UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) MARCOS GONZALEZ, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0346 (CKK) ) ERIC HOLDER, et al., ) ) Defendants. ) ___________________________________ )

MEMORANDUM OPINION

This matter is before the Court on defendants’ motion to dismiss. For the reasons

discussed below, the motion will be granted in part and denied in part without prejudice, and this

action will be transferred to the United States District Court for the Western District of Texas.

I. BACKGROUND

Plaintiff, a federal inmate in the custody of the Federal Bureau of Prisons (“BOP”),

alleges that, in November 2002, he suffered “an injury in the recreation yard at the Federal

Correctional Institution in Beaumont, Texas,” Compl. ¶ 30, which caused him “pain in his groin,

testicles and inside thigh . . . [continuing] unabated for over six years,” id. ¶ 31. In July 2008, he

“was diagnosed . . . as having a hernia [which] continued to grow over the years as the rupture of

the abdomen wall became larger.” Id. ¶ 32. Notwithstanding several efforts to obtain medical

treatment, see id. ¶¶ 33-40, he continued to endure pain, id., ¶¶ 41, 50. Plaintiff was told that the

hernia could be repaired by laproscopic surgery, see id. ¶ 49, yet “[d]efendants have refused to

provided needed medical attention,” which has “endangered [plaintiff’s] health and well being,”

1 id. ¶ 50.

In Counts I and II of his complaint, plaintiff alleges that Claude Maye, FCI Bastrop’s

Warden, is aware of plaintiff’s “injury[] and the need for immediate surgical intervention . . . and

. . . ha[s] failed to act, or by omission ha[s] been deliberately indifferent to [p]laintiff’s medical

needs, id. ¶ 61, causing plaintiff “unnecessary and wanton infliction of pain and suffering,” id. ¶

62; see id. ¶ 66. For this alleged violation of plaintiff’s rights under the Eighth Amendment to

the United States Constitution, plaintiff sues Warden Maye in his individual capacity under

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971), and in

his official capacity. See id. ¶¶ 4, 66. He demands compensatory and punitive damages as well

as costs and attorney fees. See id. ¶¶ 63, 67. Similarly, in Counts I and III of his complaint,

plaintiff alleges that Dr. McLaughlin, Clinical Director at FCI Bastrop, and Michael

Schappaugh, a commissioned officer of the U.S. Public Health Service Officers Corps, too, are

aware of plaintiff’s need for surgical intervention and “have failed to direct that the medical

procedure[] be performed,” and thus “have been deliberately indifferent to [p]laintiff’s medical

needs.” Id. ¶ 69; see id. ¶ 61. These defendants are sued in their individual and official

capacities, see id. ¶¶ 5-6, 63, 70, and plaintiff demands compensatory and punitive damages as

well as costs and attorney fees. See id.

In Count V, plaintiff alleges that Dr. Regina Benjamin, Surgeon General, and

Schappaugh “are responsible for providing adequate medical care to inmates,” id. ¶ 78, that they

have failed or otherwise refused to provide plaintiff the treatment prescribed for him, and that

they have “acted with deliberate indifference to [p]laintiff’s medical needs,” id. ¶ 79. He sues

Dr. Benjamin in her official capacity, and Schappaugh in both his official and individual

2 capacity, “for malpractice, deliberate indifference, conscious avoidance or deliberate avoidance

for the pain [p]laintiff has suffered and the continued degeneration of his injuries,” for which he

demands monetary compensation. Id.

Plaintiff also brings a claim in Count IV under the Administrative Procedure Act

(“APA”), see

et seq., against the United States Department of Justice (“DOJ”),

the BOP, and the Public Health Service, for the agencies’ failure “to promulgate regulations

along with a notice and comment period to provide procedures for the equal access to health care

by inmates” in BOP custody. Compl. ¶ 72. He demands a declaratory judgment and injunctive

relief directing the Attorney General, the BOP Director, and the Surgeon General to “promulgate

independent regulations authorizing the [Public Health Service] . . . to administer [healthcare] to

inmates.”

.

Lastly, in Count VI, plaintiff demands mandamus relief to compel defendants to provide

“necessary medical care [to include] out-patient, in-patient care, medicine, and/or medical

procedures to repair an injury and to further prevent it’s [sic] degeneration, or place [p]laintiff

into jeopardy of loss of life[] or further illness.”

.

