Patel v. Phillips

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

KAMAL K. PATEL, )

)

Plaintiff, )

)

v. ) Civil Action No. 10-0749 (RWR)

)

YVONNE PHILLIPS, et al., )

)

Defendants. )

)

MEMORANDUM OPINION

This matter is before the Court on Plaintiff’s Motion for a Preliminary Injunction to

Compel Mandatory Necessary Medical Care [ECF No. 17], Defendants’ Motion to Dismiss

[ECF No. 67], Plaintiff’s Motion for a Continuance Under Fed. R. Civ. P. 56(f) to Enable

Plaintiff to Conduct Discovery Prior to Responding to the Defendants’ Arguments Concerning

the Discretionary Function Exemption In Its Motion to Dismiss [ECF No. 77], Plaintiff’s Motion

to Strike Scandalous and Impertinent Materials from Defendants’ Motion to Dismiss [ECF No.

81] and Plaintiff’s Motion for an Order for the Marshals Service to Effect Proper Service Upon

the Defendants in Compliance with the Federal Rules [ECF No. 82]. For the reasons discussed

below, Plaintiff’s Motion for an Order for the Marshals Service to Effect Proper Service Upon

the Defendants in Compliance with the Federal Rules [ECF No. 82] will be granted, all the other

motions will be denied, and Count One of the complaint will be transferred to the United States

District Court for the Northern District of Texas.

1

I. BACKGROUND

Plaintiff, a federal prisoner, is serving his sentence in the custody of the Federal Bureau

of Prisons (“BOP”). See Compl. ¶ 1. He brings this action under the Federal Tort Claims Act

(“FTCA”), see 28 U.S.C. § 1346, against the United States and under Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against three

individuals: Harley Lappin, former Director of the BOP, Yvonne Phillips, former Medical

Designator at the BOP’s Office of Medical Designations and Transportation (“OMDT”), and

Wendy Pomeroy, the Medical Designations official who allegedly is responsible for plaintiff’s

transfer from the Federal Medical Center in Butner, North Carolina (“FMC Butner”), to the

Moshannon Valley Correctional Center (“MVCC”) in Philipsburg, Pennsylvania, in 2008. See

Compl. ¶¶ 2-4. 1

Plaintiff’s causes of action arise from this transfer from FMC Butner, where he was

receiving medical treatment and therapy, to MVCC, a facility that he says was not equipped to

address his medical needs. See Compl. at 2 (Introduction). The complaint alleges negligence

(Count One), retaliatory transfer (Count Two), deliberate indifference to serious medical needs in

violation of the Eighth Amendment (Count Three), and emotional distress (Count Four). 2 See id.

¶¶ 76-83. He demands a declaratory judgment and injunctive relief against the BOP, and

monetary damages against the United States. See Compl. ¶¶ 5-6, 77, 85, 87. In addition, he

demands compensatory and punitive damages against the individual defendants in their

1

Pursuant to the March 29, 2011 Minute Order, Wendy Pomeroy was substituted for the

“Jane Doe” defendant named in the complaint.

2

Count Five of the complaint is a demand for injunctive relief “requiring that the [BOP],

Lappin, Phillips and [Pomeroy] or their authorized agent in the OMDT undo the . . . transfer . . .

and commence a new transfer . . . so that he can receive” necessary medical care. Compl. ¶ 85.

2

individual capacities, and declaratory and injunctive relief against them in their official

capacities. See id. ¶¶ 2-4, 80, 81, 83, 85.

A. Allegations of the Complaint

1. Plaintiff’s Medical Conditions

a. Herniated Disc

Plaintiff was diagnosed with a herniated disc in his neck for which cervical traction was

prescribed, “to be followed by surgery if the traction was unsuccessful.” Id. ¶ 12. He did not

receive the prescribed treatment, however, and instead “was transferred repeatedly between

various BOP facilities,” none of which could “provide the prescribed course of treatment” or

complete a course of treatment before plaintiff’s next transfer. 3 Id. ¶ 13. “After years of such

transfers and never fully completing the treatment,” plaintiff allegedly has experienced

“progressively worsening symptoms.” Id.

The herniated discs in plaintiff’s neck caused “atrophy, numbness, and loss of function.”

Id. ¶ 24. In August 2007, plaintiff underwent “surgery for disc replacement in his cervical

spine,” id., yet he “continued to experience further symptoms pertaining to other discs after the

surgery,” id. ¶ 25, the cause of which was “multiple disc protrusions,” id. Although a referral

was made “for further orthopedic evaluation,” plaintiff “was transferred before treatment” could

commence. Id. The transfer also interrupted physical therapy, id. ¶ 27, and he ceased to receive

painkillers in the form of Lidocaine patches to alleviate the “chronic and severe pain” he

continued to experience after surgery. Id. ¶ 28.

3

For example, plaintiff has alleged that, “[b]efore his physical therapy began, BOP

officials transferred [him] to a different prison, which did not have a cervical traction device.

Later, while awaiting an MRI and an appointment with a specialist at Federal Corrections

Institution . . . El Reno, BOP officials again transferred [plaintiff], this time to Federal Transfer

Center . . . Oklahoma City.” Patel v. United States, 398 F. App’x 22, 25 (5th Cir. 2010).

