UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROBERT GILLENS,

Plaintiff,

v. Civil Action No. 22-1645 (TJK) COLETTE PETERS, Director of the Federal Bureau of Prisons, et al.,

Defendants.

MEMORANDUM ORDER

Robert Gillens, proceeding pro se, sues various Federal Bureau of Prisons officials, for

alleged constitutional violations stemming from his confinement at the United States Penitentiary

in Bruceton Mills, West Virginia. He seeks declaratory and injunctive relief, as well as damages

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

(1971).

Before the Court is Defendants’ Motion to Dismiss or, Alternatively, to Transfer. ECF No. 11.

Defendants assert several grounds for dismissal, including lack of personal jurisdiction, improper

service, failure to state a claim, and improper venue. Alternatively, they move to transfer this case

to either the Northern District of West Virginia, where the conduct giving rise to Plaintiff’s claims

occurred, or the Middle District of Florida, where Plaintiff is now incarcerated. For the following

reasons, the Court will grant Defendants’ motion in part. Specifically, it will dismiss his Bivens

claims against Defendants Michael Carvajal, Ian Connors, and J.C. Petrucci and transfer the re-

maining claims to the Northern District of West Virginia, reserving for the transferee court the

task of resolving the remaining grounds for dismissal. I. Background

Gillens sues several Federal Bureau of Prisons (“BOP”) officials for constitutional viola-

tions they allegedly inflicted on him while he was incarcerated at a federal prison in Bruceton

Mills, West Virginia. He is now housed at a BOP facility in Coleman, Florida. See ECF No. 1,

§ A, ¶ 1 (“Compl.”). In broad strokes, Plaintiff seeks various forms of relief stemming from three

incidents: first, he says he was placed in a Special Housing Unit following an incident at the facil-

ity, and BOP officials denied him various privileges while he awaited a disciplinary hearing for

one hundred days, all in violation of his due process rights, ECF No. 1, § B ¶¶ 1–12; second, he

claims an unnamed BOP official violated his First Amendment rights by opening his legal mail,

id. § B, ¶¶ 13–18; and third, he claims that BOP has acted with deliberate indifference by failing

to provide him dental care, causing his teeth to “decay, crack, bleed” and his gums to develop

“gum disease,” id. § B, ¶¶ 19–23. As to each claim, Plaintiff alleges that the then-BOP director

Carvajal, “failed to implement a BOP policy and procedure” to prevent the alleged wrongdoing.

See id. § B, ¶¶ 11, 15, 19.

Defendants are the BOP’s Director, Colette Peters, in her official capacity 1; Carvajal; Con-

nors, BOP’s National Inmate Appeals Administrator; Petrucci, the BOP Mid-Atlantic Regional

Director; and four individuals from the West Virginia prison: Ryan McCaffrey, the Associate War-

den then; Kenneth Craddock, a disciplinary hearing officer; Shane Hixenbaugh, a corrections of-

ficer; and DOE #1, an unknown staffer who processes mail. See Compl. § A, ¶¶ 4–8. Plaintiff

sues only Peters in her official capacity. See id. § A, ¶ 9. He sues all other defendants in their

individual capacities for damages under Bivens. See id. § A, ¶ 10. Besides damages, Plaintiff

1 Plaintiff sued the then-BOP director, Michael Carvajal, in both his official and individual capacities. Peters has since succeeded Carvajal as BOP director and assumes his place as the defendant for Plaintiff’s official-capacity claims. See Fed. R. Civ. P. 25(d). But Carvajal remains a defendant in his individual capacity.

2 seeks a declaratory judgment that Defendants’ conduct violated his constitutional rights and an

injunction requiring the immediate provision of dental care. See id. § D, ¶¶ 1–2.

Defendants move to dismiss on several grounds, including lack of personal jurisdiction

over each defendant besides Carvajal and Connors, improper service, failure to state a claim, and

improper venue. See ECF No. 11. Alternatively, they move to transfer any surviving claims to

either the Northern District of West Virginia, where the conduct underpinning Plaintiff’s claims

took place, or the Middle District of Florida, where Plaintiff is now incarcerated. See id.

