Opinion
Civil Action No. 04-0316 (GK).
March 14, 2005
MEMORANDUM OPINION
This matter is before the Court on Defendants' motions to dismiss or, in the alternative, to transfer. Having considered the motions, Plaintiff's oppositions thereto, including the Supplemental Opposition submitted by his retained counsel, and the entire record of this case, the Court will transfer this action to the Eastern District of Virginia.
I. BACKGROUND
Plaintiff alleges that he broke his right femur on February 27, 2003 while playing basketball in the gymnasium at the Federal Correctional Institution in Petersburg, Virginia ("FCI Petersburg"). Compl., ¶ 13. Immediately after the injury, Plaintiff alleges that he was taken to the clinic for an x-ray, was told that he only had torn a muscle, and was given medication for pain. Id., ¶¶ 14-16. He alleges that he continued to experience swelling and severe pain in his right leg. Id., ¶¶ 18-26.
On March 5, 2003, an x-ray revealed that Plaintiff indeed had fractured his femur. Compl., ¶ 29. Plaintiff was taken to a hospital and underwent surgery on March 8, 2003. Id., ¶ 30. Upon his discharge from the hospital on March 20, 2003, and in the following weeks, Plaintiff continued to experience severe pain and he received medication for pain. Id., ¶¶ 51, 54. On October 30, 2003, Plaintiff underwent a second surgical procedure to remove the rod and pins from his leg. Id., ¶ 55. Although he was to have received a brace for his leg immediately after surgery, Plaintiff did not receive a brace until December 12, 2003. Id., ¶ 56.
Plaintiff has filed three additional papers, all of which relate to subsequent events pertaining to his medical care and treatment at FCI Petersburg. See Dkt. # 28, 33, 34.
Plaintiff brings this action against the United States Department of Justice, the Director of the Federal Bureau of Prisons ("BOP"), several BOP staff members at FCI Petersburg, the facility's Warden, and the BOP staff who handled Plaintiff's administrative grievances. He contends that Defendants conspired to deprive him of his rights under the First, Fifth, and Eighth Amendments to the United States Constitution. Compl., ¶¶ 61-68. For these alleged constitutional violations, Plaintiff demands a declaratory judgment and compensatory and punitive damages. Id. at 13-14 (page numbers supplied). In addition, Plaintiff brings a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Id. at 1.
II. DISCUSSION
A. The Court lacks personal jurisdiction over individual defendants Allen, Laybourn, Zayas, Fajardo, Wheeler, Janzen, Brooks, and Mellady.Plaintiff concedes that the Court lacks personal jurisdiction over individual defendants Allen, Laybourn, Zayas, Fajardo, Wheeler, Janzen, Brooks, and Mellady. Pl.'s Supp. Opp. at 2.
Plaintiff named the "administrative remedy coordinator" at FCI Petersburg as a defendant in this matter. Defendants' counsel identifies her as Cornelia Janzen. Counsel also represents that "Mellady" is the correct spelling of the Defendant Plaintiff identifies as "Mallady." Although Defendants' counsel argues that the Court lacks personal jurisdiction over Defendant Edgar Morales, it does not appear that Plaintiff names him as a Defendant to this action.
B. The complaint fails to state a claim against Defendant Lappin.
Plaintiff brings Bivens claims against Lappin in his individual capacity. As Director of the BOP, Lappin has supervisory and oversight responsibility for the agency's activities. Plaintiff does not allege that Lappin approved of a policy or otherwise acted in his capacity as BOP's Director in a way that caused Plaintiff injury. To the extent that Plaintiff's theory of the case is to hold Lappin liable for the allegedly unconstitutional acts of his subordinates, such a theory cannot prevail. Lappin's status as the agency's head does not render him liable for the alleged wrongful acts of the agency's employees. See Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978) ( respondeat superior liability cannot form the basis of liability for a § 1983 claim); see also Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993) (complaint naming Attorney General and BOP Director as defendants based on theory of respondeat superior, without allegations specifying their involvement in the case, do not state Bivens claim).