3

b. Ruptured Biceps Tendon

Plaintiff ruptured his biceps tendon “[i]n 2001, while incarcerated at FTC Oklahoma

City.” Patel v. United States, 398 F. App’x 22, 25 (5th Cir. 2010); see Compl. ¶ 21. An

orthopedic surgeon deemed it a “chronic rupture,” and “recommended an MRI to determine

whether the rupture could be repaired surgically.” Compl. ¶ 21. The MRI “confirmed the

rupture,” id., but further treatment was postponed “for reasons not relevant here,” id. ¶ 22, and

“the prison doctor” turned his attention to plaintiff’s “neck problems” instead, after which he was

to “make a referral to [the orthopedic surgeon] for the biceps tendon.” Id. Plaintiff was

transferred before the referral could be made. 4 Id. ¶ 23. Because of the transfer, the surgery

allegedly “was delayed to the point where it was no longer possible to repair the ruptured

tendon.” Patel, 398 F. App’x at 25.

c. Ankle Ossicles and Bone Spurs

Plaintiff “underwent surgery for ankle ossicles and bone spurs,” and after the procedure

he experienced “complications resulting in the formation of a nerve mass” which in turn caused

“numbness in the foot.” Compl. ¶ 26. Treatment in the form of cortisone injections into the

ankle nerve was unsuccessful. Id. Plaintiff was transferred before “scheduled . . . further

evaluation and treatment” took place. Id.

2. Plaintiff’s 2005 Lawsuit

According to plaintiff, his repeated transfers “between various BOP facilities [and]

placement at prisons which could not provide the prescribed course of treatment” meant that he

“never fully complet[ed] the treatment” he needed. Id. ¶ 13. He filed a lawsuit in the United

4

According to plaintiff, “an orthopedic surgeon . . . recommended that [plaintiff] receive

an MRI followed by surgery within sixty days of the date of the rupture. Three days after this

recommendation, BOP officials transferred [plaintiff] from FTC Oklahoma City to FCI Bastrop.”

Patel, 398 F. App’x at 25.

4

States District Court for the Northern District of Texas “seeking court intervention.” Id.; see

Patel v. United States, No. 05-CV-083-A (N.D. Tex. filed Feb. 7, 2005). Following the court’s

ruling on non-dispositive motions filed by plaintiff, see Patel v. United States, No. 05-CV-083,

2006 WL 453241 (N.D. Tex. Feb. 24, 2006), plaintiff was transferred from the Federal

Correctional Institution in Forrest City, Arkansas, to FMC Butner. 5 Compl. ¶ 18.

3. Treatment at FMC Butner and Transfer to MVCC

Treatment for plaintiff’s multiple medical conditions began in August 2006 upon his

arrival at FMC Butner. Id. ¶ 20. The treatment included:

(a) Treatment and referrals to a specialist for multiple

herniated discs and neuromuscular symptoms including numbness

other than that for which he had surgery;

(b) Treatment for the nerve mass and numbness arising from

ankle surgery complications;

(c) Deferred treatment for the ruptured biceps tendon pending

the completion of the neck problems;

(d) Physical therapy; and

(e) Chronic pain treatment with Lidocaine patches.

Id. ¶ 30. Treatment ceased, however, upon plaintiff’s transfer from FMC Butner to MVCC upon

the conclusion of a disciplinary matter, see id. ¶ 29, which has been described as follows:

In 2008, while incarcerated at the [FMC] Butner . . . , [plaintiff]

was charged with possessing a cell phone in violation of [BOP]

Prohibited Acts Code 108. Code 108 prohibits inmates from

possessing, manufacturing, or introducing a “hazardous tool,”

which is defined as “[t]ools most likely to be used in an escape or

escape attempt or to serve as weapons capable of doing serious

bodily harm to others; or those hazardous to institutional security

5

In the interim, it appears that plaintiff was transferred from FCI Bastrop to FCI

Beaumont, “where specialists diagnosed [him] with a compressed nerve in his spine and

recommended an epidural injection. Prior to the epidural, [plaintiff] was transferred to FCI Big

Spring.” Patel, 398 F. App’x at 25. While incarcerated at FCI Big Spring, plaintiff “cooperated

with the Department of Justice’s Office of Inspector General (‘OIG’) as the OIG conducted

investigations into BOP violations of the USA PATRIOT Act” Id. OIG deemed plaintiff’s next

transfer to FCI Forrest City to have been effected “in retaliation for [plaintiff’s] participation in

the OIG’s investigation.” Id.

5

or personal safety; e.g., hack-saw blade.” 28 C.F.R. § 541.13 tbl.

3. After holding an administrative hearing, the Disciplinary

Hearing Officer . . . issued a decision finding [plaintiff] guilty of a

Code 108 violation and imposing sanctions that included the loss

of 40 days of good conduct time.

Patel v. Zenk, 447 F. App’x 337, 339 (3d Cir. 2011). Plaintiff lost telephone privileges as well,

but he “did not receive a sanction of a disciplinary transfer.” Compl. ¶ 29.

MVCC was not equipped “to provide [plaintiff] with the medical treatment he was

receiving at FMC Butner.” Id. ¶ 31. Lidocaine patches were not permitted, and plaintiff “could

not receive the prescribed course of treatment for his severe chronic pain.” Id. ¶ 32. The facility

lacked a physical therapy department “and physical therapy stopped.” Id. ¶ 33. Notwithstanding

plaintiff’s need for medical specialists, he was informed that all referrals must be approved by a

committee, and “since MVCC was a private prison which watched all its costs, any referrals . . .

would probably not be approved.” Id. ¶ 34. “Plaintiff was not provided any further treatment for

the herniated discs, the ruptured biceps tendon, [or] the nerve mass in the ankle” while

incarcerated at MVCC. Id.

According to plaintiff, BOP regulations allow for the transfer of a prisoner from his

parent facility to another facility where medical treatment can be provided, for a subsequent

transfer to a facility for additional treatment, and for the return of that inmate to his parent

facility when treatment is complete. See id. ¶¶ 36-38. Plaintiff states that he has been classified

as a CARE level 3 prisoner since 2003. Id. ¶ 41. Plaintiff alleges that he wrote letters to Lappin

and Phillips when he learned of his impending transfer from FMC Butner. Id. ¶ 35. He asserts

that each of these defendants “knew or reasonably should have known that [p]laintiff was

undergoing specialized medical procedures at FMC Butner which could not be provided”

6

elsewhere, id. ¶ 39, yet effected his transfer to MVCC even though it is not a CARE level 3

facility, id. ¶ 43; see id. ¶ 38.

