

Federal Rule of Civil Procedure 15(a) permits a

plaintiff to amend his complaint once as a matter of

course within 21 days of serving it or within 21 days of

the filing of a responsive pleading or Rule 12(b) motion.

See Fed. R. Civ. P. 15(a)(1). Otherwise, the plaintiff may

amend his pleading only with the opposing party’s

written consent—which has been denied in this case—

or the Court’s leave. Fed. R. Civ. P. 15(a)(2).

“The decision to grant or deny leave to amend . . .

is vested in the sound discretion of the trial court.”

Commodore-Mensah v. Delta Air Lines, Inc., 842 F.

Supp. 2d 50, 52 (D.D.C. 2012) (citing Doe v. McMillan,

566 F.2d 713, 720 (D.C. Cir. 1977)). And Rule 15 in­

structs courts to “freely give leave when justice so re­

quires.” Fed. R. Civ. P. 15(a)(2); see also Belizan v.

Hershon, 434 F.3d 579,582 (D.C. Cir. 2006) (explaining

that Rule 15 “is to be construed liberally”). “[L]eave to

amend is particularly appropriate when a plaintiff

proceeds pro se” Moore v. Agency for Int’l Dev., 994

F.2d 874, 877 (D.C. Cir. 1993). Generous standard

App. 10

notwithstanding, courts may deny leave to amend for

such reasons as “undue delay, bad faith or dilatory mo­

tive 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, [or] futility of amendment.” Foman

v. Davis, 371 U.S. 178,182 (1962).

IV. ANALYSIS

The government argues that Mr. Carr’s complaint

should be dismissed because, among other reasons, Mr.

Carr’s claims are barred by res judicata and the appli­

cable statutes of limitations. The government argues

that Mr. Carr’s proposed complaint amendments

should be rejected for the same reasons. The Court

agrees for the reasons stated below, and it therefore

dismisses Mr. Carr’s action and denies his motion to

amend the complaint.

A. Res Judicata

“Under the doctrine of res judicata, ‘a final judg­

ment 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, 245 F. Supp. 3d 99, 103 (D.D.C. 2017) (em­

phasis in original) (quoting Drake v. FAA, 291 F.3d 59,

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

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) there has been a final, valid

App. 11

judgment on the merits, (4) by a court of competent ju­

risdiction.” Smalls v. United States, 471 F.3d 186, 192

(D.C. Cir. 2006) (citing Blonder-Tongue Labs, Inc. v.

Univ. of 111. Found., 402 U.S. 313, 323-24 (1971);

Comm’r of Internal Revenue v. Sunnen, 333 U.S. 591,

597 (1948)). Whether two cases involve the same cause

of action is determined by “whether they share the

same ‘nucleus of facts.’ ” Ashbourne, 245 Supp. 3d at

103-04 (quoting Drake, 291 F.3d at 66). 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, 729 F.2d 818, 820 (D.C. Cir. 1984).

“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. DOL., 318 F. Supp. 3d 81, 86 (D.D.C. 2018) (quoting

Sheppard v. District of Columbia, 791 F.Supp.2d 1, 5

n.3 (D.D.C. 2011)); see also Hemphill v. Kimberly-Clark

Corp., 530 F. Supp. 2d 108, 111 (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., 407 F.3d 1220, 1222

(D.C. Cir. 2005); Does I through III v. District of Colum­

bia, 238 F. Supp. 2d 212, 216-17 (D.D.C. 2002).

According to the government, Judge Robertson’s

2007 dismissal of Mr. Carr’s 2006 complaint and Judge

Barrett’s 2011 denial of Mr. Carr’s motion to clear his

record bar Mr. Carr’s current action under res judicata

App. 12

because “nothing about [his] [current] [c]omplaint is

new.” Defs.’ Mem. at 11. The government is correct in

part. While Judge Robertson’s 2007 decision has res ju­

dicata effect on Mr. Carr’s current claims arising from

pre-2007 conduct, Judge Barrett’s 2011 decision does

not.

Res judicata requires a final, valid judgment on

the merits. Smalls, 471 F.3d at 192. And it is wellestablished that dismissal with prejudice pursuant to

a 12(b)(6) motion constitutes a final judgment. See id.;

Haase u. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987).

