                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


WALLACE MITCHELL,                                    )
                                                     )
                       Plaintiff,                    )
                                                     )
                       v.                            ) Civ. Action No. 16-0444 (RMC)
                                                     )
MITCHEL HOLLIDAY et al.,                             )
                                                     )
                       Defendants.                   )


                                    MEMORANDUM OPINION

               In a complaint filed pro se in the Superior Court of the District of Columbia,

plaintiff Wallace Mitchell accuses three high-level officials of the Bureau of Prisons, including

former Director Charles E. Samuels, Jr., of (1) attempting to cause his “wrongful death” by

knowingly feeding him soy meals to which he was allergic; (2) ordering the destruction of his

legal materials; and (3) acting with deliberate indifference to his mental health needs by

changing his “diagnosis from paranoid schizophrenia, to antisocial personality disorder.”

Compl. at 1, 3 [Dkt. 1-1]. In addition to Samuels, Mr. Mitchell sues Chief Dietitian Mitchel

Holliday and Chief Psychiatrist Donald Lewis, all in their personal and official capacities. Mr.

Mitchell seeks injunctive and declaratory relief and $133,000 in monetary damages.

               On March 7, 2016, the Civil Division Chief of the Office of the United States

Attorney for the District of Columbia certified that at the relevant time the named defendants

“were federal employees acting within the scope of their respective office or employment.”

Removal Not. ¶ 5 [Dkt. 1]. Defendants then removed the case to this Court pursuant to 28

U.S.C. § 2679(d)(2). Defendants now move to dismiss for lack of subject matter jurisdiction,

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lack of personal jurisdiction, improper service, improper venue, and failure to state a claim upon

which relief can be granted. Since the alleged acts giving rise to Mr. Mitchell’s claims occurred

during his incarceration in Colorado, the Court will grant Defendants’ motion on the sole ground

of improper venue.

                                       I. BACKGROUND

               Mr. Mitchell is serving a prison sentence of twenty years to life for first-degree

murder and related crimes imposed in 1991 by the Superior Court of the District of Columbia.

See Mitchell v. U.S. 629 A.2d 10, 11 n.2 (D.C. 1993). In July 2014, Mr. Mitchell was transferred

to the D.C. Jail from the United States Penitentiary in Florence, Colorado, to attend post-

conviction proceedings in Superior Court. He filed the instant civil complaint in Superior Court

on October 30, 2015, while detained at the Jail. Mr. Mitchell alleges the following three

occurrences.

                   •   “On or about May 5, 2014,” Holliday ordered “the plaintiff to be fed soy

                       meals,” which resulted in “multiple allergic reactions,” including “liver

                       and kidney ailments, vomiting and convulsions, skin hives and shortness

                       of breath.” Compl. ¶ 1.

                   •   “On or about June 1, 2014,” Samuels’ office was contacted about

                       Mitchell’s return to the District on the Superior Court’s writ and his need

                       to bring “two cubic square feet of legal materials [ ] for the criminal case.

                       Despite Samuels’ assurances, Samuels ordered plaintiff’s property

                       destroyed,” which “denied the plaintiff access to the court . . . and resulted

                       in the continuing wrongful imprisonment of the plaintiff.” Compl. ¶ 2.


                                                 2
                    •   “[O]n or about January 28, 201[4],” Lewis changed Mr. Mitchell’s mental

                        health diagnosis, allegedly admitting that the changed diagnosis is a

                        “blanket diagnosis” that “reduces [BOP’s] liability [and] the requirement

                        for continued care and monitoring.” Compl. ¶ 3. See Decl. of Donald

                        Lewis ¶ 3 [Dkt. 10-4] (confirming his “mental examination of Wallace

                        Mitchell . . . at USP Florence in Florence, Colorado” on January 28,

                        2014); Pl’s Opp’n at 11 [Dkt. 12] (agreeing that the correct year is 2014).

                        As a result, Mr. Mitchell has suffered anxiety attacks and depression and

                        has heard voices and engaged in “self-mutilation.” Compl. ¶ 3.

                                      II. LEGAL STANDARD

                Federal Rule of Civil Procedure 12(b)(3) provides that a case may be dismissed

for improper venue upon motion. Kelly v. NovaStar, 637 F. Supp. 2d 34, 37 (D.D.C. 2009).

“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, 254 F. Supp.

2d 52, 56 (D.D.C. 2003). However, “[i]n considering a Rule 12(b)(3) motion, the court accepts

the plaintiff's well-pled 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.” Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274, 276 (D.D.C. 2002). To

prevail on a motion to dismiss for improper venue, a defendant must present facts sufficient to

defeat a plaintiff's assertion of venue. Id.; 2215 Fifth St. Assocs. v. U–Haul Int'l, Inc., 148 F.