II. DISCUSSION

A. Plaintiff’s Claims Against the Individual Defendants in their Official Capacities Will Be Dismissed

Defendants move to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure

on the ground that sovereign immunity shields the United States from suit with respect to

plaintiff’s constitutional claims. Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’

Mem.”) at 7-8.

The claims plaintiff brings against individual defendants in their official capacities, see

3 Compl. ¶¶ 2-6, are treated as if they were brought against the United States directly. See

Kentucky v. Graham,

(1985). “[T]he United States may not be sued

without its consent and . . . the existence of consent is a prerequisite for jurisdiction.” United

States v. Mitchell,

(1983). Such consent may not be implied, but must be

“unequivocally expressed.” United States v. Nordic Village, Inc.,

(1992).

The Federal Tort Claims Act (“FTCA”) waives the United States’ immunity as to certain

common law torts, see

(b)(1), 2679(b), but not constitutional tort claims, see

FDIC v. Meyer,

(1994); Clark v. Library of Congress,

(D.C. Cir. 1984). Accordingly, defendant’s motion to dismiss plaintiff’s constitutional claims

against the individual defendants in their official capacities will be granted.

B. Plaintiff’s Claims Against Defendants McLaughlin, Maye and Schappaugh Will Not Be Dismissed for Lack of Subject Matter Jurisdiction, Insufficient Process, or Insufficient Service of Process

Defendants McLaughlin, Maye and Schappaugh move to dismiss under Rules 12(b)(2),

(4) and (5) on the ground that insufficient process and insufficient service of process deprive the

Court of personal jurisdiction over them. See Defs.’ Mem. at 8-9. Plaintiff responds that the

“lack of personal service . . . should not be held against him” in light of his incarceration. Pl.’s

Answer to Mot. to Dismiss (“Pl.’s Opp’n”) at 1. He represents that, as an incarcerated person, he

“has no internet access [and] no access to . . . phone directories from which he could glean the

residence addresses of defendants.”

The Court is mindful that a pro se party who is proceeding in forma pauperis may rely on

the Clerk of Court and the United States Marshals Service to effect service of process on his

behalf. See Fed. R. Civ. P. 4(c)(3). In these circumstances, the plaintiff generally should not be

4 penalized for court officers’ failure or mistake in properly effecting service. See Mondy v. Sec’y

of the Army,

(D.C. Cir. 1988) (MacKinnon, J. concurring). Plaintiff is not

wholly relieved of his obligation to serve the defendants because of his pro se status, however.

See Lee v. Armontrout,

(8th Cir. 1993) (“While in forma pauperis plaintiffs

should not be penalized for a marshal’s failure to obtain proper service, it was [the plaintiff’s]

responsibility to provide proper addresses for service on [the defendants].”); Thomas v.

Robinson, No. 8:08-CV-662-T-30,

, at *1 (M.D. Fla. Nov. 25, 2008) (“Even

though the Court must assist pro se litigants proceeding in forma pauperis with service of

process, the Court cannot meet this duty when a plaintiff fails to provide the Court with a valid

name or address for a defendant.”). In this case, the failure to effect service cannot “be ascribed

to the plaintiff’s dilatoriness or fault or inaction.” Holly v. Metro. Transit Auth.,

(5th Cir. 2007) (per curiam) (internal quotation marks and citation omitted).

Accordingly, defendants’ motion to dismiss under Rules 12(b)(2), (4) and (5) will be denied

without prejudice. See, e.g., Portis v. Caruso, No. 1:09CV846,

, at *1 (W.D.

Mich. Sept. 13, 2010) (adopting Magistrate Report and Recommendation to grant defendants’

motion under Rule 12(b)(5), construed as a motion to quash service, and allowing the prisoner

plaintiff another attempt to properly serve defendants); Kaminsky v. Wake Forest Univ. Baptist

Med. Ctr., No. 1:08CV882,

, at *5 (M.D.N.C. Sept. 30, 2009); Muhammad v.

Bunts, No. 1:03CV228,

, at *8 (N.D.W. Va. March 31, 2006).

