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