                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_____________________________________
                                      )
ROY STEVE DAVIS,                      )
                                      )
            Plaintiff,                )
                                      )
            v.                        )              Civil Action No. 08-452 (CKK)
                                      )
MICHAEL MUKASEY, et al.,              )
                                      )
            Defendants.               )
_____________________________________ )


                                 MEMORANDUM OPINION

       Plaintiff Roy Steve Davis, a prisoner incarcerated under federal sentence, filed an

amended pro se complaint under Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971), naming as defendants the former United States Attorney General

Michael Mukasey, the Federal Bureau of Prisons (“BOP”) and its Director, Harley G. Lappin,

United States Penitentiary (“USP”) Lee Warden Terry O’Brien and Officer R. Sizemore, and

Federal Correctional Institution (“FCI”) Gilmer employees Joyce Francis, M. Veltri, and D.

Smith. The defendants have filed a motion to dismiss for lack of subject matter jurisdiction, for

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

relief may be granted. Davis, having been advised that failure to respond to the defendants’

motion could result in the case being dismissed, filed a “Motion To Continue Summary

Judgment” that will be construed as an opposition.1 The plaintiff has also filed a “Motion to



       1
          Despite its unconventional title, the “Motion to Continue Summary Judgment” presents
factual and legal arguments in opposition to the defendants’ dispositive motion, asks that
discovery be allowed prior to disposition, and in all substantive respects is an opposition.
Compel Government to Affirm or Deny Existence of Electronic Surveillance” and his third

motion for appointed counsel. For the reasons stated, the complaint will be construed to assert a

claim under the Federal Tort Claims Act and, in the interests of justice, the case will be

transferred to the United States District Court for the Western District of Virginia to cure a venue

defect. The defendants’ motion to dismiss will be granted to the extent that all constitutional

claims will be dismissed either as barred by sovereign immunity or as not properly exhausted,

and will be denied in the remainder. Ruling on the plaintiff’s motions to compel and for

appointed counsel will be left to the transferee court.

                                        I. BACKGROUND

       The amended complaint alleges that while Davis was confined at FCI Gilmer, a medium

security facility, BOP employees Francis, Veltri and Smith arranged to transfer him to USP Lee,

a high-security facility, in retaliation for filing numerous grievances about prison conditions. It

further alleges that the transfer was arranged in the knowledge that the murderer of Davis’s two

sons was incarcerated at USP Lee. Am. Compl. ¶¶ 2-3. On October 19, 2007, three days after he

had arrived at USP Lee, Davis was assaulted by three other inmates, including the murderer of

his two sons, who had gained allegedly unauthorized access to the unit where Davis was housed.

Id. ¶¶ 4-6. Davis, who feared for his life, was scalded with a hot liquid and beaten with fists and

feet. He sustained burns to his neck and shoulder, a bloody nose, and bruises. Id. ¶ 5 & Att. 1

at 3-5. The amended complaint alleges that the inmates who assaulted Davis were able to gain

unauthorized access to his unit due to Sizemore’s inattention and/or prison understaffing. Id. ¶ 5.

In addition, it alleges that prison staff failed to intervene as soon as they could have or should

have to stop the assault. Id. ¶ 6. BOP records show that Davis exhausted his available BOP


                                                 -2-
administrative remedies with respect to the assault. See Defendants’ Motion to Dismiss (“Defs.’

Mot.”), Declaration of Rina Desai (Feb. 18, 2009) (“Desai Decl.”) ¶ 7 (acknowledging that Davis

exhausted his administrative remedies regarding prison staff witnessing the assault without

promptly intervening). Public records also show that Davis administratively exhausted a claim

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., which was denied by

letter dated February 20, 2008. See Desai Decl., Att. F at 3 (letter dated February 20, 2008,

denying Davis’s FTCA claim and advising that he had six months to file a civil action). Within

two weeks of receiving notice that his FTCA claim had been denied, Davis initiated this civil

action. See Compl. at 1 (showing date-stamp receipt for March 4, 2008 ).

        Davis’s original complaint was sufficiently unclear that the Court required him to file an

amended complaint. The amended complaint invokes Bivens and asserts violations of his First

and Eighth Amendment protections. See Am. Compl. at 1, 2, 7. Davis seeks “compensatory

damages” for injuries and mental anguish, presumably related to the assault and/or the dangerous

prison environment, an order assigning him to a low security prison camp,2 and “declaratory

relief due to the [BOP] provisions of not providing identification of assailants [and] unsafe

conditions . . . .” Id. at 8. Davis has repeatedly asked for court-appointed counsel to assist with

this litigation.

        Defendants argue that the constitutional claims against the BOP and all other defendants

in their official capacity are barred by sovereign immunity, and have moved under Rule 12(b)(1)

to dismiss the BOP and the official-capacity defendants. They have moved under Rule 12(b)(2)


        2
         Although he was incarcerated at USP Lee when he filed this action, he has since been
moved first to FCI Schuykill, a medium security facility, and subsequently to USP Big Sandy, a
high security facility.

