ROSEMARY M. COLLYER, United States District Judge.
In a complaint filed pro se in the Superior Court of the District of Columbia, plaintiff Wallace Mitchell accuses three high-level officials of the Bureau of Prisons, including former Director Charles E. Samuels, Jr., of (1) attempting to cause his "wrongful death" by knowingly feeding him soy meals to which he was allergic; (2) ordering the destruction of his legal materials; and (3) acting with deliberate indifference to his mental health needs by changing his "diagnosis from paranoid schizophrenia, to antisocial personality disorder." Compl. at 1, 3 [Dkt. 1-1]. In addition to Samuels, Mr. Mitchell sues Chief Dietitian Mitchel Holliday and Chief Psychiatrist Donald Lewis, all in their personal and official capacities. Mr. Mitchell seeks injunctive and declaratory relief and $133,000 in monetary damages.
On March 7, 2016, the Civil Division Chief of the Office of the United States Attorney for the District of Columbia certified that at the relevant time the named defendants "were federal employees acting within the scope of their respective office or employment." Removal Not. ¶ 5 [Dkt. 1]. Defendants then removed the case to this Court pursuant to 28 U.S.C. § 2679(d)(2). Defendants now move to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, improper service, improper venue, and failure to state a claim upon which relief can be granted. Since the alleged acts giving rise to Mr. Mitchell's claims occurred during his incarceration in Colorado, the Court will grant Defendants' motion on the sole ground of improper venue.
Mr. Mitchell is serving a prison sentence of twenty years to life for first-degree murder and related crimes imposed in 1991 by the Superior Court of the District of Columbia. See Mitchell v. U.S. 629 A.2d 10, 11 n. 2 (D.C.1993). In July 2014, Mr. Mitchell was transferred to the D.C. Jail from the United States Penitentiary in Florence, Colorado, to attend post-conviction proceedings in Superior Court. He filed the instant civil complaint in Superior Court on October 30, 2015, while detained at the Jail. Mr. Mitchell alleges the following three occurrences.
Federal Rule of Civil Procedure 12(b)(3) provides that a case may be dismissed for improper venue upon motion. Kelly v. NovaStar, 637 F.Supp.2d 34, 37 (D.D.C.2009). "Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper." Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C.2003). However, "[i]n considering a Rule 12(b)(3) motion, the court accepts the plaintiff's well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff's favor, and resolves any factual conflicts in the plaintiff's favor." Darby v. U.S. Dep't of Energy, 231 F.Supp.2d 274, 276 (D.D.C.2002). To prevail on a motion to dismiss for improper venue, a defendant must present facts sufficient to defeat a plaintiff's assertion of venue. Id.; 2215 Fifth St. Assocs. v. U-Haul Int'l, Inc., 148 F.Supp.2d 50, 54 (D.D.C.2001) (citing 5A. Fed. Prac. & Proc.2d § 1352)).
The removal of this case from Superior Court informs the analysis of the venue question. "Once the Attorney General — or his authorized designee — certifies that a federal employee was acting within the scope of his or her employment at the time of the conduct giving rise to the claim, the `employee[s] are dismissed from the action, and the United States is substituted as defendant in place of the employee[s].'" Aviles-Wynkoop v. Neal, 978 F.Supp.2d 15, 19 (D.D.C.2013) (quoting Osborn v. Haley, 549 U.S. 225, 230, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (alterations in original)). The claims are then governed by the Federal Tort Claims Act ("FTCA"), which provides a limited waiver of sovereign immunity for civil actions seeking money damages from the United States.
The Court of Appeals instructs "[c]ourts in this circuit [to] examine challenges to personal jurisdiction and venue carefully to guard against the danger that a plaintiff might manufacture venue in the District of Columbia. By naming high government officials as defendants, a plaintiff could bring a suit here that properly should be pursued elsewhere." Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C.Cir.1993). FTCA claims are properly brought in "the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402(b). Since Mr. Mitchell is here temporarily from Colorado, which is where the alleged underlying events occurred, the United States District Court for the District of Colorado is the proper forum for litigating the FTCA claim.
Mr. Mitchell counters that this venue is proper because "all of the alleged acts or omissions occurred in Washington, D.C. where the Defendants work at BOP's headquarters." Pl.'s Opp'n at 3 [Dkt. 12]. But this assertion is undermined by the complaint's allegations, the administrative claims reviewed at USP Florence, and the declarations of Holliday and Lewis, who both live and maintain offices in Minnesota.
"When a plaintiff files an action in the wrong district, 28 U.S.C. § 1406(a) directs courts `to dismiss, or if it be in the interest of justice, transfer such case' to the proper venue." Darby, 231 F.Supp.2d at 277 (D.D.C.2002) (quoting 28 U.S.C. § 1406(a)). A transfer would not be in the interest of justice. Mr. Mitchell has accumulated more than the requisite number of dismissals under the Prison Litigation Reform Act ("PRLA") to preclude his filing cases in federal court in forma pauperis.
Because venue is improper here and a transfer is not in the interest of justice,
28 U.S.C. § 1346(b)(1).
28 U.S.C. § 1915(g).