C. Venue in this district is improper.
"Courts in this jurisdiction must 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 at 256.
In a civil action where the Court's jurisdiction is not based solely on diversity of citizenship, as in this case, venue is proper in "(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(b). Under these criteria, venue in this district is not proper. Plaintiff's claims stem from an injury sustained at FCI Petersburg, and subsequent medical treatment rendered by staff at FCI Petersburg or at their direction. A substantial part of the events or omissions giving rise to Plaintiff's claims occurred elsewhere — in the Eastern District of Virginia where FCI Petersburg is located.
D. Transfer of this action to the Eastern District of Virginia is in the interest of justice.
In a case filed in a jurisdiction in which venue is improper, the Court may dismiss the action, or in the interest of justice, may transfer the action to any other district where it could have been brought. 28 U.S.C. § 1406(a). The decision to dismiss or transfer an action in the interest of justice is left to the discretion of the Court. See Novak-Canzeri, 864 F.Supp. at 207. The Court may transfer an action even though it lacks personal jurisdiction over the defendants. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983), cert. denied, 467 U.S. 1210 (1984). The Court will transfer this action to the Eastern District of Virginia, the district in which venue is proper and in which most of the events giving rise to Plaintiff's claims occurred.
E. Plaintiff's Federal Tort Claims Act claim will be dismissed without prejudice.
The FTCA grants federal district courts jurisdiction over claims arising from certain torts committed by federal employees in the scope of their employment. See 28 U.S.C. § 1346. The FTCA bars a plaintiff from bringing a civil action in district court before he has exhausted his administrative remedies. See McNeil v. United States, 508 U.S. 106, 113 (1993). A plaintiff exhausts after he presents his claim to the appropriate federal agency and the agency denies the claim in writing. See 28 U.S.C. § 2675(a). If an agency fails to make a final disposition within six months after the filing of the claim, the plaintiff may file suit thereafter. See id.
Plaintiff establishes that he submitted an administrative tort claim to the United States Department of Justice, Civil Division, Torts Branch, in September 2004. See Civil Statement, Attach. [Dkt. #33]; Pl.'s Supp. Op. at 5. Justice Department staff forwarded the claim to BOP. Civil Statement, Attach. Plaintiff initiated this civil action, however, in February 2004. His FTCA claim, then, is premature. This defect cannot be cured by amendment of the complaint at a later date. "Allowing claimants generally to bring suit under the FTCA before exhausting their administrative remedies and to cure the jurisdictional defect by filing an amended complaint would render the exhaustion requirement meaningless and impose an unnecessary burden on the judicial system." Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999); see Schneider v. Kissinger, 310 F.Supp.2d 251, 269-70 (D.D.C. 2004) (FTCA claim of plaintiffs who submitted administrative claim before filing suit was not allowed to proceed upon filing of amended complaint adding FTCA claim after formal denial of administrative claim). Because Plaintiff had not exhausted his administrative remedies under the FTCA before initiating this civil action, the Court will dismiss the FTCA claim without prejudice for lack of subject matter jurisdiction. See McNeil v. United States, 508 U.S. at 110-11 (a plaintiff cannot maintain an FTCA action if he failed to exhaust administrative remedies prior to filing suit, even if he does so before substantial progress has occurred in the litigation).
III. CONCLUSION
The Court concludes that the complaint fails to state a claim against Harley Lappin, and that Plaintiff failed to exhaust his administrative remedies with respect to his claim under the Federal Tort Claims Act. The Court further concludes that it lacks personal jurisdiction over Defendants Allen, Laybourn, Zayas, Fajardo, Wheeler, Janzen, Brooks, and Mellady, and that venue in this district is improper. The Court will dismiss the FTCA claim for lack of subject matter jurisdiction, and transfer this action to the United States District Court for the Eastern District of Virginia. An Order consistent with this Memorandum Opinion is issued separately.