Judge Robertson’s 2007 decision was such a dismissal.

See Judge Robertson Order at 4. On the other hand,

“[a] dismissal for lack of subject matter jurisdiction

does not constitute adjudication on the merits with

claim preclusive effect.” Gresham v. District of Colum­

bia, 66 F. Supp. 3d 178,194 (D.D.C. 2014) (citing Miller

v. Saxbe, 396 F. Supp. 1260,1261 (D.D.C. 1975)). Judge

Barrett’s 2011 decision denied Mr. Carr’s motion on ju­

risdictional grounds, so it does not have res judicata

effect. See Judge Barrett Order.

Res judicata’s application here is thus limited to

conduct addressed by Judge Robertson’s 2007 decision.

That decision disposed of Mr. Carr’s claims arising

from conduct that occurred before November 3, 2006,

when Mr. Carr filed his suit. See generally 2006 Compl.

The question, then, is whether Mr. Carr’s 2006 com­

plaint (I) involved the same claims or causes of ac­

tion—the same “nucleus of facts”—as the current

action; and (2) implicated the same parties or their

privies. Smalls, 471 F.3d at 192. The answer is yes.

App. 13

Mr. Carr’s 2006 complaint and the current com­

plaint share the same nucleus of facts. The 2006 com­

plaint alleged violations of Mr. Carr’s rights based on

actions and events largely the same, if not identical, to

the ones challenged in his current complaint. See gen­

erally Judge Robertson Order; 2006 Compl. Both com­

plaints proffer the alleged Frost conspiracy as their

central theory, arguing that Frost controlled the fed­

eral law enforcement apparatus and, using that appa­

ratus as a shield, harmed Mr. Carr in various ways. See

2006 Compl. at 19-21; Compl. (fl<l[ 77-78. More specifi­

cally, for instance, both complaints claim that Mr. Carr

was unlawfully imprisoned in a mental institution be­

cause Roger Fisher, a psychologist alleged to be in

Frost’s pocket, swore false statements against Mr.

Carr. See 2006 Compl. at 8, 14-15; Compl. ‘Jl'fl 19-23.

And both complaints assert that the Department of

Justice and the FBI have taken a “corrupt position” visa-vis Mr. Carr and his battle against Frost’s conspiracy.

See 2006 Compl. at 20; Compl. f 82. The only signifi­

cant difference between the two complaints appears to

be the parties named as defendants, and those defend­

ants are in privity with each other.4

“[0]ne in privity with another is said to be one ‘so

identified in interest with a party to former litigation

that he represents precisely the same legal right in

respect to the subject matter involved.’ ” Gresham, 66

4 Mr. Carr’s 2006 complaint did not explicitly name the De­

partment of Justice as a defendant, but it did raise allegations

against the “U.S. Dept, of Justice” arising from the agency’s al­

leged participation in Frost’s conspiracy. See 2006 Compl. at 19.

App. 14

F. Supp. 3d at 192 (quoting Jefferson Sch. ofSoc. Sci. u.

Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C.

Cir. 1963)). The 2006 complaint named two Depart­

ment of Justice officials, three FBI Agents, and one IRS

Agent as defendants. See 2006 Compl. at 1-2. The

current complaint names the Attorney General, the

Department of Justice, and the United States as de­

fendants, claiming that they were responsible for ac­

tions taken by certain individual federal officials. See

Pl.’s Opp’n Mot. Dismiss at 52-53, ECF No. 9.5 It is

well-established in this jurisdiction that, for res judi­

cata purposes, the government, its agencies, and its of­

ficers are in privity with one another. See Sczygelski v.

U.S. Office of Special Counsel, 926 F. Supp. 2d 238,24445 (D.D.C. 2013); McIntyre v. Fulwood, 892 F. Supp. 2d

209, 215 (D.D.C. 2012). Thus, the current defendants

are in privity with the 2006 defendants. Gresham, 66

F. Supp. 3d at 193. Because Judge Robertson’s 2007

decision was a final judgment on the merits regarding

a complaint that shares the same nucleus of facts

with the current complaint, along with parties in

privity with the current parties, Mr. Carr’s current

claims regarding pre-2007 conduct are barred by res

judicata.

