Opinion

Brizuela v. West Virginia Board of Osteopathic Medicine

Court
District Court, M.D. Pennsylvania
Filed
Aug 18, 2022
Cited by
0 cases
Authority
More cited than 29.1%

a dispositive order is one that “terminates the matter in the federal court”

How later courts described this case

  • a dispositive order is one that “terminates the matter in the federal court”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

FELIX BRIZUELA, ) CIVIL ACTION NO. 1:22-CV-1288

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

WEST VIRGINIA BOARD OF )

OSTEOPATHIC MEDICINE, )

Defendant )

MEMORANDUM OPINION

On August 17, 2022, Dr. Felix Brizuela lodged two separate complaints here

in the Middle District of Pennsylvania. Both complaints arrived by mail. They are:

1. Brizuela v. State Board of Osteopathic Medicine (PA), 1:22-cv-1249-WIA;1

and,

2. Brizuela v. West Virginia Board of Osteopathic Medicine, 1:22-cv-1288-

WIA.

Both complaints were accompanied by an application for leave to proceed in forma

pauperis. This Court has a statutory obligation to conduct a preliminary review of

pro se complaints brought by litigants seeking leave to proceed in forma pauperis.

E.g., 28 U.S.C. ' 1915(e)(2).

1 I reviewed the Complaint against the Pennsylvania Board, found that venue was

proper in the Middle District of Pennsylvania, granted IFP, and screened the

complaint by written order. Brizuela v. State Board of Osteopathic Medicine (PA),

1:22-cv-1287-WIA, (Doc. 6).

After careful review of the complaint against the West Virginia Osteopathic

Board I find no connection to the Middle District of Pennsylvania. Accordingly, this

case will be transferred to the Southern District of West Virginia, a court with at

least plausible venue for further proceedings. I have not ruled on the IFP request or

conducted a full screening on the merits. Those tasks should be done in the proper

venue.

In the complaint against the West Virginia Osteopathic Board Dr. Brizuela

alleges that the West Virginia Board discriminated against him and improperly

revoked his medical license. His complaint deals only with the case of a patient,

Heather Sneberger in 2016. It is clear from the face of the complaint that she was a

patient in West Virginia. There are no facts alleged in Pennsylvania, much less the

Middle District.

Last week Dr. Brizuela filed five cases here in the Middle District of

Pennsylvania relating to his criminal convictions in West Virginia. All five

complaints arrived by mail. They are:

1. Brizuela v. Federation of State Medical Boards, 1:22-cv-1249-WIA;

2. Brizuela v. Sarah Wagner, 1:22-cv-1250-WIA;

3. Brizuela v. Douglas Saghrue, 1:22-cv-1251-WIA;

4. Brizuela v. Michael DeRiso, 1:22-cv-1252-WIA; and,

5. Brizuela v. WVU Medical Center, 1:22-cv-1257-WIA.

I transferred those five cases to the Northern District of West Virginia where the trial

and plea occurred. They have all been docketed in the Northern District. This case

however deals with the West Virginia licensing Board, which is located at 405

Capitol Street, Suite 402, Charleston, WV 25301, in the Southern District of West

Virginia.

In this case, venue over this matter appears to lie in the United States District

Court for the Southern District of West Virginia and not in the Middle District of

Pennsylvania. To protect Plaintiff’s rights as a pro se litigant, I will order this

complaint transferred to the United States District Court for the Southern District of

West Virginia for further proceedings. Such a transfer order avoids any prejudice to

Plaintiff which might flow from a dismissal of these actions on venue grounds. See

Burnett v. New York Cent. R. Co., 380 U.S. 424, 430 (1965). Moreover, addressing

the lack of venue in this fashion would not constitute a ruling on the merits of

Plaintiff’s claims, thus assuring that he can have this case heard on its merits in the

proper forum. See, 18 Wright, Miller & Cooper, FEDERAL PRACTICE AND

PROCEDURE, §4436, at 338 (stating that “a dismissal for lack of jurisdiction or

improper venue does not operate as an adjudication upon the merits”) (footnote

omitted).

The decision to transfer a case is within the jurisdiction and sound discretion

of a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(A), subject to

appeal to the district court for an abuse of that discretion. See Franklin v. GMAC,

No. 13–0046, 2013 WL 140042, at * 1 n.1 (W.D. Pa. Jan. 10, 2013) (“Orders to

transfer are not listed as dispositive . . . A Magistrate Judge may rule on such matters

pursuant to 28 U.S.C. § 636(b)(1)(A). See, e.g., Silong v. United States, 2006 WL

948048, at *1 n. 1 (M.D. Fla. 2006). See also In re U.S. Healthcare, 159 F.3d 142,

145 (3d Cir. 1998) (a dispositive order is one that “terminates the matter in the

federal court”). This is true “because [the ruling] can only result in the transfer of a

case to another federal district, not in a decision on the merits or even a determination

of federal jurisdiction.” Adams v. Key Tronic Corp., 1997 WL 1864, at *1 (S.D.N.Y.

1997) (collecting cases); Berg v. Aetna Freight Lines, 2008 WL 2779294, at *1

(W.D. Pa. 2008) (“A motion to transfer venue pursuant to 28 U.S.C. § 1404(a)

involves a non-dispositive pretrial matter which a magistrate judge may determine

pursuant to 28 U.S.C. § 636(b)(1)(A)”) (collecting cases)).

[The next page contains the conclusion.]

CONCLUSION

For these reasons, this case will be transferred to the United States District

Court for the Southern District of West Virginia for all further proceedings.

An appropriate order follows.

Date: August 18, 2022 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.