AMY BERMAN JACKSON, District Judge.
Plaintiff, Alonzo Scurlock, brings this action pro se, seeking damages for harms incurred while he was a prisoner at United States Penitentiary Lee in Jonesville, Virginia. He has named as defendants the Federal Bureau of Prisons ("BOP"), former director of the BOP Harley Lappin,
Defendants have moved to dismiss the action under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, 12(b)(3) for improper venue, 12(b)(4) for insufficient process, 12(b)(5) for insufficient service of process, and 12(b)(6) for failure to state a claim upon which relief may be granted. Defs.' Mot. at 1. The Court will grant in part defendants' motions to dismiss under Rule 12(b)(1), and it will exercise its discretion to transfer the remaining claims to the Western District of Virginia in order to cure defects in venue and because it finds transfer to be in the interest of justice. In light of the Court's decision to transfer, the Court does not reach the remaining motions to dismiss.
Plaintiff alleges that he arrived at United States Penitentiary ("USP") Lee on June 16, 2008, four days after undergoing surgery on his left shoulder. Compl. at 4-5. At the time of the alleged violations, all defendants worked at USP Lee except Norwood, who worked in Philadelphia as the Regional Director of the Northeast Region of the BOP, and Lappin, who worked in Washington, D.C. as the Director of the BOP. Compl. at 2-4; Defs.' Mot. at 20.
The complaint alleges that on June 23, 2008, "[defendant] Crowe viciously attacked Plaintiff Scurlock, ripping Plaintiff's surgical arm out of a sling and placing both arms in handcuffs and slamming Plaintiff down on the floor, face first." Compl. at 6. Crowe continued to "intimidate[], harass[], punish[] and sexually assault[] Plaintiff," causing "a wanton and unnecessary infliction of pain." Id. at 7-8. Plaintiff also claims that he was "false[ly] imprison[ed]" by Crowe for as long as forty-three minutes. Id. at 9, 16. In addition, plaintiff alleges that Crowe conspired with other named defendants to "reach[] an understanding and engage[] in a course
The complaint goes on to allege that defendants' actions were conducted pursuant to the "de facto policies, practices and/or customs of the Defendant Bureau of Prisons," which included "[c]onducting physically, psychologically or otherwise illegally or improperly coercive threats," "[f]iling ... false reports and giving false statements and false information about said incident," and "fail[ing] to properly train, supervise, discipline, transfer, monitor, counsel and/or otherwise control rough prison guards." Compl. at 11-12. Plaintiff alleges that these policies were "specifically admitted to by prison guards." Id. at 13.
Plaintiff claims that as a result of these abuses, he "was injured and experienced and continues to experience severe emotional distress, including fear of being placed in harm's way, nightmares, sleep disruption, symptoms of Post Traumatic Stress Disorder, anxiety, depression and inability to focus or concentrate." Id. at 17.
Although the complaint does not contain enumerated claims, the Court construes it as alleging that defendants: (1) violated the First, Fourth, Fifth, Sixth, and Eighth Amendments of the United States Constitution (all defendants in their individual and official capacities); (2) engaged in a conspiracy to deny plaintiff's constitutional rights (all defendants in their individual and official capacities); (3) engaged in common-law false imprisonment (defendants Crowe, Pitts, Peliter, and Chamlee in their individual and official capacities); and (4) engaged in common-law assault (defendant Crowe in his individual and official capacity).
Defendants first argue that the BOP and the other defendants in their official capacities have not waived their sovereign immunity for plaintiff's constitutional tort and conspiracy claims, and that those claims should, therefore, be dismissed for lack of subject matter jurisdiction.
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v.
When considering a motion to dismiss for lack of jurisdiction, a court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000), citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).
A pro se complaint is held to a less stringent standard than other complaints. Curran v. Holder, 626 F.Supp.2d 30, 33 (D.D.C.2009). However, "even a pro se plaintiff bears the burden of establishing that the Court has subject matter jurisdiction." Newby v. Obama, 681 F.Supp.2d 53, 55 (D.D.C.2010) (internal quotation marks and citations omitted).