                                                -3-
to dismiss all personal-capacity defendants except Mukasey and Lappin for lack of personal

jurisdiction. They have also moved under Rule 12(b)(6) to dismiss the retaliatory transfer claim

and the general overcrowding claims because Davis did not exhaust his administrative remedies

with respect to those claims. In addition, they argue that a Bivens action cannot be maintained

against Mukasey and Lappin on a theory of respondeat superior. Finally, they argue that the

claims against Sizemore must also be dismissed because the complaint does not contain factual

allegations that support an Eighth Amendment claim against him.

                                          II. DISCUSSION

       To survive a motion to dismiss, a complaint must allege “enough facts to state a claim for

relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and

to show that the pleader is entitled to relief, id. at 557. The court is obligated to construe the

factual allegations in the complaint in the light most favorable to the plaintiff, including

reasonable inferences derived from the factual allegations. Barr v. Clinton, 370 F.3d 1196, 1199

(D.C. Cir. 2004). The court’s favorable construction does not extend, however, to inferences or

to conclusory allegations that are unsupported by the facts alleged in the complaint. Kowal v.

MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). At the same time, a pro se

complaint, “however inartfully pleaded,” must be accorded liberal construction. Haines v.

Kerner, 404 U.S. 519, 520 (1972). Consideration of supplemental materials to clarify the claims

in a pro se complaint, particularly documents in the public record in administrative proceedings,

does not require the Court to convert a motion to dismiss to a motion for summary judgment.

Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007); Marshall County Health Care Auth.

v. Shalala, 988 F.2d 1221, 1226 n.6 (D.C. Cir. 1993) (stating that matters of public record may


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be examined on a Rule 12(b)(6) review); Anyanwutaku v. Moore, 151 F.3d 1053 (D.C. Cir. 1998)

(taking account of a later-filed addendum to clarify the pro se complaint).

       A liberal construction of the amended complaint reveals five claims against one or more

of the defendants in this case. One is the Eighth Amendment claim against USP Lee Warden

O’Brien and Officer Sizemore for injuries the plaintiff sustained while unnamed prison staff

allegedly watched but did not intervene promptly when Davis was assaulted by other inmates on

October 19, 2007 at USP Lee in Jonesville, Virginia.3 The Court construes a second claim

arising from this assault. This civil action followed immediately upon Davis learning that his

FTCA administrative claim had been denied and that he had six months to file a civil action on

the FTCA claim. Therefore, the amended complaint will be construed to assert an FTCA claim

for negligence arising from the assault and injuries Davis incurred on October 19, 2007, in

addition to the Bivens Eighth Amendment claim based on the assault.

       The amended complaint can be read fairly to assert a third claim against O’Brien and

Lappin for allegedly permitting general overcrowding at USP Lee, which allegedly culminated in

the assault on the plaintiff in violation of Davis’s Eighth Amendment protections. Id. ¶¶ 5, 7, 10.

As a fourth claim, the amended complaint asserts that Davis’s First Amendment rights were

violated when his transfer from a medium security prison, FCI Gilmer, to a high-security prison,

USP Lee, was orchestrated by FCI Gilmer employees Francis, Veltri and Smith in retaliation for

filing administrative grievances. Id. ¶¶ 2, 8, 9. As a fifth claim, it alleges that the former U.S.




       3
         Although the first complaint included “Unknown BOP persons” as defendants, see
Complaint at 1, the amended complaint does not appear to include the unknown prison staff as
defendants.

                                                 -5-
Attorney General’s failure to prosecute unidentified persons helped to create prison conditions so

dangerous to Davis that it violated his Eighth Amendment rights. Id. ¶ 11.

A. The United States Defendants

       An official-capacity suit against an agency or agent of the federal government is the

equivalent of a suit against the United States of America. Kentucky v. Graham, 473 U.S. 159,

165-66 (1985). The United States of America may be sued only insofar as it consents to suit. In

all other cases, the federal government enjoys sovereign immunity from suit. FDIC v. Meyer,

510 U.S. 471, 475 (1994). The United States of America has not consented to suit for

constitutional violations, and therefore, this Court does not have subject matter jurisdiction to

entertain a suit for constitutional violations against the BOP or any defendant named in his or her

official capacity. Accordingly, the constitutional claims against the BOP and all official-capacity

defendants will be dismissed for lack of subject matter jurisdiction.

       In contrast, Congress has expressly consented to allow suit against the United States of

America under the FTCA. Accordingly, the United States of America will be substituted for the

BOP as a defendant on the FTCA claim. Because there are special venue provisions attendant to

an FTCA claim, in the interest of justice, 28 U.S.C. § 1406(a), this action will be transferred to

the United States District Court for the Western District of Virginia, where venue is proper for an

FTCA claim arising from the events at USP Lee. 28 USC § 1402(b).