Supp. 2d 50, 54 (D.D.C.2001) (citing 5A. Fed. Prac. & Proc.2d § 1352)).




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                                         III. ANALYSIS

               The removal of this case from Superior Court informs the analysis of the venue

question. “Once the Attorney General—or his authorized designee—certifies that a federal

employee was acting within the scope of his or her employment at the time of the conduct giving

rise to the claim, the ‘employee[s] are dismissed from the action, and the United States is

substituted as defendant in place of the employee[s].’” Aviles-Wynkoop v. Neal, 978 F. Supp. 2d

15, 19 (D.D.C. 2013) (quoting Osborn v. Haley, 549 U.S. 225, 230 (2007) (alterations in

original)). The claims are then governed by the Federal Tort Claims Act (“FTCA”), which

provides a limited waiver of sovereign immunity for civil actions seeking money damages from

the United States. 1 Consequently, the “tort claims against the individual defendants must be

dismissed,” and the United States is “substituted as the only remaining defendant.” 2 Id. (citing



1
      The FTCA confers exclusive jurisdiction in the district court over claims

          for money damages . . . for injury or loss of property, or personal injury or
          death caused by the negligent or wrongful act or omission of any employee
          of the Government while acting within the scope of his office or employment,
          under circumstances where the United States, if a private person, would be
          liable to the claimant in accordance with the law of the place where the act or
          omission occurred.

28 U.S.C. § 1346(b)(1).
2
         Mr. Mitchell’s claim for injunctive relief “to enjoin the defendants from the actions or
inactions described herein,” Compl. at 4 ¶ 2, is overly broad; more importantly, it is moot in light
of his transfer from USP Florence. See Cameron v. Thornburgh, 983 F.2d 253, 257 (D.C. Cir.
1993) (noting that “Cameron’s impending transfer to Leavenworth made the claim for an
injunction moot. And without the claim for injunctive relief, venue was improper in the District of
Columbia”). In addition, since this Court will not reach the merits of Mr. Mitchell’s claims, it can
neither grant nor deny his request for a declaration “that defendants violated his constitutionally
and statutorily protected rights.” Compl. at 4 ¶ 3. See Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C.
Cir. 2011) (“It is a well-established rule that the Declaratory Judgment Act is not an independent
source of federal jurisdiction. Rather, the availability of [declaratory] relief presupposes the
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Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995)). The U.S. Attorney’s

“certification only serves as prima facie evidence that can be rebutted by ‘specific facts that,

taken as true, would establish that the defendant’s actions exceeded the scope of his

employment.’” Allaithi v. Rumsfeld, 753 F.3d 1327, 1329-30 (D.C. Cir. 2014) (quoting Jacobs

v. Vrobel, 724 F.3d 217, 220 (D.C. Cir. 2013)). Mr. Mitchell has not challenged the valid

certification. Therefore, the United States is properly substituted as the defendant and any tort

claims are governed by the FTCA. 3

               The Court of Appeals instructs “[c]ourts in this circuit [to] 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 v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). FTCA claims are properly

brought in “the judicial district where the plaintiff resides or wherein the act or omission

complained of occurred.” 28 U.S.C. § 1402(b). Since Mr. Mitchell is here temporarily from


existence of a judicially remediable right.”) (citation and internal quotation marks omitted)
(alteration in original)).
3
     The bases of Mr. Mitchell’s claims are unclear. Mr. Mitchell states that he is suing Defendants
in both their personal and official capacities, but he insists in his opposition that he is not suing
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971)—the authority for bringing personal-capacity lawsuits against federal officials for
constitutional violations. Rather, Mr. Mitchell invokes D.C. Code § 11-921, which generally
confers jurisdiction in Superior Court over civil complaints brought in the District. But the U.S.
Attorney’s unchallenged certification that Defendants were acting within the scope of their official
duties effectively forecloses any tort claim against Defendants personally. And the official-
capacity claims for money damages essentially are against the United States, which may be sued
only upon consent “unequivocally expressed” by Congress in statutory text such as that in the
FTCA. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990) (internal quotation marks and
citation omitted).

                                                  5
Colorado, which is where the alleged underlying events occurred, the United States District

Court for the District of Colorado is the proper forum for litigating the FTCA claim.

                Mr. Mitchell counters that this venue is proper because “all of the alleged acts or

omissions occurred in Washington, D.C. where the Defendants work at BOP’s headquarters.”

