                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

Ralph Thomas,                          :
                                       :
               Plaintiff,              :
       v.                              :               Civil Action No. 09-2327 (CKK)
                                       :
United States of America et al.,       :
                                       :
               Defendants.             :



                                   MEMORANDUM OPINION

       In this civil action filed pro se, plaintiff, a federal prisoner confined at the Federal

Correctional Complex (“FCC”) in Terre Haute, Indiana, claims that he has been deprived of

adequate medical treatment because of “a long-standing custom or usage of the United States of

America . . . .” Complaint for the Deprivation of Constitutional Rights Pursuant to Title 28

U.S.C. § 1331 (“Compl.”) at 2. He sues the United States, the Federal Bureau of Prisons

(“BOP”), and BOP’s Administrator of National Inmate Appeals Harrell Watts for alleged

violations of the Eighth Amendment. Plaintiff seeks monetary damages and equitable relief.

Defendants move to dismiss the complaint pursuant to Rules 12(b)(1), (b)(2), (b)(4), (b)(5) and

(b)(6) of the Federal Rules of Civil Procedure. See Mem. of P. & A. in Supp. of Defs.’ Mot. to

Dismiss (“Defs.’s Mem.”) [Dkt. # 22] at 1.

       Upon consideration of the parties’ submissions, the Court will grant the motion to dismiss

the damages claim against the United States under Rule 12(b)(1) for lack of subject matter

jurisdiction, grant the motion to dismiss the claim against Watts in his personal capacity under

Rule 12(b)(6) for failure to state a claim, and permit plaintiff to show cause why the surviving

claims for injunctive and declaratory relief should not be transferred to the Southern District of
Indiana. In light of this disposition, the Court will not address the remaining grounds for

dismissal based on alleged deficiencies in serving Watts personally with process.1

                                       I. BACKGROUND

       The allegations of the complaint are as follows. Plaintiff is a 76-year-old diabetic who

“suffers from renal insufficiency.” Compl. at 4. In December 2008, he sought treatment for

“severe cramps all over his body” that were “debilitating.” Id. at 4-5. A Unit Officer called

Health Services, but a Physician’s Assistant, who initially agreed to evaluate and treat plaintiff,

allegedly left before seeing plaintiff. Id. at 5. He “refused to even evaluate Thomas, let alone

treat his concerns.” Id. at 6. Plaintiff’s visit to Health Services allegedly occurred on a Friday

afternoon before a holiday weekend; thus, he “was forced to suffer without treatment for

approximately 96 hours.” Id. at 5. In responding to plaintiff’s administrative appeal of the

denial of his grievance about the lack of medical care, defendant Watts allegedly “falsified an

official Government document when he claimed” in July 2009 that plaintiff’s medical records

revealed that he had been treated for his cramps. Id. at 7; see Compl. Attach. at 29 (Response to

Administrative Remedy (“Admin. Resp.”)).

       In the instant complaint lodged on December 8, 2009, plaintiff claims that he “does not

have a difference of opinion with FCC Medical Staff on what kind of treatment he should

receive,” Compl. at 6, but rather he disagrees “with FCC Terre Haute Medical Staff on the claim



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          Because plaintiff is proceeding in forma pauperis, the Court would not grant
defendants’ motion to dismiss the complaint against Watts based on insufficient personal service,
see Defs.’s Mem. at 7-8, without first giving plaintiff the opportunity to provide additional
information for the court officers to attempt proper service. See 28 U.S.C. § 1915(d) (obligating
“[t]he officers of the court [to] serve all process, and perform all duties in [IFP] cases.”).


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that he has received ANY TREATMENT for his condition.” Id. (emphasis in original). He also

claims that the delay in medical treatment violated BOP policy permitting same-day treatment for

urgent medical needs. Id. at 5-6. Plaintiff seeks an unspecified amount of monetary damages, as

well as declaratory and injunctive relief. Id. at 12.

                                        II. DISCUSSION

       1. Subject Matter Jurisdiction

       Defendants move to dismiss under Rule 12(b)(1) on the ground that sovereign immunity

bars plaintiff’s Eighth Amendment claim for damages against the United States, BOP and Watts

in his official capacity. Defs.’ Mem. at 4-5. The claim against Watts in his official capacity is

equivalent to a claim against the United States. See Kentucky v. Graham, 473 U.S. 159, 165-66

(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, 463 U.S. 206, 212 (1983).

Such consent may not be implied, but must be “unequivocally expressed.” United States v.

Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). The Federal Tort Claims Act (“FTCA”) waives

the United States' immunity as to certain common law torts, see 28 U.S.C. §§ 1346(b)(1),

2679(b), but not constitutional tort claims, see FDIC v. Meyer, 510 U.S. 471, 478 (1994); Clark

v. Library of Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984). Therefore, the Court will grant

defendants’ motion to dismiss the constitutional claim for damages against the United States,

BOP and Watts in his official capacity under Rule 12(b)(1) for lack of subject matter jurisdiction.