Plaintiff brings his claims against defendants both in their individual capacities and in their official capacities as federal employees. "[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). The Court lacks subject matter jurisdiction over claims against the United States unless it has waived sovereign immunity. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."); United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("[T]he United States may not be sued without its consent and ... the existence of consent is a prerequisite for jurisdiction."). A waiver of sovereign immunity "must be unequivocally expressed in statutory text." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996).
Plaintiff's constitutional tort claim against the United States is a Bivens-style action seeking civil damages for violations of the Constitution by federal employees. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, "the United States has not consented to be sued for monetary damages based on a constitutional violation or, in other words, for a `Bivens-type cause of action directly against a federal agency.'" Mullen v. Bureau of Prisons, 843 F.Supp.2d 112, 116 (D.D.C.2012), quoting Meyer, 510 U.S. at 484, 114 S.Ct. 996. The Court will therefore grant defendants' motion to dismiss the constitutional tort claims against the BOP and the individual defendants in their official capacities for lack of subject matter jurisdiction.
Plaintiff appears to raise his conspiracy claim against the United States under 42 U.S.C. section 1985(3), which allows for civil damages where two or more individuals "conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws[.]" 42 U.S.C. § 1985(3) (2006). However, "[section 1985(3)] does not waive the United States' sovereign immunity." White v. United States, 791 F.Supp.2d 156, 161 (D.D.C. 2011), quoting Dye v. United States, 516 F.Supp.2d 61, 71 (D.D.C.2007) (internal quotation marks omitted). Therefore, the Court will also dismiss plaintiff's conspiracy claim for lack of subject matter jurisdiction.
Defendants next argue that the Court lacks personal jurisdiction over all defendants in their individual capacities except for Lappin because those defendants do not have sufficient contacts with the District of Columbia.
It is the plaintiff who bears the burden of establishing personal jurisdiction over each defendant. Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C.Cir.1990). In order to survive a motion to dismiss for lack of personal jurisdiction, the "plaintiff must make a prima facie showing of the pertinent jurisdictional facts." First Chi. Int'l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C.Cir.1988). To establish that personal jurisdiction exists, the plaintiff must allege specific acts connecting the defendant with the forum. In re Papst Licensing GMBH & Co. KG Litig., 590 F.Supp.2d 94, 97-98 (D.D.C.2008), citing Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C.Cir.2001). Plaintiff "cannot rely on conclusory allegations" to establish personal jurisdiction. Atlantigas Corp. v. Nisource, Inc., 290 F.Supp.2d 34, 42 (D.D.C. 2003).
"A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of ... personal jurisdiction[.]" Artis v. Greenspan, 223 F.Supp.2d 149, 152 (D.D.C.2002). However, "the plaintiff is not required to adduce evidence that meets the standards of admissibility reserved for summary judgment and trial; rather, [he] may rest [his] arguments on the pleadings, `bolstered by such affidavits and other written materials as [he] can otherwise obtain.'" Urban Inst. v. FINCON Servs., 681 F.Supp.2d 41, 44 (D.D.C.2010), quoting Mwani v. bin
The only contacts that plaintiff identifies between the individual defendants (other than Lappin) and the District of Columbia are defendants' employment by a federal agency that is headquartered in the District.
In considering a motion for improper venue under Rule 12(b)(3), "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." Pendleton v. Mukasey, 552 F.Supp.2d 14, 17 (D.D.C.2008) (internal quotation marks and citations omitted).
Plaintiff asserts two tort claims against the United States here: assault and false imprisonment. The Federal Tort Claims Act ("FTCA") provides that any "tort claim against the United States... may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402(b) (2006). Plaintiff, however, does not allege that he resides in the District of Columbia or that the acts complained of occurred in the District of Columbia. As to plaintiff's residence, the D.C. Circuit has held that for venue purposes, a prisoner "resides" where he is incarcerated. In re Pope, 580 F.2d 620 (D.C.Cir.1978). Plaintiff alleges that he is an inmate in Fort Dix, New Jersey, Scurlock Aff. ¶ 50, so, for the venue analysis, he resides in the District of New Jersey, not in the District of Columbia.