Pl.’s Opp’n at 3 [Dkt. 12]. But this assertion is undermined by the complaint’s allegations, the

administrative claims reviewed at USP Florence, and the declarations of Holliday and Lewis,

who both live and maintain offices in Minnesota. 4 See Def.’s Exs. 1, 3. Mr. Mitchell next

contends (1) that “the injury . . . continues, as this is where plaintiff is currently residing and is

challenging his [Superior Court] convictions . . . for which he needs the legal materials,” and (2)

that the United States Marshals Service and other detention officers “rely on documentation

prepared by Holliday and Lewis” when making decisions about his diet and mental health

treatment. Pl.’s Opp’n at 3. Even if true, Mr. Mitchell has not alleged an injury arising from his

diet or medical treatment at the D.C. Jail, let alone one that could be attributed to the United

States. He claims generally that he suffers from anxiety attacks, depression, and other mental

ailments, but a prisoner may not sue the United States “for mental or emotional injury suffered

while in custody without a prior showing of physical injury.” 28 U.S.C. § 1346(b)(2). By Mr.


4
     While it is true that former Director Samuels worked in the District of Columbia at the relevant
time, the court access claim implicating Samuels in the alleged destruction of Mr. Mitchell’s legal
materials—a fact in dispute—simply has no traction. Mr. Mitchell has not alleged that he lost a
particular claim, and “like any other element of an access claim, the underlying cause of action
and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice
to a defendant.” Christopher v. Harbury, 536 U.S. 403, 416 (2002). Mr. Mitchell claims only that
“the lack of the records in [his] criminal case are preventing the matter from moving forward,”
apparently as quickly as he wishes. Pl.’s Opp’n at 10. Besides, the FTCA does not waive the
United States’ immunity with respect to claims based on constitutional torts. FDIC v. Meyer, 510
U.S. 471, 477-78 (1994); Dancy v. Dep’t of Army, 897 F. Supp. 612, 614 (D.D.C. 1995) (citing
cases)).

                                                   6
Mitchell’s own admission, the only concrete physical injury—the near-fatal allergic reaction to a

soy diet—occurred in May 2014 while he “was housed in the Federal Bureau of Prisons” at the

federal penitentiary in Florence, Colorado. Compl. ¶ 1. Consequently, his claim does not belong

here.

                “When a plaintiff files an action in the wrong district, 28 U.S.C. § 1406(a) directs

courts ‘to dismiss, or if it be in the interest of justice, transfer such case’ to the proper venue.”

Darby, 231 F. Supp. 2d at 277 (D.D.C. 2002) (quoting 28 U.S.C. § 1406(a)). A transfer would

not be in the interest of justice. Mr. Mitchell has accumulated more than the requisite number of

dismissals under the Prison Litigation Reform Act (“PRLA”) to preclude his filing cases in

federal court in forma pauperis. 5 See Gilbert-Mitchell v. Allred, No. 1:12-cv-1997, 2013 WL

1365781 (D. Colo. Apr. 3, 2013). Because the underlying events occurred in Colorado and Mr.

Mitchell is currently detained here, the imminent danger exception does not apply. See Ibrahim

v. D.C., 463 F.3d 3, 6 (D.C. Cir. 2006) (noting that in deciding the imminent danger question

courts “look to the complaint”). Furthermore, the U.S. District Court for the District of Colorado

has listed six aliases associated with Mr. Mitchell’s name and inmate number and five variations

of his last name used to file cases nationwide. That court concluded “that [Mitchell’s] failure to


5
        The PLRA provides in relevant part:

           In no event shall a prisoner bring a civil action or appeal a judgment in a civil
           action or proceeding under this section if the prisoner has, on 3 or more prior
           occasions, while incarcerated or detained in any facility, brought an action or
           appeal in a court of the United States that was dismissed on the grounds that
           it is frivolous, malicious, or fails to state a claim upon which relief may be
           granted, unless the prisoner is under imminent danger of serious physical
           injury.

28 U.S.C. § 1915(g).

                                                   7
fully disclose his previous lawsuits and three-strikes status, under penalty of perjury, and his

attempt to prosecute this case under a variation of his real name, constitutes an abuse of the

judicial process and fraud on the court.” Gilbert-Mitchell, 2013 WL 1365781, at *2. This Court

noted from the specific language of § 1915(g) that the three-strike provision does not apply to a

prisoner who is before this Court only because a defendant removed his case from state court.

See May 3, 2016 Order at 1 [Dkt. 11]. Nevertheless, the Court may rely on Mr. Mitchell’s

qualifying dismissals under § 1915(g) to conclude that the interest of justice will not be served

by transferring this case to its sister court in Colorado.

                                        IV. CONCLUSION

                Because venue is improper here and a transfer is not in the interest of justice, this

case will be dismissed without prejudice. A memorializing Order accompanies this

Memorandum Opinion.



Date: July 29, 2016                             __________/s/____________
                                                ROSEMARY M. COLLYER
                                                United States District Judge




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