       2. Failure to State a Claim Against Watts

       Defendants move under Rule 12(b)(6) to dismiss the constitutional claim against Watts in

his individual capacity, arguing, inter alia, that it is based on an impermissible theory of


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respondeat superior. Defs.’ Mem. at 8-10. In Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), 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. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). To be held liable,

however, the official must have participated personally in the alleged wrongdoing. Liability

cannot be based on a theory of vicarious liability, Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct.

1937, 1948 (2009) (“vicarious liability is inapplicable to Bivens . . . suits”), or a theory of

respondeat superior. Id.; see Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993)

(concluding that a complaint 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. Att’y Gen., 575 F. Supp. 2d 232, 239

(D.D.C. 2008) (“A superior official cannot be held liable under . . . 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.”) (citing Marshall v. Reno, 915 F. Supp. 426,

429-30 (D.D.C. 1996)).

        In his one-page response to plaintiff’s appeal to BOP’s Central Office, Watts stated that

“[r]elevant portions of [plaintiff’s] medical record have been reviewed which reveal you have

received treatment for your complaints of body cramps.” Admin. Resp. Watts explained that the

medical record showed that plaintiff was “evaluated, prescribed appropriate medication, and

provided education regarding treatment of [his] condition,” and that “the record reflects you are

receiving medical care and treatment in accordance with Bureau policy.” Id. Plaintiff alleges

that Watts “falsified an official Government document” Compl. at 7, but he does not state in


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what way. Furthermore, the claim against Watts, predicated only on his issuance of an adverse

decision on plaintiff’s administrative appeal, does not establish the requisite personal

involvement of Watts in any decisions about plaintiff’s medical care. Watts therefore cannot be

held liable under Bivens for the alleged acts or omissions of medical staff at FCC Terre Haute.

See Gonzalez v. Holder, — F. Supp. 2d —, 2011 WL 44210, at * 4 (D.D.C., Feb. 8, 2011) (“[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.”) (citing cases).

        3. Plaintiff’s Claim for Injunctive Relief

        Plaintiff does not state what type of injunctive relief is sought, but it is presumed that he

seeks to compel prison officials at FCC Terre Haute to provide adequate medical treatment for

his chronic ailments. This claim brought directly under the Eighth Amendment is not foreclosed.

See Corr. Servs. Corp., 534 U.S. at 74 (recognizing that a lawsuit for “injunctive relief has long

been recognized as the proper means for preventing entities from acting unconstitutionally.”);

Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (concluding that “deliberate indifference to

serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ . .

. proscribed by the Eighth Amendment. This is true whether the indifference is manifested by

prison doctors in their response to the prisoner's needs or by prison guards in intentionally

denying or delaying access to medical care or intentionally interfering with the treatment once

prescribed.”) (citations and footnotes omitted). Because plaintiff genuinely disputes that he has

received proper treatment for his ailments, the Court cannot conclude based only on defendants’

argument, see Defs.’ Mem. at 10-11, that plaintiff has stated no Eighth Amendment claim for

injunctive relief.


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       Nevertheless, this venue is not a convenient forum for litigating plaintiff’s disputes with

prison officials in Terre Haute about his medical care. Under 28 U.S.C. § 1404(a), the Court

may transfer a case in the interest of justice “for the convenience of parties and witnesses . . . to

any other district . . . where it might have been brought.” In doing so, the Court considers such

factors as (1) the difficulty of transporting the prisoner for court proceedings, (2) the availability

of witnesses and files, (3) the speed of resolution of the case, and (4) whether the case involves

issues of national policy. Starnes v. McGuire, 512 F.2d 918, 929-33 (D.C. Cir. 1974).

       The Court does not have sufficient information to address the speed of resolution, and

although plaintiff claims that the alleged deprivation is because of “a long-standing custom or

usage of the United States of America,” Compl. at 2, he has not described any such behavior

emanating from BOP headquarters to invoke national policy. Thus, factors three and four are

negligible to the Court’s analysis. The remaining two factors, however, weigh heavily in favor of

transferring the case to the judicial district of plaintiff’s confinement where the pertinent

witnesses and files are located and where plaintiff’s transport to court, if required, would be far

less taxing and costly. However, “before ordering transfer[,] the judge should, at minimum, issue

an order to show cause why the case should not be transferred, and thereby afford the parties an

opportunity to state their reasons for believing that this forum is most convenient or that the

proposed alternative forum is inconvenient or not within the ambit of § 1404(a).” Starnes, 512

F.2d at 934. Although the Court finds it in the interests of justice to transfer what is left of this

case to the Southern District of Indiana, it will permit plaintiff time to respond.




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                                       III. CONCLUSION

       For the foregoing reasons, the Court grants defendants’ motion to dismiss the damages

claim against the United States, BOP and Watts in his official capacity under Rule 12(b)(1), and

grants their motion to dismiss the Bivens claim against Watts in his personal capacity under Rule

12(b)(6). The Court finds it in the interests of justice to transfer the remaining claims for

injunctive and declaratory relief to the United States District Court for the Southern District of

Indiana, but will defer such action pending plaintiff’s response or the expiration of the deadline

for him to respond. A separate Order accompanies this Memorandum Opinion.



                                               __________s/s__________________
                                               COLLEEN KOLLAR-KOTELLY
                                               United States District Judge
DATE: April 29, 2011




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