5 Mr. Carr’s voluminous opposition filing does not contain

page numbers. For ease of reference, when referring to this filing

the Court cites the page numbers designated by ECF.

App. 15

B. Statute of Limitations

Having disposed or Mr. Carr’s claims arising from

conduct that occurred before November 3, 2006, the

Court now considers Mr. Carr’s claims regarding con­

duct that occurred after that date. See Page, 729 F.2d

at 820 (refusing to dismiss the plaintiff’s complaint on

res judicata grounds for conduct that occurred after

the district court’s previous order). Mr. Carr seems to

make three general accusations not previously liti­

gated. First, Mr. Carr claims that United States Mar­

shal Joel Kimmet made false assertions in his probable

cause statement underlying Mr. Carr’s 2007 arrest and

indictment. See Compl. (|[<JI 63-67; id, Ex. 23, ECF No.

1-1 at 203-21.6 Second, Mr. Carr claims that United

States Marshals and FBI Agents, specifically Marshal

Kimmet and FBI Agent Terrence Moran, threatened

Mr. Carr’s life around the time of his 2007 arrest and

2008 motion to vacate Judge Manos’s 1991 Order. See

Compl.

48, 82, 99(A). Third, Mr. Carr claims that

Assistant United States Attorney (“AUSA”) Leslie Wil­

liams acted illegally during Mr. Carr’s Sixth Circuit ap­

peal of Judge Barrett’s 2011 Order. See Compl. U 93.

The precise nature of AUSA William’s allegedly illegal

conduct is difficult to understand from the complaint,

but Mr. Carr’s main thrust seems to be that AUSA

Williams “cover [ed] for” the parties that allegedly con­

spired to deny Mr. Carr his constitutional rights. Id.;

6 Mr. Carr’s complaint exhibits were filed together in one at­

tachment that does not contain page numbers. As with Mr. Carr’s

opposition filing, when referring to the complaint exhibits the

Court cites the page numbers designated by ECF.

App. 16

see also Pl.’s Opp’n at 49 (“Leslie Williams again lies

and cover [sic] the criminal activity by the D.O.J.”).7

Mr. Carr asserts that the Attorney General, the

Department of Justice, and the United States are re­

sponsible for those alleged illegal acts because “the

D.O.J. [] is the [t]op [l]aw enforcement agency in the

United States” and “Jeff Sessions is over [t] op of the

D.O.J.” See Pis.’ Opp’n at 53. Thus, a fair reading of Mr.

Carr’s complaint is that the Attorney General, the De­

partment of Justice, and the United States illegally

“fail[ed] to protect [Mr. Carr’s] [constitutional [r]ights”

from the alleged abuses of their employees and subor­

dinates. Id. The government argues that, however the

complaint is read, Mr. Carr’s remaining claims must

7 Along with those three accusations, Mr. Carr vaguely al­

leges that Judge Robertson acted improperly during Mr. Carr’s

2006 action. See Compl. M 39-44, 78, 110. However, Mr. Carr

specifically brings this allegation under 18 U.S.C. § 242, which

criminally punishes individuals who deprive others of their rights

under color of law. Compl. H 78. Because Mr. Carr has no private

right of action under criminal statutes, Masoud v. Suliman, 816

F. Supp. 2d 77, 80 (D.D.C. 2011), he has failed to state a claim

upon which relief may be granted. Judge Manos’s 1991 Order,

moreover, enjoins Mr. Carr “from filing in any court, an action

against any state or federal judge, or any officer or employee of

any court, for actions taken in the course of their official duties.”

Judge Manos’s Order at 10-11. Judge Manos’s Order thus bars

Mr. Carr’s claims against Judge Robertson and any other judge

named in the complaint. Finally, Judge Robertson would be cov­

ered by judicial immunity for any such claim. See Atherton, 567

F.3d at 682 (“[J]udges ‘are not liable to civil actions for their judi­

cial acts, even when such acts are in excess of their jurisdiction,

and are alleged to have been done maliciously or corruptly, i a

(quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1871))).

App. 17

be dismissed because they are barred by the applicable

statutes of limitations. The Court agrees.

