UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ DAVID YOUNG ) ) Plaintiff, ) ) v. ) ) FEDERAL BUREAU ) Civil Action 11-412 (GK) OF PRISONS, et al. ) ) Defendants. ) ) ______________________________)

MEMORANDUM OPINION

Pro se Plaintiff David Young brings this action against

Defendants the Federal Bureau of Prisons (“BOP”), the United States

Marshals Service (“U.S. Marshals”), and Assistant U.S. Attorney

George May, alleging violations of his Fifth and Sixth Amendment

rights under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics,

,

(1971).1

This matter is presently before the Court on Defendants’

Motion to Dismiss pursuant to Federal Rules of Civil Procedure

12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(5) (“Defs. Mot.”) [Dkt No.

1 Plaintiff originally brought his Complaint under

, which is the state-law analogue to Bivens. The Complaint and briefing on the Motion to Dismiss make clear, however, that Plaintiff’s claims sound in Bivens, and not in Section 1983. See e.g., Compl. - Facts ¶¶ 1-3. The Court will, therefore, construe Plaintiff’s complaint as raising Bivens claims. See Richardson v. United States,

(D.C. Cir. 1999)(holding that arguments contained in pro se plaintiff’s opposition to motion to dismiss may be construed as amending the original complaint.). 18].2 Upon consideration of the Motion, Opposition, Reply, and

Surreply and the entire record herein, Defendants’ Motion to

Dismiss is granted.

I. Background3

In 2006, Plaintiff, who is currently incarcerated in Alabama,

was indicted in the District Court for the Southern District of

Alabama for conspiracy with intent to distribute marijuana as well

as two other related charges. Compl. - Facts ¶ 1. In late August

2009, the U.S. Marshals arrested Plaintiff in Lawrenceburg,

Tennessee and transported him to the federal courthouse in

Nashville, Tennessee. Id.; Ex. D to Compl.

2 Defendants also move to dismiss under Federal Rules of Civil Procedure 12(b)(4), for insufficiency of process, and 12(b)(6), for failure to state a claim. With regard to the 12(b)(4) motion, such a motion “is proper only to challenge noncompliance with the provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of the summons.” Prunte v. Universal Music Group,

, 336 n.3 (D.D.C. 2008). Defendants do not, however, challenge the content of the summons but rather the “mode of delivery or lack of delivery of the summons and complaint,” which is properly brought under Rule 12(b)(5).

(citation and internal quotations omitted). The Court, therefore, has no cause to consider Defendants’ motion to dismiss under Rule 12(b)(4). With regard to the 12(b)(6) motion, there is no need to reach this issue as the Court shall dismiss the Complaint on other grounds. 3 For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,

(D.C. Cir. 2008); Shear v. Nat’l Rifle Ass’n of Am.,

(D.C. Cir. 1979). Therefore, the facts set forth herein are taken from Plaintiff’s Complaint.

-2- Upon Plaintiff’s arrival in Nashville, the U.S. Marshals

confiscated $156 from him and placed the funds in a register

allegedly reserved for convicted felons in Des Moines, Iowa (“Des

Moines Register”). Compl. - Facts ¶ 3. At this time, Plaintiff was

also allegedly assigned a federal prisoner number.

On September 2, 2009, a federal judge in Nashville ordered

Plaintiff transferred to Alabama for arraignment. Id. ¶ 1; Ex. D to

Compl. Plaintiff did not, however, immediately arrive in Alabama.

Instead, he was first transferred to and held for two weeks in a

privately operated prison facility under contract to BOP. Compl. -

Facts ¶ 4. At this facility, Plaintiff’s money was again

confiscated and placed in the Des Moines Register under his federal

prisoner number. Id. ¶ 4.

The U.S. Marshals then transferred Defendant to the BOP’s

airport facility in Oklahoma City, Oklahoma. Id. ¶ 5. There,

Plaintiff was again classified as a federal prisoner and placed in

“open population” with convicted inmates. Id. The U.S. Marshals

subsequently transferred Plaintiff to Atlanta, Georgia, where he

was held for two weeks in the same facility as convicted prisoners.

Id. ¶ 6. By the time he reached Alabama, Plaintiff had been in BOP

custody as a federal prisoner for a total of approximately 30 days.

Id. ¶ 7.

On October 7, 2009, Plaintiff was arraigned in federal court

in Mobile, Alabama. Ex. D to Compl. On January 5, 2010, Plaintiff

-3- pled guilty to conspiracy with intent to distribute marijuana. Id.

On March 22, 2011, Plaintiff filed a motion to withdraw his guilty

plea, which the presiding judge denied on April 7, 2011. Id. On May

15, 2011, the judge sentenced Plaintiff to 120 months in prison.