“Upon information and belief, . . . officials at MVCC . . . asked that [plaintiff] be re-

transferred to a prison facility where . . . treatment and care could be provided,” and Ms. Phillips

or Ms. Pomeroy or both denied the request. Id. ¶ 36. BOP allegedly did not follow its own

regulations in order “to interfere with and discontinue the course of treatment [plaintiff] was

receiving,” and allowed the transfer at the request of the “BOP officials in Texas who were

involved in” the lawsuit he filed in the Northern District of Texas in 2005. Id. ¶ 40. According

to plaintiff, “personal animus” on the part of Lappin, Phillips and Pomeroy against plaintiff

stemming from that lawsuit, id. ¶ 44, prompted his transfer from FMC Butner to MVCC. These

defendants allegedly saw the disciplinary violation “as an opportunity to punish [plaintiff] and

retaliate against him” for having filed the lawsuit, “intending that such transfer would interfere

with, delay, and discontinue [his] medical treatment.” Id. ¶ 45.

4. Plaintiff’s Administrative Tort Claims

In November 2008, plaintiff submitted three administrative claims to the BOP under the

FTCA. The first alleged that “medical records and other documents were falsified and/or

altered,” and that, “to effectuate the transfer, the [BOP’s] own internal program statements were

not followed.” Id., Ex. 2, Attach. 1 (Claim for Damage, Injury or Death from plaintiff to BOP’s

Regional Director dated November 4, 2008). The second alleged “negligence and medical

malpractice” with respect to treatment that was recommended but not provided following surgery

on October 22, 2007, on plaintiff’s herniated disc. Id., Ex. 2, Attach. 2 (Claim for Damage,

Injury or Death from plaintiff to BOP’s Regional Director dated November 16, 2008) at 1. The

third pertained to defendants’ alleged “negligent transfer decision” and the impact of plaintiff’s

7

transfer to MVCC and the resulting interruption in medical treatment. Id., Ex. 2, Attach. 3

(Claim for Damage, Injury or Death from plaintiff to BOP’s Regional Director dated November

16, 2008) at 2. BOP denied all three claims initially, id., Ex. 2, Attach. 4 (Letter to plaintiff from

Michelle Fuseyamore, Regional Counsel, Mid-Atlantic Region, BOP, dated May 21, 2009), and

on reconsideration, see Mem. Brief in Supp. of Pl.’s Reply to Defs.’ Mot. to Dismiss and Opp’n

to Request for Prelim. Inj. (“Pl.’s Opp’n”) [ECF No. 79] Ex. 1 (Letter to plaintiff from M.T.

Fuseyamore dated December 22, 2009).

B. Plaintiff’s Representations in his Motion for Preliminary Injunction

Plaintiff’s motion for injunctive relief is “limited to the most serious of the medical

conditions” which he alleges are “causing him permanent harms.” Mem. Brief in Supp. of Pl.’s

Mot. for a Prelim. Inj. to Compel Mandatory Necessary Medical Care [ECF No. 17] (“Pl.’s PI

Mot.”) at 2. He refers to his “severe neck injury which is paralyzing his entire left shoulder and

arm,” and he requests “an injunction to treat this neck condition.” Id. In the opinion of

plaintiff’s brother, Atul Patel, M.D., plaintiff is experiencing “atrophy . . . in his left shoulder

area,” a condition which “needs to be evaluated by a neurologist or neurosurgeon” in order that

“appropriate treatment . . . be provided.” Id., Ex. 2 (Patel Aff. dated September 18, 2010) ¶ 3.

Dr. Patel’s opinion, plaintiff submits, is “supported by the opinions of the prison doctors

themselves.” Id. at 4; see id., Ex. 1 (Radiologic Report dated April 18, 2008; Results of MRI of

the shoulder dated March 30, 2009; Progress Notes dated December 9, 2009). Plaintiff was to

have seen a neurosurgeon in August 2010, id. at 4, but as of the filing of his motion on

September 24, 2010, he had not yet been evaluated, id. at 5. According to plaintiff, his condition

has “gotten progressively worse,” id., Ex. 1 (Patel Aff.) ¶ 7, and has caused him to experience

constant pain, reduced mobility, and loss of function of his left shoulder and arm. See id., Ex. 1

8

(Patel Aff.) ¶ 6; see also Pl.’s Supp. Ex. to Supp. his Request for Inj. Relief and Evidence of

Emergency Situation [ECF No. 57]. He requests injunctive relief “to compel Medically

Mandatory Treatment.” Pl.’s PI Mot. at 1.

Defendants submit the declaration of Richard Matuszczak, the Health Services

Administrator of the Big Spring Correctional Center in Big Spring, Texas where plaintiff

currently is incarcerated. Mr. Matuszcak makes the following representations:

On January 27, 2011, the plaintiff was evaluated by Dr.

Abdul Kadir, M.D. Dr. Kadir recommended that the plaintiff

receive an evaluation from a neurosurgeon . . . .

The plaintiff’s referral to see a neurosurgeon was approved,

and on April 27, 2011, the plaintiff was evaluated by Dr. Hawkins,

a neurosurgeon at the Shannon Clinic [in] San Angelo, Texas. Dr.

Hawkins recommended the plaintiff receive a myelography, and

pending the results of the myelography, possibly surgery. Dr.

Hawkins did not recommend surgery without first receiving the

results of the myelography.