II. Legal Standards

Federal Rule of Civil Procedure 12(b)(3) authorizes dismissal for improper venue. Alt-

hough a court resolving such a motion “accepts the plaintiff’s well-pleaded factual allegations

regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff’s

favor, and resolves any factual conflicts in the plaintiff’s favor,” the plaintiff retains the burden to

prove proper venue. Sierra Club v. Johnson,

(D.D.C. 2009) (quotation

omitted). If a court finds it lacks venue, it “shall dismiss, or if it be in the interest of justice, transfer

such case to any district or division in which [the action] could have been brought.”

(a).

Under Rule 12(b)(6), a complaint must “contain sufficient factual matter . . . to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (quotation

omitted). A claim is plausible if “it contains factual allegations that, if proved, would allow the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Hurd v. District of Columbia,

(D.C. Cir. 2017) (quotation omitted). The Court

must “accept all the well-pleaded factual allegations of the complaint as true and draw all reason-

able inferences from those allegations in the plaintiff's favor.”

(quotation omitted).

3 III. Analysis

A. Bivens Claims

1. Venue

Plaintiff’s Bivens claims are the heart of his complaint, and so the Court begins by address-

ing whether venue on these claims is proper in the District of Columbia. 2 For such claims, venue

is proper in the judicial district where (1) any defendant resides if all defendants reside in the same

state as that district; (2) “a substantial part of the events or omissions giving rise to the claim[s]

occurred”; or (3) if no district satisfies the foregoing, “any judicial district in which any defendant

is subject to the court’s personal jurisdiction.”

(b); see also Coltrane v. Lappin,

, 233–34 (D.D.C. 2012). 3

As to these Bivens claims, venue is improper here. First, most defendants reside outside

the District of Columbia, making § 1391(b)(1) inapplicable. See Compl. § A, ¶¶ 3–8; ECF No.

11-1 at 15. Second, a substantial part of the events or omissions giving rise to the claims did not

2 “Typically, questions of personal jurisdiction are determined prior to venue, although in certain circumstances ‘sound prudential justification’ may allow the court to consider venue with- out first deciding personal jurisdiction.” Pinson v. U.S. Dep’t of Just.,

, 292 n.17 (D.D.C. 2014) (quoting Leroy v. Great W. United Corp.,

(1979)). Courts in this circuit have recognized such a justification exists where “the venue question . . . provides an easier resolution of the case,” as it does here. Cameron v. Thornburgh,

, 257 n.3 (D.C. Cir. 1993). Further, if the Court were to dismiss Plaintiff’s claims for lack of personal ju- risdiction rather than transferring the case to a district where both venue and personal jurisdiction lie, the pursuit of his claims might be stymied by a statute-of-limitations problem. Especially given Plaintiff’s pro se status, such an outcome would not be in the interests of justice. Cf. Goldlawr, Inc. v. Heiman,

, 466–67 (1962) (allowing courts to transfer a case without personal jurisdiction over the defendants to avoid “penaliz[ing]” a plaintiff who “shows a desire . . . to begin his case and thereby toll whatever statutes of limitation would otherwise apply” by dismissing a case because of a venue “mistake”). 3 The Court first considers whether venue is proper for Plaintiff’s Bivens claims, and then turns to the remaining official-capacity claim against Peters. Lamont v. Haig,

(D.C. Cir. 1978) (plaintiffs generally must “demonstrate proper venue with respect to each cause of action and each [defendant]”); see also Coltrane,

(applying this principle to consider venue as to Bivens claims separately from other claims in the complaint).

4 occur here under § 1391(b)(2). The only “omissions” Plaintiff alleges took place here were Car-

vajal’s and Connor’s failure to enact policies or otherwise correct constitutional violations. See

Compl. § B, ¶¶ 11, 15, 17, 19, 21, 23. And third, because a substantial part of the events or omis-

sions giving rise to the claims did happen in the Northern District of West Virginia, see id. § B,

¶¶ 1–9, 13–14, 19, venue is proper there under § 1391(b)(2), rendering § 1391(b)(3) inapplicable.

2. Transfer

Having concluded that venue for these claims does not lie in this district, the Court is left

with two options: dismiss them or transfer them to a district “in which they could have been

brought.”

(a). Thus, before transferring, the court must “‘decide as a preliminary

matter that venue and jurisdiction would be proper as to all defendants’ in the transferee court.”