Id.

On February 23, 2011, Plaintiff filed the instant Complaint in

this Court. On May 23, 2011, Defendants filed a Motion to Dismiss.

On July 5, 2011, Plaintiff filed an Opposition to Defendants’

Motion to Dismiss (“Pl. Opp’n”) [Dkt. No. 30]. On July 25, 2011,

Defendants filed a Reply to Plaintiff’s Opposition to Defendants’

Motion to Dismiss [Dkt. No. 32]. On August 26, 2011, Plaintiff

filed a Surreply to Defendants’ Motion to Dismiss [Dkt. No. 37].

II. Standard of Review

Under Rule 12(b)(1), plaintiff bears the burden of proving by

a preponderance of the evidence that the court has subject matter

jurisdiction. See Shuler v. U.S.,

(D.C. Cir.

2008). In reviewing a motion to dismiss for lack of subject matter

jurisdiction, the court must accept as true all of the factual

allegations set forth in the Complaint; however, such allegations

“will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.” Wilbur

v. CIA,

(D.D.C. 2003)(citations and

quotations omitted). The court may rest its decision on its own

resolution of the disputed facts.

-4- Under Rule 12(b)(2), the plaintiff bears the burden of

establishing personal jurisdiction over each defendant. Crane v.

New York Zoological Soc.,

(D.C. Cir. 1990). In

order to satisfy this burden, a plaintiff must establish the

court's jurisdiction over each defendant through specific

allegations in her complaint. Kopff v. Battaglia,

(D.D.C. 2006). Additionally, the plaintiff cannot rely on

conclusory allegations; rather, she must allege the specific facts

on which personal jurisdiction is based. First Chicago Int’l v.

United Exchange Co.,

(D.C. Cir. 1988).

Under Rule 12(b)(3), “the court accepts the plaintiff’s well-

pled factual allegations regarding venue as true, draws all

reasonable inferences from those allegations in plaintiff’s favor,

and resolves any factual conflicts in the plaintiff’s favor.”

Pendleton v. Mukasey,

(D.D.C. 2008)

(citation and internal quotations omitted). “Because it is the

plaintiff’s obligation to institute the action in a permissible

forum, the plaintiff usually bears the burden of establishing that

venue is proper.” Freeman v. Fallin,

(D.D.C.

2003).

Under Rule 12(b)(5), “[i]f the plaintiff does not properly

effect service on a defendant, then the defendant may move to

dismiss the complaint . . . . Upon such a motion, the plaintiff

carries the burden of establishing that he has properly effected

-5- service.” Tom Sawyer Products., Inc., v. Progressive Partners

Achieving Solutions, Inc.,

(D.D.C. 2008).

“Before a court may exercise personal jurisdiction over a

defendant, the procedural requirement of proper service of summons

must be satisfied to assure notice to the defendant.”

III. Analysis

Plaintiff raises two categories of claims against Defendants.

The first category relates to Plaintiff’s “illegal

imprisonment” from the time of his arrest in Lawrenceburg,

Tennessee until his arrival in Mobile, Alabama. Plaintiff alleges

that the BOP and U.S. Marshals violated his Fifth Amendment Rights,

in contravention of Bivens, by failing to verify that Plaintiff was

not a convicted and sentenced prisoner, by mistakenly treating him

as a convicted prisoner, and by placing Plaintiff “into a hostile

environment under threat of physical and mental harm.” Compl. -

Allegations ¶¶ 1-2. Plaintiff alleges that Defendant May, the

prosecutor in his case, also violated his Fifth Amendment rights by

falsely representing to the U.S. Marshals that Plaintiff was a

convicted criminal and by subsequently concealing his actions. Id.

¶ 3.

The second category relates to Plaintiff’s current conviction.

Plaintiff alleges that Defendant May violated Plaintiff’s Sixth

Amendment rights by using the “powers of his office” to coerce

Plaintiff to plead guilty, and by failing to notify Plaintiff and

-6- the Court of his involvement in the related, but separate

prosecution of Tammy Forbes Young. Id. ¶ 3. Ms. Young had allegedly

made adverse statements against Plaintiff during the course of her

indictment and trial. Id.

Defendants raise the following challenges to these

allegations.

A. Claims Relating to Plaintiff’s Pre-Conviction Detention

1. Defendants argue that Plaintiff’s Bivens claims against BOP

and the U.S. Marshals must be dismissed, pursuant to Rule 12(b)(1),

because the Government is immune from suit.4 Defs. Mot. 10-11. It

is well-established that the U.S. Government enjoys immunity from

prosecution, unless it has expressly waived it. U.S. v. Mitchell,

,

(1980). As the Supreme Court has

held, the U.S. Government has not expressly waived its sovereign

immunity for suits brought under Bivens. FDIC v. Meyer,

,

(1994). The Court, therefore, lacks

subject matter jurisdiction to hear Plaintiff’s Bivens claims

against the BOP and the U.S. Marshals.

