United States District Court, M.D. Pennsylvania
JOHN W. PEROTTI, AND PATRICK J. ROSELLI, Plaintiffs
UNITED STATES OF AMERICA, ET AL., Defendants
RICHARD P. CONABOY, District Judge.
This combined pro se Bivens-type civil rights and Federal Tort Claims Act (FTCA) action was filed by John W. Perotti an inmate presently confined at the United States Penitentiary, Leavenworth, Kansas, (USP-Leavenworth) and Patrick J. Roselli, a former federal inmate presently residing in the State of Florida. Service of the Amended Complaint was previously ordered.
Named as Defendants are the United States of America (for purposes of the FTCA claim) and seven (7) employees (Warden Daniels, Assistant Warden Johnson, Doctor Gary Allred; Nurses Andreis and Serby, Health Services Administrator Collins, and Physician Assistant Brad Cink) of the United States Penitentiary, Florence, Colorado (USP-Florence).
Twelve (12) officials including Warden Cozza-Rhodes, ex-Warden Julie Wands, Unit Manager Tucker, Lieutenants Young, Bond, and Martin, Captain Klein, Hill, Quintana, Maditch, and Correctional Officers Sutton and Chapman of the Federal Correctional Institution, Florence, Colorado (FCI-Florence) are also listed as being Defendants.
Plaintiffs are additionally proceeding against Warden David Ebbert, Mail Room Supervisor Trently, and Doctor Walter Dobushek of the Canaan United States Penitentiary, Waymart Pennsylvania (USP-Canaan). Doctor Gary Ulrich, a contract physician at the United States Penitentiary of Terre Haute, Indiana (USP-Terre Haute) is also named as a Defendant
The Amended Complaint raises multiple claims of deliberate indifference to Perotti's medical problems during his prior confinement at USP-Canaan as well as the other listed federal correctional facilities. It is also alleged that the Plaintiffs were prevented from corresponding with one another in violation of their right of access to the courts. The claims do not arise out of the same occurrence and are the most part are unrelated to one another.
The Individual Defendants responded to the Amended Complaint by filing a motion to dismiss or in the alternative for summary judgment. See Doc. 66. Defendant United States of America has filed a separate motion to dismiss or in the alternative for summary judgment. See Doc. 67. Both motions have been opposed and are ripe for consideration.
Both of the pending motions raise improper venue arguments similarly asserting that almost all of the Plaintiffs' allegations are based upon occurrences which transpired outside of this district and as such are subject to dismissal. Alternatively, both motions ask that those allegations should be transferred to a more appropriate judicial district. See Doc. 78, p. 16.
Federal Rule of Civil Procedure 12(b)(3) allows a defendant to raise the defense of improper venue via submission of a motion. The Bivens portion of the Amended Complaint seeks monetary damages against the Defendants in their individual capacities. See Doc. 7, pp. 3-4. In Micklus v. Carlson, 632 F.2d 227, 240-41 (3d Cir. 1980), the Court of Appeals for the Third Circuit recognized that under Stafford v. Briggs, 444 U.S. 527 (1980), the provisions of 28 U.S.C. § 1391(e) are inapplicable to claims for monetary damages against federal officials when the individual officeholder may be found personally liable. See also Robinson v. Weiss, Civ. A. 99-3964, 2000 WL 231905 *2-3 (E.D. Pa. Feb. 18, 2000)(venue provisions of § 1391(e) do not apply to actions for money damages against federal officials in their personal capacities).
The pertinent statutory provision concerning the proper federal court in which a Bivens lawsuit may be brought, 28 U.S.C. § 1391(b), provides that "[a] civil action may be brought in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may be otherwise brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
This action is not based upon diversity of citizenship jurisdiction, and it is apparent that with the exception of Defendant Bond, none of the FCI-Florence, USP-Florence, and USP-Terre Haute officials named as Defendants in the Amended Complaint reside within the Commonwealth of Pennsylvania. There is nothing to indicate that the FCI-Florence, USP-Florence, and USP-Terre Haute Defendants purposefully directed their activities to Pennsylvania or can otherwise be found in Pennsylvania as contemplated under 28 U.S.C. § 1391(b)(3). ...