Federal Rule 12(b)(6) is the appropriate “vehicle

for asserting the affirmative defense of statutory time

limitation.” Pearl u. Latham & Watkins LLP, 985

F. Supp. 2d 72, 80 (D.D.C. 2013). However, “[b]ecause

statute of limitations issues often depend on contested

questions of fact, dismissal is appropriate only if the

complaint on its face is conclusively time-barred.”

Moldea u. Ovitz, No. 18-cv-0560,2019 WL 465004, at *3

(D.D.C. Feb. 6, 2019) (quoting Bregman v. Perles, 747

F.3d 875-76 (D.C. Cir. 2014)). Thus, the complaint’s al­

legations themselves must “show that relief is barred

by the applicable statute of limitations.” Jones v. Bock,

549 U.S. 199, 215 (2007); Wash. Metro. Area TYansit

Auth. v. Ark Union Station, 268 F. Supp. 3d 196, 203

(D.D.C. 2017); Coulibaly u. Tillerson, 278 F. Supp. 3d

294, 300 (D.D.C. 2017). That is the case here.

Before addressing Mr. Carr’s claims, the Court

must determine which statute or statutes of limita­

tions apply to them. Again, the scattershot nature of

Mr. Carr’s complaint makes this no easy task. Most of

the statutes Mr. Carr cites are federal criminal stat­

utes that provide him no private right of action. See.

Compl. at 2; see also Masowd u. Suliman, 816 F. Supp.

2d 77, 80 (D.D.C. 2011) (“[C]riminal statutes, however,

do not and cannot provide the basis for [a] plaintiff’s

civil causes of actions.”). The civil statute Mr. Carr cites

most is 42 U.S.C. § 1983. See Compl. at 2-3. With minor

exceptions not present here, § 1983 is inapplicable to

federal officials. See Williams v. United States, 396 F.3d

App. 18

412, 414-16 (D.C. Cir. 2005). Drawing all inferences in

favor or the pro se plaintiff, however, the Court will an­

alyze the statute of limitations question under the

analogous Bivens doctrine, which applies to federal

agents in their individual capacities.8 See Berry v.

Funk, 146 F.3d 1003,1013 (D.C. Cir. 1998); see also Pl.’s

Mot. Amend at 11 (“[T]he Bivens action should apply

in this case.”).9

8 The complaint does not name any individuals as defend­

ants in their individual capacities (Attorney General Sessions

was not Attorney General during the relevant period, and thus

must be named in his official capacity). That said, the Court lib­

erally interprets the complaint as lodging claims against the gov­

ernment officials named in its body, specifically Marshal Kimmet,

Agent Moran, and Ms. Williams, among others. However, individ­

ual defendants must be served in their individual capacities. See

Fed. R. Civ. P. 4(i)(3); Wilson u. U.S. Park Police, 300 F.R.D. 606,

608 (D.D.C. 2014) (“When an officer or employee of the govern­

ment is sued in his or her individual capacity . . . personal service

on the officer or employee is required.”). There is no indication

that any of those individuals have been served in any capacity,

individual or otherwise. And even if they were served, Mr. Carr’s

claims against them would be time barred for the reasons set out

below.

9 Bivens claims are not available against federal agencies or

the United States. See Iqbal, 556 U.S. at 676; Corr. Servs. Corp.

v. Maestro, 534 U.S. 61, 72 (2001); FDIC v. Meyer, 510 U.S. 471,

477-78 (1994); Abdelfattah v. DHS, 787 F.3d 524, 534 (D.C. Cir.

2015). And the United States has not consented to be sued for

money damages arising from its employees’ alleged constitutional

violations. See Meyer, 510 U.S. at 476-78; Epps v. U.S. Att’y Gen.,

575 F. Supp. 2d 232, 238 (D.D.C. 2008) (stating that the Federal

Tort Claims Act “does not waive sovereign immunity for constitu­

tional torts” (citations omitted)). Mr. Carr is thus barred from

seeking damages from the Department of Justice or the United

States.

