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Jeffery Lee Bosold v. Warden

December 28, 2011

JEFFERY LEE BOSOLD
v.
WARDEN, SCI-SOMERSET, ET AL.



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

Plaintiff Jeffery Lee Bosold brings this action pursuant to 42 U.S.C. § 1983 and state law, alleging violations of his civil rights arising from his incarceration at SCI Somerset. He asserts claims against the Warden of SCI Somerset, the Secretary of the Pennsylvania Department of Corrections, the Secretary of the Pennsylvania Board of Probation and Parole, and an unidentified number of John and Jane Does who are employed at SCI Somerset. The Warden of SCI Somerset, the Secretary of the Pennsylvania Department of Corrections, and the Secretary of the Pennsylvania Board of Probation and Parole (collectively the "Defendants"), have filed a Motion to Dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3) and 12(b)(6). For the following reasons, the Motion is granted in part and denied in part.

I. BACKGROUND

The Amended Complaint alleges the following facts. On December 29, 2005, Plaintiff Jeffrey Bosold was convicted of statutory sexual assault in the Berks County Court of Common Pleas and was sentenced to six to twenty-three months of imprisonment, followed by three years of probation. (Compl. ¶ 10.) He was released from the Berks County Prison on June 8, 2006. (Id. ¶ 11.) He violated his probation and was sent back to prison on October 24, 2006. (Id.¶ 12.) One year later, on October 24, 2007, he was resentenced on the probation violation to one to five years of imprisonment, followed by five years of probation. (Id. ¶ 13.) Plaintiff was again resentenced on the violation on February 25, 2008, this time he was sentenced to one to three years of imprisonment, followed by five years of probation. (Id. ¶ 15.) He was also given credit for 736 days of time served, leaving only 359 additional days of imprisonment on his three year maximum sentence, which should have resulted in a release date no later than February 19, 2009. (Id. ¶¶ 15-16.)

Plaintiff was not released on February 19, 2009. (Id. ¶ 17.) He subsequently filed at least four inmate communication forms to alert Defendants and Employee Doe(s) that he should have been released on February 19, 2009. (Id. ¶ 18.) Defendants failed to take any action in response to these communications and Plaintiff was not released until October 25, 2009. (Id. ¶¶ 19-20.) The Amended Complaint asserts one claim against Defendants and Employee Doe(s) in their individual capacities pursuant to 42 U.S.C. § 1983 for violation of Plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments (Count I) and one claim against Defendants and Employee Doe(s) in their individual capacities for false arrest and false imprisonment under state law (Count II).

Defendants have moved to dismiss the Amended Complaint in its entirety for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) or, in the alternative, to transfer this action to the Western or Middle District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). Defendants have also moved to dismiss Count I for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) and to dismiss Count II for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(1).*fn1

II. DISCUSSION

A. Motion to Dismiss or Transfer for Improper or Inconvenient Venue

1. Rule 12(b)(3)

Defendants argue that venue is improper in this judicial district because none of them reside here and, therefore, this action should either be dismissed pursuant to Rule 12(b)(3) or transferred to a district in which one or more of them reside. "In considering a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), the court must generally accept as true the allegations in the complaint, although the parties may submit affidavits in support of their positions." Fellner v. Phila. Toboggan Coasters, Inc., Civ. A. No. 05-2052, 2005 WL 2660351, at *1 (E.D. Pa. Oct. 18, 2005) (citations omitted). "The court may examine facts outside the complaint to determine proper venue, but must draw all reasonable inferences and resolve all factual conflicts in the plaintiff's favor." Id. (citations omitted).

"The defendant bears the burden of showing that the chosen venue is improper or, in the alternative, that transfer to another district is justified for other reasons." CoActiv Capital Partners, Inc. v. Feathers, Civ. A. No. 08-5506, 2009 WL 1911673, at *1 (E.D. Pa. July 1, 2009) (citations omitted); see also Chester v. Beard, Civ. A. No. 07-4742, 2008 WL 2310946, at *5 (E.D. Pa. June 2, 2008) (citing Fellner, 2005 WL 2660351, at *1). "When a defendant challenges the plaintiff's chosen venue, and [the court] determines that the chosen venue is improper, [the court] must either dismiss the case or transfer it 'to any district or division in which it could have been brought.'" CoActiv, 2009 WL 1911673, at *1 (quoting 28 U.S.C. § 1406(a)).

We have jurisdiction over the instant action pursuant to 28 U.S.C. § 1331, because one of Plaintiff's claims arises under the Constitution and laws of the United States. See 28 U.S.C. § 1331.

Consequently, the venue provisions of 28 U.S.C. § 1391(b) apply in this case:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only 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).

Defendants argue that venue is improper in the Eastern District of Pennsylvania because the Amended Complaint does not allege that any defendant resides in the Eastern District or that any part of the events or omissions giving rise to Plaintiff's claims took place in the Eastern District. Defendants maintain that the Amended Complaint alleges that all Defendants reside in the Middle or Western District of Pennsylvania. Defendants rely on the Plaintiff's inclusion of Defendant's work addresses in the caption of his Amended Complaint. However, the Amended ...


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