4 Defendants also argue that, to the extent Plaintiff raises common law tort claims, these claims fail as Plaintiff has not exhausted his administrative remedies, as required by the Federal Tort Claims Act (“FTCA”),

et seq. Defs. Mot. 8-10. Under the FTCA, a plaintiff must first exhaust her administrative remedies before bringing a common law tort action against the U.S. Government.

. In his Opposition, Plaintiff states that he has not brought his Complaint pursuant to the FTCA. Pl. Opp’n 5. Nevertheless, even if Plaintiff had raised an FTCA claim, this claim would fail as Plaintiff’s Complaint does not allege the necessary exhaustion of administrative remedies.

-7- 2. As Defendants correctly point out, Plaintiff has not

indicated whether he is suing Defendant May in his official or

individual capacity. Defs. Mot. 3. Defendants argue, however, that

under either scenario Plaintiff’s claims against Defendant May must

be dismissed.

.

To the extent that Defendant May is being sued in his official

capacity, Defendants argue that these claims must be dismissed,

pursuant to Rule 12(b)(1), because Defendant May is protected by

the United States’ sovereign immunity. Defs. Mot. 10-11. Our case

law establishes that “[o]fficial capacity suits . . . generally

represent only another way of pleading an action against an entity

of which an officer is an agent.” Kentucky v. Graham,

,

(1985) (citation and internal quotations

omitted). For this reason, suits brought against members of the

Government in their official capacities are barred by sovereign

immunity. Perkins v. Ashcroft,

(D.C. Cir. 2008).

Accordingly, this Court lacks subject matter jurisdiction to hear

Plaintiff’s Bivens claims against Defendant May in his official

capacity.

To the extent that Defendant May is being sued in his

individual capacity, Defendants argue that these claims should be

dismissed, pursuant to 12(b)(2) and 12(b)(5), because Defendant May

has not been properly served. Defs. Mot. 11-13. Government

officials sued in their individual capacities must be served

-8- pursuant to Federal Rule of Civil Procedure 4(e). Simpkins v.

District of Columbia Government,

(D.C. Cir.

1997). In relevant part, Rule 4(e) requires that the defendant be

personally served with the summons and complaint or that they be

left at defendant’s home with a resident of the appropriate age.

The Attorney General and the United States Attorney must also be

served. FED. R. CIV. P. 4(i)(3).

In this case, Plaintiff served Defendant May at his place of

business. See Return of Service Affidavit as to George May [Dkt.

No. 14]. Because service of process was improper, the Court lacks

personal jurisdiction over Defendant May in his individual

capacity.

3. Defendants argue that Plaintiff’s individual capacity

claims against Defendant May must also be dismissed, under Rule

12(b)(3), as venue in the District of Columbia is improper. Defs.

Mot. 14. In relevant part,

(b) provides that venue

is proper in the judicial district where defendant resides or where

a substantial part of the events giving rise to the claim occurred.

Defendant May does not reside in Washington D.C. and Plaintiff’s

allegations do not suggest that a substantial part of the events

giving rise to his claims occurred in D.C. Consequently, the

District of Columbia is an improper venue for Plaintiff’s claims

against Defendant May in his individual capacity.

B. Claims Relating to Plaintiff’s Conviction

-9- 4. Defendants argue that, to the extent Plaintiff challenges

his current conviction and incarceration, this claim must be

dismissed, under Rule 12(b)(1), because it should have been brought

under the federal habeas corpus statute,

. Defs.’

Mot. 6. It is firmly established that “[p]risoners challenging the

lawfulness of their custody are to proceed by means of habeas.”

Chatman-Bey v. Thornburgh,

(D.C. Cir. 1988).

Furthermore, jurisdiction to hear a habeas corpus claim lies only

in the judicial district where the prisoner is confined. Rumsfeld

v. Padilla,

,

(2004). Plaintiff’s

claim regarding his conviction and sentence clearly sound in habeas

corpus since he seeks to overturn his conviction and obtain his

freedom. Consequently, the Court lacks subject matter jurisdiction

over this claim, which must be brought in the judicial district in

Alabama where Plaintiff is currently incarcerated.

IV. Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss is

granted. An Order will accompany this Memorandum Opinion.

/s/ November 21, 2011 Gladys Kessler United States District Judge

-10-