App. 19

The appropriate limitations period for a Bivens

claim is dictated by the relevant personal injury stat­

utes in the jurisdiction in which the conduct at issue

occurred. See Lewis v. Bayh, 577 F. Supp. 2d 47, 51-52

(D.D.C. 2008). The alleged conduct here occurred in

both Ohio and the District of Columbia. However, as

noted, Mr. Carr suggests in his opposition brief that the

central issue in this case is the failure of the Attorney

General, the Department of Justice, and the United

States to adequately supervise their employees and

subordinates. See Pl.’s Opp’n at 53 (“I am suing the

D.O.J. for failure to protect my constitutional rights

and Attorney General Jeff Session [s] is the Attorney

General over top of the D.O.J.”). Because the govern­

ment defendants are based in the District of Columbia,

District of Columbia law governs. And [i]n the context

of a Bivens action claiming the deprivation of constitu­

tional rights, the D.C. Circuit has instructed that D.C.

Code § 12-301 provides the relevant limitations pe­

riod”: Three years at most. Richardson v. Sauls, 319

F. Supp. 3d 52, 67 (D.D.C. 2018) (citing Zhao v. Un­

known Agent. of CIA, 411 F. App’x 336, 336-37 (D.C.

Cir. 2010)); see also D.C. Code § 12-301(8) (providing a

three-year limitations period for actions “for which a

limitation is not otherwise specially prescribed”).10

10 Ultimately, it makes no difference whether District of

Columbia or Ohio law is the appropriate source for the Court’s

statute of limitations analysis. Under Ohio law, Bivens cases are

governed by the two-year limitations period found in Ohio Code

§ 2305.10. See Browning v. Pendleton, 869 F.2d 989, 906 (6th Cir.

1989). This time frame is even less forgiving than the District of

Columbia’s three-year period.

App. 20

Next, the Court must determine when Mr. Carr’s

claims accrued. In most circumstances, courts apply

the “standard rule,” which states that the limitations

period begins when a potential plaintiff has a “com­

plete and present cause of action.” Bay Area Laundry

& Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of

Cal., 522 U.S. 192,201 (1997) (quotingRawlings v. Ray,

312 U.S. 96, 98 (1941)). In certain circumstances, how­

ever, a court applies the “discovery rule,” under which

the limitations period begins only when “the plaintiff

discovers, or through due diligence should have discov­

ered, the injury supporting the legal claim. Coulibaly,

278 F. Supp. 3d at 300 (quoting Lattisaw v.,District of

Columbia, 18 F. Supp. 3d 142, 157 (D.D.C. 2015)); see

also Barbaro v. U.S. ex rel. Fed. Bureau of Prisons FCI

Otisville, 521F. Supp. 2d 276,280 (S.D.N.Y. 2007) (“The

discovery rule . . . governs Bivens actions.” (citing Paige

v. Police Dep’t of Schenectady, 264 F.3d 197,200 (2d Cir.

2001); Kronisch v. United States, 150 F.3d 112,123 (2d

Cir. 1998))). The Court need not decide which rule ap­

plies here, because Mr. Carr’s claims are barred under

either.

The limitations period for Mr. Carr’s claims

arising from Marshal Kimmet’s allegedly false state­

ments began on or around May 1, 2007, when Marshal

Kimmet submitted his statement of probable cause.

See Compl. Ex. 23, ECF No. 1-1 at 203-21.11 The

11 Although Mr. Carr may not have learned about the alleg­

edly false statements on the day they were submitted, the record

indicates that he was informed of these statements over the fol­

lowing months. See Compl. Ex. 23 (containing the docket

App. 21

limitations period for Mr. Carr’s claims arising from

the alleged threats made by the Marshals and FBI

Agents began shortly after, when Mr. Carr states the

threats were made. See Compl. f 82 (stating that

around March 1, 2008, “US Marshal Joel J. Kimmet,

Special F.B.I. Agent Terrence Moran, both threatened

Mr. Carr’s life.”). And the limitations period for Mr.

Carr’s claims arising from Ms. Williams’s alleged ille­

gal conduct began in March 2012, when Ms. Williams

filed her Sixth Circuit brief. See Br. for Appellee,

United States v. Carr, No. 11-4199 (6th Cir. Mar. 2,

2012). Because that alleged conduct took place at least

six years ago, well outside the three-year statutory pe­

riods, Mr. Carr’s claims arising from post-2006 conduct

are time barred. The Court thus dismisses those claims

under Federal Rule 12(b)(6).