B. The Personal-Capacity Defendants

       A Bivens action may be maintained against a federal officer only in his personal capacity.

Kim v. United States, 618 F. Supp. 2d 31, 37 (D.D.C. 2009) (“Bivens actions may only be

brought against federal officials in their personal capacity[.]”) (citing FDIC v. Meyer, 510 U.S. at


                                                -6-
486; Drake v. FAA, 291 F.3d 59, 72 (D.C. Cir. 2002)). Prisoners’ claims supporting Bivens

actions, however, must first be exhausted administratively. Porter v. Nussle, 534 U.S. 516, 524

(2002). The Prison Litigation Reform Act (“PLRA”) provides that

       [n]o action shall be brought with respect to prison conditions under [42 U.S.C.]
       section 1983 . . . , or any other Federal law, by a prisoner confined in any jail,
       prison, or other correctional facility until such administrative remedies as are
       available are exhausted.

28 U.S.C. § 1997e. The Supreme Court has interpreted the term “prison conditions” broadly,

holding “that the PLRA’s exhaustion requirement applies to all inmate suits about prison life,

whether they involve general circumstances or particular episodes, and whether they allege

excessive force or some other wrong.” Porter v. Nussle, 534 U.S. at 532. Davis’s constitutional

claims brought in this action are about “prison life,” and therefore cannot be maintained unless

they have been administratively exhausted.

       It is undisputed on this record that the BOP maintains an administrative remedy process

that was available to Davis and that, prior to initiating this action, Davis did not exhaust any

claim supporting the constitutional claims he asserts in his amended complaint. Specifically, he

initiated but did not exhaust his claim for retaliatory transfer, and he never initiated any claim for

overcrowding at USP Lee or for dangerous prison conditions arising from Mukasey’s failure to

prosecute. See Desai Decl. ¶¶ 2-9. Although he initiated an administrative complaint regarding

the October 19, 2007, assault, it was still pending — unexhausted — at the time he filed this civil

action. Id. ¶ 7 & Att. I.; Defs.’ Mot. at 16. Therefore, all the plaintiff’s Bivens claims must be

dismissed for failure to state a claim upon which relief may be granted. See Woodford v. Ngo,

548 U.S. 81, 101 (2006) (stating that “the PLRA exhaustion requirement is not jurisdictional”);

Hidalgo v. FBI, 344 F.3d 1256, 1258-60 (D.C. Cir. 2003) (teaching that a plaintiff who has not

                                                 -7-
exhausted his non-jurisdictional administrative remedies has failed to state a claim upon which

relief may be granted). Moreover, with one exception, Davis either did not timely initiate an

administrative grievance or timely file an appeal of a denial, see 28 C.F.R. §§ 542.14(a),

542.15(a) (specifying the deadlines applicable to filing the grievance and appeals), and he is now

a foreclosed from doing so; therefore, these three unexhausted claims will be dismissed with

prejudice. The one exception is the Eighth Amendment assault claim, because Davis’s

administrative claim was still pending at the time he initiated this action. Accordingly, the

Eighth Amendment claim arising from the assault will be dismissed without prejudice and, upon

proper exhaustion, Davis will be free to re-file a civil action based on that claim.4

                                        III. CONCLUSION

       Because the plaintiff’s constitutional claims are either barred by sovereign immunity or

fail because the plaintiff did not exhaust all of his available administrative remedies, they will be

dismissed. Because this Court is not the proper venue for the construed FTCA claim, the case

will be transferred to the court where venue is proper. A separate order accompanies this

memorandum opinion.


       4
          The defendants also argue that the personal-capacity claims are subject to dismissal
because none of the defendants in this case have been served in his or her personal capacity, and
therefore this Court does not have personal jurisdiction over any of the personal-capacity
defendants. See Fed. R. Civ. P. 12(b)(2). They also argue that venue in this Court is improper,
subjecting the case to dismissal on that ground. See 28 U.S.C. § 1391; Fed. R. Civ.P. 12(b)(3).
Defendants are correct on both accounts. Nonetheless, because both improper venue and lack of
personal jurisdiction are defects subject to cure, and because the Court has determined, in the
interest of justice, to transfer the case to cure the venue defect, it is possible that the transferee
court will eventually obtain personal jurisdiction of the personal-capacity defendants.
Accordingly, the defendants’ argument regarding lack of personal jurisdiction does not serve as a
basis for this Court’s decision. Furthermore, this Court expressly does not reach the defendants’
substantive argument that the Eighth Amendment assault claim fails to state a claim upon which
relief may be granted, or that the defendants are entitled to qualified immunity on these facts.

                                                 -8-
                                       /s/
                                 COLLEEN KOLLAR-KOTELLY
Dated: November 16, 2009         United States District Judge




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