On May 3, 2011, the plaintiff received a second evaluation

from Dr. Thomas Meeks, a neurosurgeon, whose business office is

located [in] Odessa, Texas . . . . Dr. Meeks confirmed Dr.

Hawkins[’] recommendation . . . .

[T]he referral for . . . the . . . myelography was . . .

approved . . . , and [p]laintiff’s myelography appointment [was]

scheduled for June 1, 2011 in San Angelo, Texas.

Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss and Opp’n to Pl.’s Mot. for Prelim. Inj.,

ECF No. 17 (“Defs.’ Mem.”), Matuszczak Decl. ¶¶ 6-9. The “myelogram performed in June of

2011 show[ed] evidence of severe compression of the transiting C5 nerve root . . . on the left

consistent with [plaintiff’s] symptoms.” Pl.’s Opp’n, Ex. 2 (Neurosurgery Consultation

Followup dated September 16, 2011) at 2. Dr. Hawkins recommended “surgery to include

anterior cervical discectomy and fusion.” Id.

9

II. DISCUSSION

Defendants move to dismiss plaintiff’s complaint under Rule 12 of the Federal Rules of

Civil Procedure for lack of personal jurisdiction, improper venue, insufficient service of process,

and for failure to state a claim upon which relief can be granted. 6 See Defs.’ Mem. at 1.

A. Res Judicata

Generally, a plaintiff is expected to “present in one suit all the claims for relief that he

may have arising out of the same transaction or occurrence.” U.S. Indus., Inc. v. Blake Constr.

Co., Inc., 765 F.2d 195, 205 (D.C. Cir. 1985) (citation omitted). Res judicata (claim preclusion)

bars a subsequent lawsuit “if there has been prior litigation (1) involving the same claims or

cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid

judgment on the merits, (4) by a court of competent jurisdiction.” Porter v. Shah, 606 F.3d 809,

813-14 (D.C. Cir. 2010) (citations and internal quotation marks omitted). Essentially, the

doctrine “prevents a party from filing a new civil action which is based on the same operative

facts as underlay a previously-litigated civil action.” Morton v. Locke, 387 F. App’x 1, 1 (D.C.

Cir. 2010) (per curiam) (citations omitted); see Parklane Hosiery Co. v. Shore, 439 U.S. 322,

326 n.5 (1979). Additionally, that party is prevented from relitigating in a separate proceeding

“any ground for relief which [he] already [has] had an opportunity to litigate[,] even if [he] chose

not to exploit that opportunity,” and regardless of the soundness of the earlier judgment.

Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); I.A.M. Nat’l Pension Fund v.

6

Defendants also move to dismiss for lack of subject matter jurisdiction, arguing that the

doctrine of sovereign immunity bars plaintiff’s claims for monetary damages against the BOP

and the individual defendants in their official capacities. See Defs.’ Mem. at 12-14. Plaintiff

demands only injunctive and declaratory relief -- but not monetary damages -- as against BOP

and the individual defendants in their official capacities. Compl. ¶¶ 2-5; Pl.’s Opp’n at 7. The

request to dismiss for lack of subject matter jurisdiction will be denied.

10

Indus. Gear Mfg.Co., 723 F.2d 944, 949 (D.C. Cir. 1983) (noting that res judicata “forecloses all

that which might have been litigated previously”) (citation omitted).

“Whether two cases implicate the same cause of action turns on whether they share the

same ‘nucleus of facts.’” Drake v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002)

(citing Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)). In determining whether two

cases share a nucleus of facts, courts consider “whether the facts are related in time, space,

origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a

unit conforms to the parties’ expectations or business understanding or usage.” Apotex, Inc. v.

Food & Drug Admin., 393 F.3d 210, 217 (D.C. Cir. 2004) (citations and internal quotation marks

omitted).

Defendants move to dismiss plaintiff’s FTCA and Bivens claims on the ground that they

are barred under the doctrine of res judicata. See generally Defs.’ Mem. at 8-12. Defendants

assert that plaintiff “is realleging claims that were previously raised, involving the same parties

as those named here or their privies that were adjudicated by courts of competent jurisdiction,”

id. at 10, specifically district court decisions affirmed by the Fifth and Tenth Circuits, id. at 11. 7

The cases on which defendants rely, however, erect no bar to the claims raised in this action. As

plaintiff notes, these cases “involved different parties and different factual circumstances which

occurred years before the events from which this suit arises,” Pl.’s Statement of Undisputed

Facts ¶ 5, as well as “regulations [that] were not in effect until 2006,” Pl.’s Opp’n at 2, 5.

7

Plaintiff strongly objects, see Pl.’s Mot. to Strike Scandalous and Impertinent Materials

from Defs.’ Mot. to Dismiss at 1, to defendant’s characterization of him as a “recreational

litigant.” Defs.’ Mem. at 4. Indeed, plaintiff has filed dozens of civil actions and appeals, see

generally Defs.’ Supp. to their Mot. to Recons. the Court’s May 11, 2010 Order Granting Pl.’s

Mot. for Leave to Proceed In Forma Pauperis, and Reply to Pl.’s Opp’n to Same [ECF No. 39],

but his litigation activity has no bearing on the outcome of this case. Thus, Plaintiff’s Motion to

Strike Scandalous and Impertinent Materials from Defendants’ Motion to Dismiss [ECF No. 81]

will be denied.

11

For example, defendants rely on the lawsuit to which plaintiff refers in his complaint, see

Compl. ¶ 13, in the Northern District of Texas, see Patel v. United States, No. 05-cv-083 (N.D.