C. Plaintiff’s Bivens Claim Against Warden Maye Will Be Dismissed

Plaintiff alleges that, as FCI Bastrop’s Warden, defendant Maye is “responsible for the

5 custody and care of inmates housed” there. Compl. ¶ 4. His sole involvement in the events

giving rise to plaintiff’s claims appears to be his responses to grievances filed by plaintiff in

2009 regarding his desire to see a medical doctor,

Ex. D-E (Request for Administrative

Remedy dated April 9, 2009 and Response dated April 28, 2009), and a surgeon,

Ex. J

(Informal Request to Staff dated June 10, 2009 and Response dated July 29, 2009). Defendants

contend that plaintiff “does not identify any direct involvement by [d]efendant Maye in the

alleged constitutional violations,” Def.’s Mem. at 12, and that Maye “is not personally liable for

constitutional torts of employees he supervises under the doctrine of respondeat superior,”

. In response, plaintiff argues that Maye is responsible for “a direct denial of treatment,” Pl.’s

Opp’n at 4, through this response to an inmate grievance:

A review of your case reveals that you have an appointment with a surgeon in the near future. Should you require follow-up care in the interim, you have access to Health Services via sick call, Inmate Request to Staff, and the Health Services Administrator at main line.

Compl., Ex. J (Response to Request for Administrative Remedy, Remedy I.D. #547957-F1). In

plaintiff’s view, Maye “is personally responsible for his own actions.” Pl.’s Opp’n at 4.1

In Bivens, the Supreme Court “recognized for the first time an implied private action for

damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr.

1 The Court will not address plaintiff’s apparent attempt to add a new claim against Warden Maye “for failing to provide proper training and guidance to McLaughlin and Schappaugh,” Pl.’s Opp’n at 4, because it does not appear in the complaint. See Gilmour v. Gates, McDonald & Co.,

(11th Cir. 2004) (per curiam) (holding that plaintiff may not raise new legal claim for the first time in his opposition to defendant’s summary judgment motion). Plaintiff, however, might consider filing an amended complaint to add new claims or parties to this suit. See Carter v. Dep’t of the Navy, No. 05-cv-0775,

, at *4 (D.D.C. Aug. 24, 2006) (dismissing without prejudice new claims raised in plaintiff’s opposition to defendant’s motion to dismiss with leave to amend the complaint), aff’d,

(D.C. Cir. 2007) (per curiam).

6 Servs. Corp. v. Malesko,

(2001). It appears that the plaintiff’s constitutional

claim against Warden Maye could only be based on the theory of respondeat superior, and thus

plaintiff purports to hold him liable for the wrongful acts committed within the scope of his

federal employment. See generally Monell v. Dep’t of Soc. Serv. of the City of New York,

(1978). Warden Maye’s supervisory role does not render him personally liable

for the alleged unconstitutional acts of his subordinates. See

(respondeat superior

liability cannot form the basis of liability for a § 1983 claim). And a prison official’s decision on

an inmate grievance with respect to an alleged constitutional violation does not itself render him

personally liable under Bivens. See Arocho v. Nafziger,

(10th Cir.

2010) (affirming dismissal of Bivens claim against warden because the denial of a grievance

regarding treatment for Hepatitis C does not establish his participation in alleged constitutional

violation); Hansen v. Bragg, No. EP-09-CV-166,

, at *9 (W.D. Tex. Jan. 12,

2010) (dismissing Bivens claim against warden whose “only involvement was in responding to

Plaintiff’s administrative remedy request and in discussing Plaintiff’s medical needs with him

and directing him to request information about his dentures from the medical personnel,” and

citing cases supporting the proposition that “the act of responding to an inmate's administrative

remedy, alone, is insufficient to support a constitutional claim against the supervisory official

who so responded”).

Simply put, “vicarious liability is inapplicable to Bivens . . . suits,” Ashcroft v. Iqbal,

(2009). Plaintiff fails to articulate any specific action taken by Warden Maye

in violation of his constitutional rights, and, therefore, this Bivens claim must be dismissed. Id.;

Cameron v. Thornburgh,

(D.C. Cir. 1993) (concluding that a complaint

7 naming Attorney General and the BOP Director as defendants based on theory of respondeat

superior, without allegations specifying their involvement in the case, did not state Bivens claim

against them); Epps v. U.S. Attorney Gen.,

(D.D.C. 2008) (citing

Marshall v. Reno,

(D.D.C. 1996)) (“A superior official cannot be held

liable under Section 1983 or Bivens for the constitutional torts of employees under him or her;

the common law theory of respondeat superior does not pertain to the federal government in this

context.”).

