Opinion
Civil Action No. 03-0214 (JDB).
May 20, 2005
Freddie Stokely, Sr., Cartersville, GA, Plaintiff pro se.
Peter Blumberg, United States Attorney's Office Civil Division, Washington, DC, Counsel for Defendant Bureau of Prisons.
ORDER
Plaintiff Freddie Stokely, Sr. brings this action pro se against the United States Bureau of Prisons and the Duke University Medical Center, alleging malpractice arising out of surgery performed at the Medical Center while plaintiff was incarcerated at the Federal Correction Complex at Butner, North Carolina ("FCC Butner"). The Bureau of Prisons has moved to dismiss the complaint, arguing in part that venue does not lie in this district and that dismissal or transfer of the action is therefore required. The Court agrees that venue is improper in this district, and concludes that the appropriate outcome in the circumstances of this case is to transfer the action to the United States District Court for the Northern District of Georgia.
The Bureau of Prisons filed its motion to dismiss on April 22, 2003. Plaintiff failed to respond to the motion to dismiss. The case was reassigned to this judge on October 12, 2004, and on October 29, 2004, this Court issued an order directing plaintiff to respond to the motion to dismiss within fourteen days of the order. When plaintiff failed to respond to that order as well, this Court dismissed the action on November 16, 2004, for failure to prosecute. On January 3, 2005, this Court vacated the dismissal on the basis of representations from the plaintiff that he had not received the earlier orders of the Court because he had been committed for observation by the Bureau of Prisons, and that he was too sick to respond. This Court required plaintiff to respond to the Bureau of Prison's motion to dismiss by February 2, 2005. Plaintiff filed a "partial response" to the motion to dismiss on February 1, 2005. Plaintiff mailed an additional filing directly to chambers on April 4, 2005, that is not materially different from the February 1, 2005, partial response.
Although plaintiff does not identify a cause of action in his complaint, the Court interprets the complaint to be seeking damages under the Federal Tort Claims Act ("FTCA"), the exclusive remedy for tort claims against the federal government. See 28 U.S.C.A. § 2679(a); United States v. Smith, 499 U.S. 160, 165 (1991). Venue is therefore governed by 28 U.S.C. § 1402, which provides that an FTCA claim may be brought only in the district where the plaintiff resides or in which the alleged tort occurred. See 28 U.S.C. § 1402(b); Reuber v. United States, 750 F.2d 1039, 1046 (D.C. Cir. 1984). Plaintiff resided in Smyrna, Georgia when he filed the complaint, and lives in Cartersville, Georgia today. The alleged malpractice occurred at the Duke University Medical Center in Durham, North Carolina, or perhaps at FCC Butner, also in North Carolina. Therefore, venue lies only in the Northern District of Georgia or the Eastern District of North Carolina.
Plaintiff does not dispute that his claim is one under the FTCA, although he suggests in his response that his suit was also filed under the Americans with Disabilities Act ("ADA"). Partial Response at ¶ 16. The Court has carefully reviewed plaintiff's complaint and finds no reference to the ADA. At any rate, the ADA cannot be asserted against the federal government, see Woodruff v. Mineta, 215 F. Supp. 2d 135, 138-39 (D.D.C. 2002), and venue would not lie in this district for any ADA action against Duke University Medical Center, 28 U.S.C. § 1391(b).
A district court presiding over an action in which venue is improper "shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). Generally, the interest of justice requires the transfer of a section 1406(a) case to an appropriate judicial district rather than its dismissal.Neubrech v. Am. Nat'l Red Cross, No. 04-995, 2005 WL 485185, at *2 (D.D.C. Mar. 2, 2005). The Court finds that transfer to the Northern District of Georgia would best serve the interest of justice in this case. Plaintiff is a pro se litigant with several disabilities who resides in the Northern District of Georgia. Plaintiff has also filed a motion to amend the complaint to add several new claims that arise out of events that appear to have taken place in the Northern District of Georgia. Should the transferee court grant the motion and allow the additional claims to proceed, venue for those claims would lie in the Northern District of Georgia (and not, it would seem, in the Eastern District of North Carolina). In these circumstances, the Court concludes that transfer of this action to the Northern District of Georgia is the proper result.
Accordingly, for the foregoing reasons, the Court grants in part and denies in part the defendant's motion to dismiss for lack of venue. The Clerk of the Court is directed to transfer this action pursuant to 28 U.S.C. § 1406(a) to the United States District Court for the Northern District of Georgia.
IT IS SO ORDERED.