Tex. filed Feb. 7, 2005). 8 Plaintiff sued the United States under the FTCA, alleging that the BOP

negligently transferred him from prison to prison, where none of the facilities was equipped to

handle plaintiff’s medical needs. Because of his repeated transfers, plaintiff alleged that he “did

not have the proper medical care and physical therapy for a documented cervical radiculopathy

condition and that . . . he failed to receive the proper medical care for his condition, which

caused him to suffer deterioration, nerve damage, physical pain, and mental anguish.” Patel v.

United States, No. 4:08-CV-0680-Y, 2009 WL 636532, at *2 (N.D. Tex. Mar. 12, 2009), aff’d,

398 F. App’x 22 (5th Cir. 2010) (per curiam). Plaintiff filed his administrative claim on June 23,

2004, and thus could recover damages “only for transfers which occurred between June 2002 and

June 2004,” in the two years preceding his claim. Patel, 2009 WL 636532, at *2 n.11. 9

Defendants also rely on a lawsuit filed under the FTCA pertaining to the treatment of

plaintiff’s ruptured biceps tendon. See Patel v. United States, No. 08-1168, 2009 WL 1377530

(W.D. Okla. May 14, 2009), aff’d, 399 F. App’x 355 (10th Cir. 2010), cert. denied, 131 S. Ct.

1795 (2011). Plaintiff did not raise a negligent transfer claim in that action, however, and the

8

That case began in the United States District Court for the Northern District of Texas, and

subsequently was transferred in 2006 to the Eastern District of Arkansas, then to the Eastern

District of North Carolina in 2007, and finally was transferred back to the Northern District of

Texas in 2008. See Patel, 398 F. App’x at 26-27.

9

Insofar as plaintiff was challenging his transfer, the court found that he could “bring an

action claiming that the BOP was negligent in reviewing the many factors and considerations

inherent in making such placement,” and that “[t]he discretionary-function exception [to the

FTCA] is designed to prevent such second guessing of the BOP’s discretionary transfer

decisions.” Patel, 2009 WL 636532, at *4. Accordingly, the court dismissed the action with

prejudice for lack of subject matter jurisdiction, id., and the Fifth Circuit affirmed. Patel, 398 F.

App’x at 25.

12

FTCA claim failed because plaintiff was unable to introduce expert testimony to support his

negligence claims as was required under state law. See Patel, 399 F. App’x at 359.

Defendants mentioned a third lawsuit, see Defs.’ Mem. at 4, a medical malpractice claim

filed in the United States District Court for the Eastern District of Texas. See Patel v. Baluyot,

No. 02-0603 (E.D. Tex. filed Sept. 9, 2002). “On May 15, 2001, [plaintiff] injured his right

biceps muscle playing basketball,” and on the recommendation of an orthopedic surgeon, he

underwent an MRI at Doctor’s Hospital on January 17, 2002. Patel v. Baluyot, 384 Fed. App’x

405, 406 (5th Cir. 2010) (per curiam). Dr. Resty Baluyot read the MRI on that same date. Id.

The complaint alleged “Dr. Baluyot was negligent in interpreting the MRI and failing to

correctly diagnose the injury to his biceps tendon, and that Doctor’s Hospital was vicariously

liable for Dr. Baluyot’s diagnosis under the theory of respondeat superior.” Id. 10

Plaintiff’s prior lawsuits certainly raise claims regarding his many transfers and the

alleged denial of medical treatment. None of the prior cases pertains to the 2008 transfer from

FMC Butner to MVCC, or BOP’s alleged failure to follow regulations promulgated in 2006 with

respect to the 2008 transfer, or the other matters addressed in the denials of the three

administrative tort claims challenged here. Accordingly, defendants’ motion to dismiss on res

judicata grounds will be denied.

B. Service of Process on the Individual Defendants

Defendants move to dismiss on the grounds that the individual defendants were not

properly served and that this court lacks personal jurisdiction over them. See generally Defs.’

Mem. at 14-16. They argue that “the record in this action does not establish proper personal

10

The district court granted defendants’ motions for summary judgment on the ground that,

under Texas law, plaintiff “could not create a material issue of fact as to whether his treatment

fell below the necessary standard of care” without expert testimony, Patel, 384 F. App’x at 407,

and the Fifth Circuit affirmed, id. at 409.

13

service upon any of the individually-named Federal Defendants,” and, therefore, “any claim

against them personally is subject to dismissal.” Id. at 15-16.

The docket reflects that Lappin was served in his official capacity only [ECF No. 8], and

that Pomeroy was served personally at BOP headquarters [ECF No. 50]. Notwithstanding the

March 30, 2012 Order directing the Clerk of Court to issue a summons and cause service to be

effected on Phillips, it does not appear that any action has been taken.

Plaintiff is proceeding pro se and in forma pauperis, and thus relies on the Clerk of the

Court and the United States Marshals Service to effect service of process on his behalf. See 28

U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). Defendants’ motion to dismiss for lack of personal

jurisdiction and for improper service of process will be denied without prejudice. Plaintiff’s

Motion for an Order for the Marshals Service to Effect Proper Service Upon the Defendants in

Compliance with the Federal Rules [ECF No. 82] will be granted.

C. Venue

Defendants move to dismiss on the ground that venue in this district is improper. See

generally Defs.’ Mem. at 16-19.

1. FTCA Claim Against the United States

A claim under the FTCA “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).

Plaintiff is incarcerated in Texas, and Texas is considered his place of residence. See In re Pope,

580 F.2d 620 (D.C. Cir. 1978). Because plaintiff “cannot be found in this judicial district,”Defs.’

Mem. at 17, and because “there is no indication from [p]laintiff’s complaint that any of the

complained-of actions or omissions occurred in this district,” id., defendants contend that venue

for the FTCA claim is not proper in this district. Plaintiff’s tort claim against the United States

14

arises from “the [alleged] negligence of its officials in placing [him] in a prison which was not

capable of providing him medically mandated treatment.” Compl. ¶ 77 (Count One). According

to plaintiff, “[t]he acts or omissions complained of . . . are alleged to have been undertaken by

the defendants working at the BOP’s Washington, D.C. office.” Pl.’s Opp’n at 9. He points to

the request by MVCC staff to transfer him back to FMC Butner, see id., Ex. 19, and Ms.

