The opinion of the court was delivered by: Malachy E. Mannion United States Magistrate Judge
(CONNER, D.J.) (MANNION, M.J.)
Pending before the court are numerous motions filed by the plaintiff. Specifically, plaintiff has filed two motions to amend and/or supplement his complaint, (Doc. No. 76) & (Doc. No. 81), a "motion to have supplement to complaint held in abeyance," (Doc. No. 82), four motions for the defendants to return his legal materials, (Doc. No. 71), (Doc. No. 73) (Doc. No. 83) & (Doc. No. 85), and a motion for a court order regarding the preservation of evidence, (Doc. No. 78).
By way of relevant background, the plaintiff commenced this action on November 4, 2009 by filing a complaint against the Bureau of Prisons and Harley Lappin, Director of the Bureau of Prisons, in the United States District Court for the District of Columbia. (Doc. No. 1). On July 16, 2010, the plaintiff filed a motion for leave to file a supplemental complaint that was accompanied by a supplemental complaint. (Doc. No. 25). On January 4, 2011, Judge Leon, United States District Court for the District of Columbia, issued a minute order granting plaintiff's motion, and, therefore, the plaintiff's supplemental complaint was docketed as such on that day. See (Doc. No. 45). Furthermore, a review of the supplemental complaint indicates that plaintiff intended for the supplemental complaint to supplement his original complaint. See id. Accordingly, the present operative complaint in this action is comprised of (Doc. No. 1) and (Doc. No. 45), and the applicable factual background has been summarized by Judge Howell, United States District Court for the District of Columbia, as follows:
In the initial complaint, the Plaintiff alleges the following. Lappin "implemented a substantive rule change in the BOP" that resulted in "a new punitive housing status entitled the Special Management Unit (SMU)." Compl. ¶1. "On or about April 23 2009," Lappin "ordered and/or arranged and directed that the Plaintiff be placed into the SMU [at the Talladega facility], without due process," and "being fully aware that the Plaintiff had separations from other inmates in the SMU, [Lappin] ordered the Central Inmate Monitoring (CIM) to be ignored in regards to Plaintiff, and arranged for Plaintiff to be housed with a known enemy and separatee with the specific intent of causing the wrongful death of the Plaintiff and placing [him] in imminent danger . . . ." Id. ¶¶2-3. On the other hand, the Plaintiff alleges that Lappin and the BOP designed and maintained the SMU "in a manner which severely limits human contact . . . . Id. ¶5. According to the Plaintiff, lights in the SMU's cells remained on "continuously," daily exercise was not permitted, educational programs were unavailable, and placement in SMU was "indefinite." Id.
In the first supplemental complaint, the Plaintiff alleges the following. Since May 21, 2010, Lappin, "his agents, employees, and persons acting in his concern, [have] placed the Plaintiff in incommunicado [at the Lewisburg facility], and will not allow the Plaintiff to send or receive mail from close family members, friends, or the courts . . . or otherwise communicate, in violation of the First Amendment . . . ." Supp. Compl. ¶1. On May 26, 2010, Lappin "ordered the Plaintiff to be executed, resulting in an attempt on the Plaintiff's life and multiple injuries . . . ." Id. ¶3.On May 24, May 31, June 2, and July 6 , 2010, the Plaintiff informed Lappin that "several prison gangs and District of Columbia inmates" had threatened his life and that there was "a contract on his life[.]" Id. ¶4.When Warden Brian A. Bledsoe had previously set the Plaintiff up to be assaulted, the Plaintiff sought protective custody and separation orders. Id. Lappin refused the Plaintiff's request and "instead informed the Plaintiff that he would be forced to cell with inmates that he identifies as enemies and that 'special' arrangements were being made to place the Plaintiff in Bledsoe's custody to end the Plaintiff's life." Id. On July 8, 2010, Lappin "had the Plaintiff forced into a cell with [an] inmate . . . identified . . . as an enemy, resulting in the Plaintiff being assaulted several times and receiving injuries to his right eye, right foot and abdomen." Id.
¶5. On July 9, 2010, Lappin gave similar orders to house the Plaintiff with his enemies, which resulted in another assault from which the Plaintiff suffered a broken arm; such events are "continuing to date . . . ." Id. ¶¶7-8. (Doc. No. 60 at 2-3).
On September 20, 2010, the defendants filed a motion to dismiss to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(3) for improper venue, and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. No. 37). On July 21, 2011, Judge Howell found that venue in the District of Columbia was improper, and transferred this case to the Middle District of Pennsylvania. (Doc. No. 60). Specifically, Judge Howell stated:
" . . . most of the Plaintiff's allegations regarding Lappin's personal participation in the wrongdoing 'at best strain credulity and at worse are frivolous." Mem. Op. and Order (Sept. 27, 2010) (Leon, J.) [Doc] No. 40 at 2. Nevertheless, the Court, liberally construing the Plaintiff's pro se filings, finds transfer of the case more appropriate than dismissal for three reasons. First, to survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ ] [his] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) (citation omitted). The Court cannot ignore, and on a motion to dismiss must accept as true, the Plaintiff's allegations that on May 24, May 31, June 2, and July 6, 2010, he informed Lappin that "several prison gangs and District of Columbia inmates" had threatened his life and that there was "a contract on his life," Supp. Compl. ¶4, and that he sustained serious injury from assaults on July 8 and July 9, 2010, by inmates placed in his cell who had been identified as his enemies. Id. ¶¶5, 7-8. If Lappin was personally aware of the Plaintiff's predicament and did nothing, he arguably could be subject to Bivens liability for those incidents. See Fletcher v. U.S. Parole Comm'n, 550 F. Supp. 2d 30, 39 (D.D.C. 2008) (discussing circumstances where Bivens liability may attach to supervisors). Second, the Plaintiff presumably can amend the complaint in the transferee court to add the proper indispensable defendants, i.e., the individuals at USP Lewisburg directly responsible for placing him with known separatees or enemies and for any other unconstitutional conditions of his confinement. See Corr. Servs. Corp., 534 U.S. at 72 ("If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity . . . . [H]is only remedy lies against the individual[.]"). Third, the Plaintiff's Eighth Amendment claim for injunctive relief is not foreclosed. See id. at 74 (recognizing that a lawsuit for "injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.").
Because a Bivens action seeks to hold the defendant personally liable, the proper venue for litigating such actions lies 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); see Cameron, 983 F.2d at 256 (confirming that "[u]nder the Supreme Court's holding . . . , [§1391(e)'s venue provision] applies only to suits against government officers in their official capacities, not to Bivens actions") (citing Stafford v. Briggs, 444 U.S. 527 (1980)). The residence of the only named defendant, Lappin, is unknown and the individuals directly involved in the alleged wrongdoing are not in the District of Columbia. Hence, §1391(b)(2) -- the location of the events giving rise to the complaint -- is controlling. Although the alleged misconduct occurred at BOP facilities in Talladega, Alabama, and Lewisburg, Pennsylvania, the Plaintiff alleges that the constitutional violations are ongoing. Therefore, the Court finds it in the interests of justice to transfer this action to the judicial district where the Plaintiff is currently confined.
The plaintiff then filed a "motion for relief from judgment and/or for reconsideration or, in the alternative, motion for leave to file [an] interlocutory appeal," (Doc. No. 61), which was subsequently denied, (Doc. No. 62). After that motion was denied, the plaintiff appealed to the United States Court of Appeals for the District of Columbia Circuit, (Doc. No. 63) & (Doc. No. 64), and then withdrew his appeal, (Doc. No. 66).
On October 17, 2011, this action was electronically transferred to the Middle District of ...