Coltrane,

(quoting Sharp Elecs. Corp. v. Hayman Cash Reg. Co.,

(D.C. Cir. 1981)). Beyond that, the decision whether to dismiss or transfer a case

“rests within the sound discretion of the district court.” Naartex Consulting Corp. v. Watt,

(D.C. Cir. 1983). But transfer, rather than dismissal, is the “standard remedy for

improper venue.” Nat’l Wildlife Fed’n v. Browner,

(D.C. Cir. 2001). And that

presumption “is especially strong where a plaintiff files a complaint pro se.” Fam v. Bank of Am.

NA (USA),

(D.D.C. 2017).

For the following reasons, the Court will dismiss the Bivens claims against Carvajal, Con-

nors, and Petrucci, but it will transfer the Bivens claims against the remaining defendants to the

Northern District of West Virginia.

a. Defendants Carvajal, Connors, and Petrucci

The Court doubts that either the Northern District of West Virginia or Middle District of

Florida would have personal jurisdiction over these defendants. See

(a)

(West Virginia Long-Arm Statute);

(1)(a) (Florida Long-Arm Statute). These

5 defendants reside outside those districts, and Plaintiff does not allege they directed or otherwise

participated in the conduct of which he complains within the district. For that reason, it appears

unlikely that the Court could transfer the Bivens claims against these defendants to either of those

districts. See Coltrane,

.

But even when venue is improper, courts may dismiss claims rather than transfer them if

they fail to satisfy Rule 12(b)(6). See Cameron,

n.5 (declining to transfer Bivens

claims against the then-Attorney General and BOP director under

because doing

so “plainly [was] not in the interests of justice” where “briefing and argument . . . ha[d] convinced

[the court] that appellant ha[d] stated no claim against” those defendants); Clark v. DocuSign, Inc.,

No. 21-cv-1007 (DLF),

, at *3 (D.D.C. Nov. 15, 2022) (noting that when a

court finds it lacks venue, “dismissal may be appropriate in circumstances where the complaint

contains ‘obvious substantive defects’” (quoting Fam, 236 F. Supp. 3d at 409–10)). And that is

the case with the Bivens claims against these defendants. Plaintiff does not allege that Carvajal,

Connors, or Petrucci—all of whom hold BOP regional or national leadership positions—partici-

pated in the conduct he claims violated his constitutional rights. Burke v. Lappin,

(D.D.C. 2011) (“To be held liable under Bivens, the official must have participated per-

sonally in the alleged wrongdoing.” (citing Iqbal,

)). Nor does he assert that any

of these defendants “participated in any decision or approved any policy that related to the case.”

Cameron,

. And respondeat superior is unavailable for Bivens claims. See, e.g.,

For his Fifth and First Amendment claims, Plaintiff alleges only that Carvajal failed to

implement policies or procedures that would have prevented his injuries. Compl. § B, ¶¶ 11, 15.

These allegations are no more than “‘naked assertion[s]’” that Carvajal somehow “participat[ed]

6 in the events giving rise to the constitutional claim.” DeBrew v. Atwood,

(D.D.C. 2017) (quoting Bell Atl. Corp. v. Twombly,

(2007)) (dismissing similar

claims). The Court need not credit such “bald assertion[s] that [senior BOP officials] were aware

of or adopted certain policies or practices.”

Nor do these allegations, in any event, amount to

the sort of personal involvement in wrongdoing required to sustain a Bivens action. See

at 131–

32; see also Morris v. U.S. Sent’g Comm’n,

(D.D.C. 2014) (“[H]igh-level

officials . . . typically are not subject to Bivens liability since they do not routinely participate per-

sonally in decisions about a particular individual at a particular location.”).

Plaintiff’s Eighth Amendment claim fares no better. He asserts that Carvajal knew from

“grievances, written and formal complaints” that he had not received a teeth cleaning “and failed

to take any action,” “which caused a reckless disregard for Plaintiff’s dental health care.” Compl.

§ B, ¶ 21. Similarly, Petrucci and Connors “failed to correct” these violations after “review[ing]”

complaints, in deliberate indifference to his Eighth Amendment rights. Id. § B, ¶¶ 22–23. To

begin, Plaintiff does not allege that he filed any complaint related to his dental hygiene or any basis

to infer that these defendants might have reviewed such a complaint. But even if he had, the mere

fact that these officials knew about the alleged wrongdoing “provides no basis for imposing per-

sonal liability” on them because they “could not have possibly participated in the day-to-day de-

cisions about plaintiff’s confinement.” Burke,

(dismissing similar Bivens

claims against the BOP director and other officials). In other words, even if Plaintiff had filed

grievances, any BOP official’s response—or lack thereof—“does not itself render him personally

liable” for the underlying constitutional violation. See Gonzalez v. Holder,

(D.D.C. 2011).