Pomeroy’s rejection of that request by email presumably from her office at BOP headquarters,

see id., Ex. 20. Further, plaintiff contends that “BOP regulations . . . mandated that the decision

here involving a medically designated inmate originate from the OMDT” in Washington. Id. at

9. For these reasons, plaintiff argues that venue in this district is proper.

“Under the prevailing interpretation of section 1402(b), venue is proper in the District of

Columbia if sufficient activities giving rise to plaintiff's cause of action took place here.” Franz

v. United States, 591 F. Supp. 374, 378 (D.D.C. 1984). The location of BOP’s headquarters

office alone “cannot constitute a basis for concluding that venue is appropriate in this [d]istrict,”

Bartel v. Fed. Aviation Admin., 617 F. Supp. 190, 199 (D.D.C. 1985), and the “mere involvement

on the part of federal agencies, or some federal officials who are located in Washington D.C. is

not determinative” of the question of venue. Shawnee Tribe v. United States, 298 F. Supp. 2d

21, 25-26 (D.D.C. 2002). Even if officials at BOP’s headquarters office may have participated in

or actually made the decision to transfer plaintiff from FMC Butner to MVCC, the effects of that

decision did not occur in this district. See Zakiya v. United States, 267 F. Supp. 2d 47, 58

(D.D.C. 2003) (finding that, where prisoner plaintiff mounted “a specific attack on the

implementation of [a BOP] policy to his particular situation, and as the actual implementation by

the BOP officials occurred at the facilities where he was incarcerated and not in this district,

venue is not appropriate” in the District of Columbia). When conduct “occurs in one district but

15

has intended effects elsewhere, the act ‘occurs' in the jurisdiction where its effects are

directed.” Reuber v. United States, 750 F.2d 1039, 1047 (D.C. Cir. 1985), rev’d on other

grounds, Kauffman v. Anglo-Am. Sch. of Sofia, 28 F.3d 1223 (D.C. Cir. 1994); see Spotts v.

United States, 562 F. Supp. 2d 46, 53 (D.D.C. 2008) (rejecting argument for venue in this district

that “while the alleged tortious conduct had its operative effect on inmates in USP Beaumont, the

negligent acts or omissions that caused the inmates’ injuries -- i.e., the decisions to keep them at

USP Beaumont during Hurricane Rita and regarding their care after the hurricane -- occurred at

the Central Office [in Washington, D.C.]”); Davis v. Mukasey, 669 F. Supp. 2d 45, 49 (D.D.C.

2009) (transferring FTCA claim to district where events giving rise to claim occurred,

notwithstanding prisoner plaintiff’s subsequent transfers to facilities in Pennsylvania and

Kentucky). Following this reasoning, venue in this district is not proper. Plaintiff does not

reside here, and at no time was plaintiff incarcerated in the District of Columbia. Furthermore,

the effects of defendants’ alleged tortious act or omission fell upon plaintiff while he was

incarcerated elsewhere.

Ordinarily, upon a showing that venue in this district is improper, the Court “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). Dismissal is not appropriate in the

circumstances of this case, particularly because plaintiff is proceeding pro se. See James v.

Verizon Servs. Corp., 639 F. Supp. 2d 9, 15 (D.D.C. 2009) (noting that “[c]ourts generally favor

transfer over dismissal,” and that “[t]his is especially true when the plaintiff files a complaint pro

se”). “The District of Columbia Circuit favors transfer under § 1406(a) when procedural

obstacles --such as lack of personal jurisdiction, improper venue and statute of limitations bars --

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impede an expeditious and orderly adjudication . . . on the merits.” Coltrane v. Lappin, 885 F.

Supp. 2d 228, 235 (D.D.C. 2012) (internal quotation marks and citations omitted).

Under 28 U.S.C. § 1404(a), the Court may transfer a civil action to any other district

where it might have been brought “[f]or the convenience of the parties and witnesses, in the

interest of justice.” Id.; see Sec. & Exch. Comm’n v. Page Airways, Inc., 464 F. Supp. 461, 463

(D.D.C. 1978). Defendants suggest that this case “would be most appropriately litigated in

Texas, where [p]laintiff is incarcerated[,] or in North Carolina or Pennsylvania where the subject

action(s) took place.” Defs.’ Mem. at 18 n.7; see Defs.’ Reply at 8- 9. As a practical matter,

however, it appears that transfer to the Northern District of Texas is the better option.

Plaintiff surely could have brought his FTCA claim in the Northern District of Texas,

based upon his current place of incarceration in Big Spring, Texas. Based on plaintiff’s

description of the nature and severity of his medical conditions, he presumably has ongoing

medical needs and now requires and will continue to require treatment for his various conditions.

See, e.g., Pl.’s Statement of Undisputed Facts ¶ 37 (alleging that his “medical treatment

continues to be ignored or delayed at the present prison”). Notwithstanding plaintiff’s

designation to a private facility housing inmates under contract with the BOP, see Pl.’s Opp’n at

9-10, he remains in BOP custody and his medical records and other records pertaining to his

transfer presumably have followed him to Texas. Accordingly, the Court will deny defendants’

motion to dismiss the FTCA claim for improper venue. Instead, the Court will transfer the

FTCA claim sua sponte to the United States District Court for the Northern District of Texas.