C. Mr. Carr’s Motion to Amend

Finally, the Court turns to Mr. Carr’s motion to

amend the complaint to add intentional tort claims

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

§1346(b), not raised in his initial complaint. See Pl.’s

Mot. Amend at 1. The government argues that Mr.

Carr’s motion to amend his complaint should be denied

for futility. “Denial of leave to amend based on futility

summary of Mr. Carr’s criminal case, USA v. Carr, No. 07-cr-0107

(S.D. Ohio 2007), including references to a May 3,2007 hearing

during which Mr. Carr was “informed of his rights and the

charges against him,” the July 17, 2007 unsealing of the govern­

ment’s complaint containing the allegedly false statements, and a

July 17, 2007 probable cause hearing), ECF No. 1-1 at 217-21.

App. 22

is warranted if the proposed claim would not survive a

motion to dismiss.” Onyewuchi v. Gonzalez, 267 F.R.D.

417, 420 (D.D.C. 2010) (citing James Madison Ltd. v.

Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)); see also

Williams v. Lew, 819 F.3d 466, 471 (D.C. Cir. 2016). In

other words, “review for futility ‘is, for practical pur­

poses, identical to review of a Rule 12(b)(6)’ motion to

dismiss.” Driscoll v. George Washington Univ., 42

F. Supp. 3d 52, 57 (D.D.C. 2012) (quoting In re Inter­

bank Funding Corp. Sec. Litig, 629 F.3d 213, 215-16

(D.C. Cir. 2010)).

Even applying the liberal pro se pleading stan­

dards, Mr. Carr’s proposed amendment would not sur­

vive a motion to dismiss. Mr. Carr’s proposed inten­

tional tort claims challenge the same conduct by the

same actors challenged in the initial complaint, and

suffer from the same defects as that complaint.12 Thus,

Mr. Carr’s proposed intentional tort claims arising

12 In addition to the reasons laid out below, Mr. Carr’s pro­

posed complaint amendment cannot avoid the government’s sov­

ereign immunity. Although Mr. Carr characterizes his proposed

claims as “intentional torts” under the FTCA, see Pis. Mot. to

Amend at 1, in large part those claims are still based on alleged

constitutional violations, see id. at 11 (stating that in March 2007,

Mr. Carr was “taken at gunpoint by over [twenty-five] federal

agents . . . was not read [his] Miranda rights,” and “did not talk

to an [attorney for [nine] months of incarceration.”). Again, sov­

ereign immunity shields the United States from money damages

arising from its own alleged constitutional violations and those of

its agencies and its employees in their official capacities; immun­

ity that the FTCA does not waive. See Epps, 575 F. Supp. 2d at

238.

App. 23

from pre-2007 conduct are barred by res judicata,13

And Mr. Carr’s proposed intentional tort claims arising

from more recent conduct are subject to the two-year

statute of limitations established by the FTCA. See 28

U.S.C. § 2401(b) (“A tort claim against the United

States shall be forever barred unless it is presented

in writing to the appropriate Federal agency within

two years after such claim accrues

.”). They are time

barred for the reasons stated above.14 Because Mr.

Carr’s proposed complaint amendment would not sur­

vive a motion to dismiss, the court denies Mr. Carr’s

motion to amend as futile.

V. CONCLUSION

For the foregoing reasons, the Court hereby OR­

DERS that the government’s Motion to Dismiss

(ECF No. 7) is GRANTED and Mr. Carr’s Motion to

Amend the Complaint (ECF No. 14) is DENIED. The

Court FURTHER ORDERS that this action is

13 Even if Mr. Carr did not assert identical intentional tort

claims in his 2006 complaint, res judicata still applies because

Mr. Carr could have raised those claims in 2006. See Ashbourne,

245 F. Supp. 3d at 104 (barring the plaintiffs claims under res

judicata, [although [the plaintiff] [] pursued different legal

claims . . . than” in the earlier matter, because the claims shared

the same nucleus of facts).