Thus, the Court will dismiss the Bivens claims against Carvajal, Connors, and Petrucci.

7 b. Defendants McCaffrey, Craddock, Hixenbaugh, and DOE #1

Although the Court dismisses the claims against Carvajal, Connors, and Petrucci, it will

exercise its discretion under

(a) to transfer the Bivens claims against McCaffrey,

Craddock, Hixenbaugh, and DOE #1 to the Northern District of West Virginia. 4 The Northern

District of West Virginia is a district “in which [these claims] could have been brought.”

(a). As the Court has already noted, venue is proper there because “a substantial part of the

events or omissions giving rise to [Plaintiff’s] claim[s] occurred” at the BOP facility within the

district,

(b); and that court may exercise personal jurisdiction over the remaining

defendants either because they currently reside in the district or because of their conduct there as

alleged in the complaint, see Compl. § B, ¶¶ 3–6;

(a)(3). See Coltrane,

.

The Court further finds that transfer, rather than dismissal, is “in the interest of justice.”

(a). Because Plaintiff proceeds pro se, the presumption favoring transfer is par-

ticularly strong. See Fam,

; see also Coltrane,

(favoring “transfer . . . over dismissal” where “plaintiff [was] proceeding pro se”). And Plaintiff

has requested that the Court appoint counsel and has moved to amend his complaint. 5 ECF No.

19. Thus, the interests of justice favor transfer to the Northern District of West Virginia.

4 As noted above, Defendants also propose the Middle District of Florida, where Plaintiff resides, as an alternate transferee court. But that court lacks personal jurisdiction over these de- fendants, so it is not a candidate for transfer. See Coltrane,

;

(1)(a). 5 Plaintiff included a document titled “amended complaint” with his motion for leave to file his surreply. ECF No. 19-1. The Court leaves to the transferee court the question of whether to allow any such amendment. Still, the Court notes that the “amended complaint” does not change the allegations directed at Carvajal, Connors, or Petrucci. See

§ IV, ¶¶ 11, 15, 22–24. Thus, the amendment would not affect the Court’s analysis of those claims.

8 B. Official-Capacity Claim

1. Venue

All that remains of this suit is Plaintiff’s official-capacity claim against current BOP direc-

tor Peters, through which he seeks an injunction requiring immediate dental care. See Compl. § D,

¶ 2. Unlike the Bivens claims comprising the majority of Plaintiff’s suit, the District of Columbia

is—barely—a permissible venue for this claim. See

(e)(1)(A) (venue for claims

against a federal official is proper where “a defendant . . . resides”); see ECF No. 11-1 at 47 n.8

(acknowledging the BOP director works in the District of Columbia).

2. Transfer

Thus, the Court will analyze Defendants’ motion to transfer this claim under § 1404(a),

which permits transfer even when venue is proper in the transferor court. See

(a)

(“For the convenience of parties and witnesses, in the interest of justice, a district court may trans-

fer any civil action to any other district or division where it might have been brought.”). For the

following reasons, the Court will transfer this claim to the Northern District of West Virginia,

along with Plaintiff’s Bivens claims.

To begin, even when venue is technically proper, “[c]ourts in this circuit must examine

challenges to . . . venue carefully to guard against the danger that a plaintiff might manufacture

venue in the District of Columbia.” Cameron,

. A complaint “must allege more

than a ‘bare assumption that policy decisions made in Washington might have affected’ a Plain-

tiff’s treatment in federal prison.” Pinson v. U.S. Dep’t of Just.,

(D.D.C.

2014) (quoting Cameron,

). And “[w]here . . . the only real connection the lawsuit

has to the District of Columbia is that a federal agency headquartered here is charged with gener-

ally regulating and overseeing the administrative process, venue is not appropriate in the District

of Columbia.” Al-Ahmed v. Chertoff,

(D.D.C. 2008) (quotation omitted)

9 (cleaned up). Such is the case here, where Plaintiff does not challenge any BOP policy or allege

that the director participated in any wrongdoing. Instead, Plaintiff requests only that the BOP

provide him with dental care, a process he claims the BOP director is supposed to oversee. See

ECF No. 17 at 12.