See Starnes v. McGuire, 512 F.2d 918, 930-31 (D.C. Cir. 1974); Echevarria-de Pena v. United

States, No. 11-1388, 2012 WL 2192429, at *2 (D.P.R. June 14, 2012) (transferring both FTCA

and Bivens claims to the district where events took place, notwithstanding plaintiff’s residence in

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Puerto Rico, both under § 1404(a) and in the interest of judicial economy); Hines v. GEO Group,

Inc., 544 F. Supp. 2d 39, 41 (D.D.C. 2008) (transferring action to district where plaintiff was

incarcerated under § 1404(a)); Metcalf v. Fed. Bureau of Prisons, 530 F. Supp. 2d 131, 135

(D.D.C. 2008) (transferring civil action to district of prisoner plaintiff's incarceration under §

1404(a) because of the “likelihood that witnesses and relevant evidence are maintained [there]

and [ ] the difficulty of transferring plaintiff for purposes of pursuing this litigation”); see also

Miller v. Toyota Motor Corp., 620 F. Supp. 2d 109, 117 (D.D.C. 2009) (“[C]ourts may transfer

cases sua sponte under § 1404(a).”). All the remaining counts will remain pending in this Court.

2. Bivens Claims Against the Individual Defendants

In a Bivens action, where federal government officials are sued in their individual

capacities, venue is proper in the district where (1) any defendant resides if all defendants reside

in the same state; (2) a substantial part of the events or omissions giving rise to the claim

occurred; or (3) any defendant may be found if there is no district in which the action may

otherwise be brought. 28 U.S.C. § 1391(b). Plaintiff states that “venue in this case is premised

on 28 U.S.C. § 1391(b)(2)” because “the individual defendants all committed the constitutional

violations while in the District of Columbia.” Pl.’s Opp’n at 10-11.

Neither Lappin nor Phillips resides in the District of Columbia, see Defs.’ Mem., Ex. A-B

(declarations of Yvonne Phillips and Harley Lappin, respectively), and Pomeroy’s residence is

unknown. Defendants argue that, where “there is no evidence that [d]efendants reside in this

[d]istrict and none of the events [giving rise to plaintiff’s complaint] took place here,” venue in

this district is not proper under 28 U.S.C. § 1391(b). Id. at 18. Plaintiff counters that venue in

this district is proper for the Bivens claims based on his allegations “that the individual

defendants all committed the constitutional violations while in the District of Columbia.” Pl.’s

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Opp’n at 11. However, he concedes that “venue may be proper either [in] North Carolina or

Pennsylvania where plaintiff was when [these] unconstitutional acts were undertaken and

directed at him,” but he maintains that “the most logical and best venue remains this district.” Id.

“Courts in this circuit 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.” Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). In this case, it does

not appear that plaintiff has merely named high government officials as defendants for the sole

purpose of establishing venue in the District of Columbia. He claims that these defendants

actively participated in the decision to effect his transfer from FMC Butner to MVCC in 2008,

and he alleges their personal responsibility for his resulting injuries. Notwithstanding plaintiff’s

acknowledgement that this case could have been brought elsewhere, this is not a case where the

plaintiff attempts to “manufacture venue” in order to “bring a suit here that properly should be

pursued elsewhere.” Id. at 256.

All defendants have responded to the complaint, and the individuals responded in both

their official and individual capacities. See Defs.’ Mot. to Dismiss at 1. Venue is proper in the

district where “any defendant may be found if there is no district in which the action may

otherwise be brought.” 28 U.S.C. § 1391(b)(3). Pomeroy was found in this district and was

personally served here, and venue therefore is proper under § 1391(b)(3). The Court will deny

defendants’ motion to dismiss plaintiff’s Bivens claims for improper venue.

D. Timeliness of Plaintiff’s FTCA Claims

Defendants move to dismiss plaintiff’s FTCA claims as “time-barred because he did not

file this action within six months of the administrative denial of his claim[s].” Defs.’ Mem. at

19. The administrative claims were denied initially on May 21, 2009, and his complaint was

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docketed on May 11, 2010, more than six months later. See id. However, plaintiff sought

reconsideration of the denial of his three administrative tort claims, and the request was denied

on December 22, 2009. Pl.’s Opp’n at 11. BOP informed him that, if he was not satisfied with

this determination, he could “file suit in the appropriate U.S. District Court not later than six

months after the date of mailing of this notification.” Pl.’s Opp’n, Ex. 1. By the Court’s

calculation, the six month limitation period expired on or about June 22, 2010. The Clerk of

Court received plaintiff’s complaint on April 26, 2010, and, therefore, his FTCA claim is timely

filed. 11 Defendants’ motion to dismiss plaintiff’s FTCA claims as time-barred will be denied.

E. Personal Involvement of the Individual Defendants

The individual defendants move to dismiss the Bivens claims, see generally Defs.’ Mem.

at 21-24, arguing that these claims are “based solely on [plaintiff’s] erroneous belief that

[d]efendants who are former high-level BOP officials were involved in day-to-day transfers and

operations of the various remote facilities.” Id. at 21. They further disclaim any “personal[]

liability for constitutional torts [committed by] employees they supervis[ed].” Id. Plaintiff does

not rely on a theory of respondeat superior, however, and instead alleges the personal

involvement of Mr. Lappin, Ms. Phillips and Ms. Pomeroy in effecting his transfer from FMC

Butner to MVCC, and in denying his request for a transfer from MVCC back to FMC Butner.

Compl. ¶¶ 35-36; see also Pl.’s Opp’n, Ex. 20 (email to Maria Dawson from Wendy Pomeroy

dated October 7, 2008 denying request for transfer). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

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The Clerk of Court received plaintiff’s complaint and application to proceed in forma

pauperis on April 26, 2010. The Court approved the application on May 7, 2010, and the two

documents were filed officially on the Court’s electronic docket on May 11, 2010.