14 In addition, 28 U.S.C. § 2675 requires that, prior to filing

an FTCA suit against the federal government or a federal agency,

a plaintiff “present [] the claim to the appropriate [f]ederal

agency.” This requirement is jurisdictional. See Jackson v. United

States, 730 F.2d 808, 809 (D.C. Cir. 1984). Mr. Carr has not

demonstrated that he made such a demand before seeking to

amend his complaint to add FTCA claims.

App. 24

DISMISSED WITH PREJUDICE. An order con­

sistent with this Memorandum Opinion is separately

and contemporaneously issued.

Dated: February 25,2019 RUDOLPH CONTRERAS

United States District Judge

App. 25

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JERRY L. CARR,

Plaintiff,

Civil Action No.:

18-356 (RC)

v.

JEFFERSON B. SESSIONS,

et al.

Re Document Nos.:

7,14

Defendants.

ORDER

(Filed Feb. 25, 2019)

Granting Defendants’ Motion to Dismiss;

Denying Plaintiff’s Motion to Amend

the Complaint

For the reasons stated in the Court’s Memoran­

dum Opinion separately and contemporaneously is­

sued, it is hereby ORDERED that the government’s

Motion to Dismiss (ECF No 7) is GRANTED and Mr.

Carr’s Motion to Amend the Complaint (ECF No 14) is

DENIED. It is FURTHER ORDERED that this ac­

tion is DISMISSED WITH PREJUDICE

THIS IS A FINAL APPEALABLE ORDER. SO

ORDERED.

Dated: February 25,2019 RUDOLPH CONTRERAS

United States District Judge

App. 26

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

United States of America,

Plaintiff,

Case No. l:07-cr-00107

v.

Judge Michael R. Barrett

Jerry L. Carr,

Defendant

ORDER

This matter is before the Court on Jerry Carr’s pro

se Motion to Clear Defendant’s Record, Remove Label

of Mentally Ill, and Vacate Judge Manos’s Sanction

(Doc. 53). The Court held a hearing as to Mr. Carr’s mo­

tion on August 4, 2011. After hearing from Mr. Carr.

and considering the issues raised in his motion and ex­

hibit book, the Court finds that Mr. Carr’s requests are

better suited for another forum. This Court is without

jurisdiction to address the specific allegations raised

by Mr. Carr, as each complaint is subject to separate

state or federal remedies which Mr. Carr must petition

in the appropriate forums. Therefore, Mr. Carr’s mo­

tion is DENIED.

IT IS SO ORDERED.

s/ Michael R. Barrett

Michael R. Barrett

United States District Judge

App. 27

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JERRY L. CARR, et al.,

Plaintiffs,

v.

FROST, BROWN & TODD,

et al.,

Civil Action No

06-1893 (JR)

Defendants.

ORDER

For the reasons stated in the accompanying mem­

orandum, the complaint in this action is dismissed

with prejudice. The Clerk is directed to certify a copy

of the record to the United States District Court for the

Northern District of Ohio for such consideration as it

may wish to give to whether the filing and prosecution

of this case was a contemptuous violation of that

Court’s order of July 10,1991 in case no. C2-90-360.

JAMES ROBERTSON

United States District Judge

App. 28

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SHARON RENNICK

JERRY CARR,

Plaintiffs,

v.

STATE OF OHIO

ATTORNEY GENERAL,

) CASE NO. C2-90-J60

)

)

)

)

)

)

Judge John M. Manos

ORDER

ANTHONY CALABRESE, ) (Filed Jul. 10, 1991)

)

et al.,

Defendants.

)

)

Pursuant to the Memorandum of Opinion issued

in the above-captioned case this date, plaintiffs’ motion

to. amend the complaint is denied; the case is dis­

missed, and the motion to bar further litigation is

granted. Plaintiffs are permanently enjoined from fil­

ing any action in the United States District Court for

the Southern District of Ohio without obtaining leave

of the court. They are further enjoined from filing in

any court, an action against any state or federal judge,

or any officer or employee of any court, for actions

taken in the course of their official duties. In seeking

leave of court, plaintiffs must file a motion certifying

App. 29

that the new complaint was never previously dis­

missed on the merits.

IT IS SO ORDERED.

/s/

John M. Manos

UNITED STATES DISTRICT JUDGE