Still, before carrying out transfer under § 1404(a), courts must ensure venue is proper in

the transferee district and consider several factors. When a plaintiff is incarcerated, courts consider

“(1) the prisoner’s difficulty in communicating with counsel, (2) the difficulty of transferring the

prisoner, (3) the availability of witnesses and files, (4) where the prisoner’s immediate custodian

is located, and (5) the speed of final resolution.” See Montgomery v. Barr,

,

173–74 (D.D.C. 2020) (citing Starnes v. McGuire,

, 929–32 (D.C. Cir. 1974) (en

banc)). “[A] court should also consider ‘whether the case involves a national policy issue that may

require the testimony of policymakers.”

at 174 (quoting Accurso v. Fed. Bureau of Prisons,

No. 17-cv-2626 (APM),

, at *2 (D.D.C. Oct. 15, 2018). And in all cases, courts

consider various private- and public-interest factors, such as “the parties’ choices of forum, where

the claim arose, the convenience of the parties and witnesses, and ‘the ease of access to sources of

proof.’”

(quoting Spotts v. United States,

(D.D.C. 2008)). Courts “retain

broad discretion in weighing these factors.” Pinson,

.

First, venue is proper in the Northern District of West Virginia because “a substantial part

of the events or omissions giving rise to the claim occurred” there.

(e)(1)(B).

Plaintiff’s claim for injunctive relief rests on the purported Eighth Amendment violation he asserts

he has suffered—that BOP has failed to provide him dental care in over three years. Compl. § B,

¶ 19. Although Plaintiff is now incarcerated in the Middle District of Florida, his complaint alleges

he was held in the Northern District of West Virginia at least as recently as January 2021. See id.

10 § B, ¶ 14. He filed his complaint in June 2022. See ECF No. 1 at 12. So “a substantial part of

the . . . omission giving rise to [this] claim” occurred in the Northern District of West Virginia.

(e)(1)(B).

Second, the relevant factors under § 1404(a) favor transfer to the Northern District of West

Virginia, rather than severing the claim and retaining jurisdiction over it here. See Pinson,

(explaining that, to transfer only certain claims in a complaint, “the court must

first sever the relevant claims into separate cases”). Plaintiff is pro se, so the first Starnes factor

relevant to incarcerated plaintiffs does not apply. See Montgomery, 502 F. Supp. 3d at 173–74.

And he is no longer incarcerated in the Northern District of West Virginia, rendering the second

and fourth Starnes factors neutral as between the Northern District of West Virginia and the Dis-

trict of Columbia. See

All the remaining factors favor transfer; none supports severing the

claim to keep it here. See

Plaintiff’s Eighth Amendment claim arose in the Northern District

of West Virginia, and it would be more convenient for the parties to access witnesses, evidence,

and files there. See Compl. § B, ¶ 19. His claim does not challenge a national policy promulgated

here, and although the District of Columbia is his choice of forum, that choice “is mitigated when

it is not the plaintiff’s home forum.” Santos v. Trs. of Grinnell Coll.,

(D.D.C. 2013). And judicial economy favors keeping all the claims in the complaint together. See

Sanchez-Mercedes v. Bureau of Prisons,

, 426 (D.D.C. 2020) (accounting for

judicial-economy concerns when evaluating whether to transfer a prisoner’s case).

At bottom, “nam[ing] high level officials as defendants . . . is not enough to ‘anchor venue

here.’” Montgomery, 502 F. Supp. 3d at 177–78 (quoting Aftab v. Gonzalez,

(D.D.C. 2009)). For that reason, and accounting for all the relevant factors, the Court will

11 exercise its discretion to transfer Plaintiff’s official-capacity claim against the BOP director to the

Northern District of West Virginia along with his remaining Bivens claims.

IV. Conclusion and Order

For all these reasons, it is hereby ORDERED that Defendants’ Motion to Dismiss or, Al-

ternatively, Transfer, ECF No. 11, is GRANTED IN PART insofar as it seeks dismissal of the

Bivens claims against Defendants Carvajal, Connors, and Petrucci, and transfer of the remaining

claims to the Northern District of West Virginia. It is further ORDERED that the claims against

Defendants Carvajal, Connors, and Petrucci are DISMISSED. It is further ORDERED that the

Clerk of Court shall transfer the case to the U.S. District Court for the Northern District of West

Virginia.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: September 13, 2023

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