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Twombly, 550 U.S. 544, 570 (2007)), and the complaint adequately alleges the personal

involvement of these defendants.

F. Qualified Immunity

In light of the procedural posture of this case, defendant’s motion to dismiss on the basis

of qualified immunity, see Defs.’ Mem. at 26-31, will be denied without prejudice. So, too, will

Plaintiff’s Motion for a Continuance Under Fed. R. Civ. P. 56(f) to Enable Plaintiff to Conduct

Discovery Prior to Responding to the Defendants’ Arguments Concerning the Discretionary

Function Exception in its Motion to Dismiss [ECF No. 77]. Although defendants note that

another court has dismissed a previous FTCA claim under the discretionary function exception,

see Defs.’ Mem. at 21 n.8, they “have not posited such a defense in this case.” Reply to Pl.’s

Opp’n to Defs.’ Mot. to Dismiss and Opp’n to Pl.’s Mots., ECF Nos. 75, 77, 81, and 82 [ECF

No. 92] at 12. Furthermore, any discovery at this stage is premature.

G. Preliminary Injunction

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). A plaintiff

need not prevail on each of these four factors; rather, “the district court must balance the

strengths of the requesting party’s arguments in each of the four required areas.” CityFed Fin.

Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). He “has the burden to

show that all four factors, taken together, weigh in favor of the injunction.” Davis v. Pension

Benefit Guarantee Corp., 571 F. 3d 1288, 1292 (D.C. Cir. 2009) (citing Chaplaincy of Full

Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)); see Diwan v. EMP Global

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LLC, 841 F. Supp. 2d 246, 249 (D.D.C. 2012). A preliminary injunction is “an extraordinary

remedy that should be granted only when the party seeking the relief, by a clear showing, carries

the burden of persuasion.” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (quoting

Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004)) (internal quotation marks omitted);

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (noting that preliminary injunction “should not

be granted unless the movant, by a clear showing, carries the burden of persuasion” (citation,

internal quotation marks and emphasis omitted)).

Plaintiff’s motion for a preliminary injunction “is limited to [what plaintiff considers] the

most serious of the medical conditions which are presently causing him permanent harms,” that

is, the “severe neck injury which is paralyzing his entire left shoulder and arm.” Pl.’s PI Mot. at

2. He asks the Court to “issue a Preliminary Injunction requiring the [BOP] to transfer the

plaintiff to a Federal Medical Center or other prison where he can receive [an] appointment with

[a] neurosurgeon, have any tests or recommendations [the neurosurgeon] makes followed in a

timely manner, and be provided all recommended treatment.” Id. at 11. The demand for a

mandatory injunction set forth in plaintiff’s complaint is essentially the same: plaintiff “seeks an

injunction . . . requiring that the [BOP], Lappin, Phillips and [Pomeroy] or their authorized agent

in the OMDT undo the . . . illegal transfer . . . and commence a new transfer in compliance with

the BOP policies and regulations so that [plaintiff] can receive . . . medical care,” Compl. ¶ 85,

not only for the neck injury and its consequences but also for his other medical conditions. See

id.

Defendants argue that the “motion [for a preliminary injunction] is moot and should be

denied because he is receiving on-going treatment for his neck.” Defs.’ Mem. at 31. Since the

filing of the motion for a preliminary injunction, plaintiff has been examined by two

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neurosurgeons, both of whom recommended a myelography and, if the results so indicated, that

plaintiff undergo surgery. See id., Ex. H (Matuszczak Decl.) ¶¶ 7-8. The myelography took

place in June 2011, yet, plaintiff submits, as of September 2011, he had not received further

treatment. See Pl.’s Opp’n, Ex. 23 (Neurosurgery Consultation Followup dated September 16,

2011) at 2. Notwithstanding a neurosurgeon’s “repeated recommendations for urgent care …

without delay to avoid permanent damage and paralysis to the left arm[,]” and “surgery to

include anterior cervical discectomy and fusion[,]” id., plaintiff had not received the treatment.

In light of plaintiff’s ongoing need for treatment of the neck injury, defendants have not shown

that plaintiff’s request is moot.

Defendants argue in the alternative that a preliminary injunction is not warranted because

plaintiff “cannot satisfy the arguments for this extraordinary and drastic measure.” Defs.’ Mem.

at 32. According to defendants, plaintiff “is not likely to succeed on the merits in this action, . . .

and the public interest is not served by issuing the injunction . . . .” Id. They contend that

plaintiff is unlikely to succeed on the merits of his “fundamentally flawed” claims. Id.

“[A]mongst several defects, [the] FTCA claims are untimely and/or barred by res judicata[,]”

and the Bivens claims “are similarly infirm” given that the individual defendants “are protected

by qualified immunity.” Id.

While plaintiff makes a colorable showing of the likelihood of irreparable harm, Lappin,

Phillips and Pomeroy raise substantial arguments with respect to personal jurisdiction and

qualified immunity, although these matters are not resolved at this time. With the balancing of

the equities and the public interest tipping neither way, plaintiff’s motion will be denied because

he does not demonstrate that he is likely to succeed on the merits of his Bivens claims. The

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Court can consider at a later date the complaint’s requested relief of a mandatory injunction, see

Compl. ¶ 85, if plaintiff ultimately prevails on the merits of the Bivens claims.

III. CONCLUSION

Plaintiff’s FTCA claim (Count One) will be transferred to the United States District

Court for the Northern District of Texas, Plaintiff’s Motion for an Order for the Marshals Service

to Effect Proper Service Upon the Defendants in Compliance with the Federal Rules [ECF No.

82] will be granted, and all the other motions will be denied. An Order accompanies this

Memorandum Opinion.

Signed this 28th day of March, 2013.

/s/

RICHARD W. ROBERTS

United States District Judge

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