Although lack of personal jurisdiction and venue are sufficient reasons for the Court to dismiss claims, the Court is permitted to instead exercise its discretion to transfer those claims to an appropriate district. 28 U.S.C. § 1406(a) (2006) (providing district courts with authority to transfer on the grounds of improper venue); Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.Cir.1983) ("A court may transfer a case to another district even though it lacks personal jurisdiction over the defendants"); see also Shipley v. Bureau of Prisons, 729 F.Supp.2d 272, 275 (D.D.C.2010) (transferring case for lack of venue). And even though this Court declines to find that it lacks personal jurisdiction or venue over the claims against defendant Lappin, it is permitted, "[f]or the convenience of parties and witnesses, in the interest of justice," to transfer those claims to another district "where they might have been brought." 28 U.S.C. § 1404(a) (2006). The Court finds it appropriate here — where several claims are barred by improper venue, others by lack of personal jurisdiction, and still others are properly before this Court but based primarily on facts that took place elsewhere — to transfer the case to a district where venue is proper: the Western District of Virginia.
The Court has "broad discretion to decide whether transfer from one jurisdiction to another is proper." Nat'l Wildlife Fed'n v. Harvey, 437 F.Supp.2d 42, 45 (D.D.C.2006), citing SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C.Cir.1978). The decision to transfer is made by an "individualized, case-by-case consideration of convenience and fairness." Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).
Section 1404(a) permits transfer only to a district where the case "might have been brought," which requires consideration of the threshold question of whether the "transferee court [is] a place of proper venue." Spaeth v. Michigan State Univ. College of Law, 845 F.Supp.2d 48, 57 (D.D.C.2012) (alteration in original), quoting In re Scott, 709 F.2d 717, 720 (D.C.Cir. 1983). Venue is proper in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred...." 28 U.S.C. § 1391(b)(2). In this case, venue is proper in the Western District of Virginia because defendants engaged in the conduct that led to plaintiff's alleged injury in that district.
In exercising its broad discretion once the threshold question has been established, the Court must balance case-specific factors that include both the private interests of the parties and public interests such as efficiency and fairness. See Wilderness Soc'y v. Babbitt, 104 F.Supp.2d 10, 12 (D.D.C.2000). The private-interest factors to be considered include: (1) the plaintiff's choice of forum, unless the balance of convenience weighs strongly in favor of the defendants; (2) the defendants' choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses, but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and (6) the ease of access to sources of proof. Trout Unlimited
While courts should give deference to a plaintiff's choice of forum, this deference is weakened if plaintiff is not a resident of the forum or if another "jurisdiction has the stronger factual nexus." Peter B. v. CIA, 620 F.Supp.2d 58, 66 (D.D.C.2009), quoting Miller v. Insulation Contractors, Inc., 608 F.Supp.2d 97, 102 (D.D.C.2009) (internal quotation marks omitted). In this case, the events on which the claims are based took place at USP Lee, the alleged harm was inflicted there, and most of the witnesses and evidence reside there. Furthermore, it is in the interest of justice to transfer all of plaintiff's claims to a court that has jurisdiction and venue to hear them, rather than to retain some of the claims in this Court and to transfer or dismiss others. Therefore, the Court finds that it would be "for the convenience of parties and witnesses [and] in the interest of justice" to transfer the remaining claims to the Western District of Virginia under 28 U.S.C. sections 1404(a) and 1406(a).
For the foregoing reasons, the Court will grant defendants' motion to dismiss plaintiff's constitutional tort and conspiracy claims against defendant Bureau of Prisons and the other defendants in their official capacities for lack of subject matter jurisdiction under Rule 12(b)(1), and it will transfer the remaining claims to the United States District Court for the Western District of Virginia under 28 U.S.C. sections 1404(a) and 1406(a). A separate order will issue.