D. Plaintiff’s Bivens Claim Against Schappaugh Will Be Dismissed

Plaintiff purports to bring his claims against Schuppaugh under

. See

Compl. ¶ 13. Defendants move to dismiss this claim on the ground that, as an officer of the

Public Health Service, Schappaugh is absolutely immune from suit under

(a),

Defs.’ Mem. at 12, which provides:

The remedy against the United States provided by [

(b) and 2672], or by alternative benefits provided by the United States where the availability of such benefits precludes a remedy under [

(b)], for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee . . . whose act or omission gave rise to the claim.

(a).

Schappaugh is “an employee of the Commissioned Corps of United States Public Health

Service,” Defs.’ Mem., Ex. A (Schappaugh Decl.) ¶ 2, and, effective September 27, 2009, he is

the Health Services Administrator at FCI Bastrop,

; see

Attach. (Request for Personnel

8 Action – Commissioned Officer and Personnel Order). The complaint alleges personal injury

resulting from the performance of Schappaugh’s duties as the Health Services Administrator.

“By its terms, § 233(a) limits recovery for such conduct to suits against the United States,” Hui

v. Castaneda,

(2010), and plaintiff’s Bivens claims against this Public

Health Service officer are precluded,

; see Murrell v. Serrato, No. CV 09-0556,

, at *4 (D. Ariz. Sept. 14, 2010) (dismissing prisoner plaintiff’s Bivens claims

against Public Health Service employees for alleged denial of adequate medical and dental care

for lack of subject matter jurisdiction); Edwards v. Price, No. 09 CV 5583,

,

at *5 (N.D. Ill. July 16, 2010) (dismissing Bivens claim against Public Health Service nurse in

her individual capacity because she is immune from suit under § 233(a)); Tillitz v. Jones, No.

03-742,

, at *4 (D. Or. Sept. 22, 2004) (dismissing Bivens claims against the

Chief Dental Officer at FCI Sheridan for lack of subject matter jurisdiction, noting that “by

operation of § 233(a) [plaintiff] must bring his claim against the United States pursuant to the

FTCA.”).

E. Plaintiff’s Claim for Mandamus Relief Will Be Dismissed as Moot

Defendants argue that plaintiff is not entitled to mandamus relief compelling them to

provide a medical procedure, Defs.’ Mem. at 21, and plaintiff concedes that his “mandamus

claim is now moot by virtue of the fact that the BOP provided hernia surgery.” Pl.’s Opp’n at 3.

Accordingly, the Court will dismiss Count VI of the complaint as moot.

F. Plaintiff’s APA Claim Will Be Dismissed

Plaintiff contends that defendants are required “to promulgate regulations along with a

notice and comment period” setting forth “procedures for the equal access to health care by

9 inmates,” Compl. ¶ 72, regardless of the facility to which they are designated, see id. ¶ 75.

Wholly absent, plaintiff alleges, “is specific direction to medical staff to determine inmates[’]

eligibility for medial treatment.” Id. Plaintiff apparently seeks revision of the BOP’s Program

Statement 6301.01, Patient Care (1/15/2005), and demands new regulations by the Public Health

Service directing it “to administer healthcare to inmates.” Id. ¶ 76. Defendants move to dismiss

plaintiff’s APA claims, arguing that such “interpretive” rules are not subject to the APA. Defs.’

Mem. at 19. Plaintiff does not address this argument in his opposition, and the Court treats the

matter as conceded. See Hopkins v. Women’s Div., Gen. Bd. of Global Ministries,

(D.D.C. 2002) (““It is well understood in this Circuit that when a plaintiff files an

opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a

court may treat those arguments that the plaintiff failed to address as conceded.”) (citations

omitted); see Fox v. Am. Airlines, Inc.,

(D.C. Cir. 2004) (affirming

district court’s dismissal of a complaint where the plaintiff failed to comply with Local Civil

Rule 7(b)).2

Furthermore, as defendants argue, the BOP’s program statements generally are

considered internal policy statements rather than enforceable legislative rules to which the APA

applies.3 See Phillips v. Hawk, No. 98-5513,

, at *1 (D.C. Cir. Apr. 14, 1999)

2 If a party fails to file a memorandum of points and authorities in opposition to a motion within the time allotted by the Court, the Court may treat the motion as conceded. LCvR 7(b). 3 Generally, an agency must publish a general notice of proposed rule making in the Federal Register,

(b), give notice to interested parties and an opportunity for them to comment,

(c), and publish the rule not less than 30 days before its effective date,

(d). These provisions do not apply “to interpretative rules, general (continued...)

10 (per curiam) (concluding that Program Statements 5100.06 and 5800.09 were internal agency

guidelines not subject to the APA’s notice and comment requirements); Parsons v. Pitzer,

(7th Cir. 1998) (concluding that Program Statement 5162.02, which “merely lists

certain crimes and identifies them as crimes of violence in all cases or in some cases[,] . . . is not

a substantive rule subject to the [APA]”). Accordingly, Count IV of the complaint will be

dismissed.

G. The Remaining Bivens Claims Will Not Be Dismissed for Improper Venue

Defendants move under Rule 12(b)(3) to dismiss plaintiff’s Bivens claims on the ground

that venue in this district is improper. Defs.’ Mem. at 10. Plaintiff counters that, under

(e), venue in the District of Columbia is proper for any case brought against the

BOP. Pl.’s Opp’n at 3. His reliance on

(e) is misplaced, however, insofar as he

brings Bivens claims against the individual defendants in their individual capacities.4

“Courts in this jurisdiction 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. By naming high government officials as defendants, a plaintiff could bring a suit here

that properly should be pursued elsewhere.” Cameron,

. Venue in a Bivens case

3 (...continued) statements of policy, or rules of agency organization, procedure, or practice.”

(b)(3)(A); see

(d)(2). 4 Under

(e), a civil action against a government officer or employee “may . . . be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred . . . ., or (3) the plaintiff resides if no real property is involved in the action.”

Under this provision, notwithstanding the “residence” of the Attorney General and Dr. Benjamin and the location of the headquarters of the DOJ and the BOP, venue in this district is improper.

11 is governed by

(b). Stafford v. Briggs,

(1980); Cameron,

(applying § 1391(b) to Bivens action); Freeman v. Fallin,

(D.D.C. 2003) (same). Under that provision, venue is proper 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.”

(b). Thus, venue is proper if the “activities that

transpired in the forum district were not insubstantial in relation to the totality of the events”

plaintiff alleges. Lamont v. Haig,

, 1134 n.62 (D.C. Cir. 1978).

The Court concludes that venue is improper in this district. All of the defendants do not

reside in the District of Columbia; a substantial part of the events relevant to this case did not

occur in this district; there is another district where this action otherwise may be brought. The

defendants most closely involved in the events described in the complaint work at FCI Bastrop,

and a substantial portion of the events giving rise to this action occurred there.

H. The Court Will Transfer This Action to the United States District Court for the Western District of Texas

Having concluded that venue is improper in the District of Columbia, the Court must

either dismiss the action or, “if it be in the interest of justice, transfer [it] to any district or

division in which it could have been brought.”

(a). “The decision whether a

transfer or a dismissal is in the interest of justice . . . rests within the sound discretion of the

district court.” Naartex Consulting Corp. v. Watt,

(D.C. Cir. 1983). Transfer

is appropriate “when procedural obstacles [such as lack of personal jurisdiction, improper venue,

and statute-of-limitations bars] impede an expeditious and orderly adjudication on the merits.”

12 Sinclair v. Kleindienst,

(D.C. Cir. 1983). Generally, the interests of justice

require transferring a case to the appropriate judicial district rather than dismissing it. See

Goldlawr, Inc. v. Heiman,

(1962).

Review of plaintiff’s complaint and the factual allegations therein suggest that the United

States District Court for the Western District of Texas will have personal jurisdiction over the

defendants most involved with the underlying events and that venue will lie in that district.5

Accordingly, the Court will transfer this action. See, e.g., Baez v. Connelly, No. 09-0925,

(D.D.C. Aug. 27, 2010) (transferring action under § 1406(a) to the district

which may exercise personal jurisdiction over defendants and where events giving rise to

plaintiff’s claims occurred); see also Spotts v. United States,

(transferring case under §§ 1404(a) and 1406(a)).

An Order consistent with this Memorandum Opinion will be issued separately.

/s/ DATE: February 8, 2011 COLLEEN KOLLAR KOTELLY United States District Judge

5 The individual defendants raise the statute of limitations and qualified immunity as affirmative defenses. In light of the Court’s rulings on personal jurisdiction and venue, however, consideration of these defenses is better left for the transferee court, presumably after service of process has been effected properly and after counsel enters an appearance on their behalf.

13