                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    MACEO JONES,

                 Plaintiff,

          v.                                            No. 18-CV-612 (RDM)

    THOMAS KANE, Acting Director of the
    Bureau of Prisons, 1 et al.,

                 Defendants.


                                   MEMORANDUM OPINION

         Plaintiff Maceo Jones, proceeding pro se, brings claims against the Bureau of Prisons

(“BOP”) and fourteen BOP employees for alleged violations of his constitutional rights while he

was incarcerated at two different BOP facilities in West Virginia. Dkt. 1. Although his

complaint is not easy to decipher, Plaintiff appears to raise a litany of claims, including assault,

failure to provide medical care, failure to abide by and to enforce Department of Justice and BOP

procedures, false accusations leading to administrative segregation, denial of his right to freely

exercise his religion, denial of visitation rights, retaliation, and racial bias. See Dkt. 1.

Defendants now move to dismiss Plaintiff’s complaint, Dkt. 1, on several grounds, Dkt. 34. For

the reasons that follow, the Court will DISMISS Plaintiff’s complaint.




1
  Although Michael Carvajal is now the Director of the Federal Bureau of Prisons, Defendant
Kane remains the appropriate defendant for Plaintiff’s individual-capacity claims. Although
Plaintiff states in his complaint that he is bringing suits against the defendants in both their
individual and official capacities, see Dkt. 1 at 2-3, as explained below, Plaintiff does not in fact
bring any claims amenable to suit against the Defendants in their official capacities, see infra
note 4.
                                             I. ANALYSIS

        Defendants offer four different bases on which some or all of Plaintiff’s claims could be

dismissed: (1) Jones’s claims brought under 42 U.S.C. § 1983 fail as a matter of law because

each of the defendants is a federal, rather than state, actor and was acting under color of federal

law; (2) the Court lacks personal jurisdiction over certain defendants; (3) that venue is improper

in this court; and (4) Plaintiff has failed to state a claim, let alone one that clears the high hurdle

of qualified immunity. See Dkt. 34. The Court starts by addressing Plaintiff’s Section 1983

claims before turning to whether Plaintiff has also brought Bivens claims and whether those

claims must be dismissed.

A.       Plaintiff’s Section 1983 Claims

         Plaintiff alleges that he is bringing claims under 42 U.S.C. § 1983 against all

Defendants. Dkt. 1 at 1. He does not contest, however, that those Defendants are all federal

actors. Dkt. 1 at 2-3. Because, as Defendants rightly point out, Dkt. 34 at 8, “Section 1983 does

not apply to federal officials acting under color of federal law,” Settles v. U.S. Parole Comm’n,

429 F.3d 1098, 1104 (D.C. Cir. 2005), Plaintiff’s Section 1983 claims fail as a matter of law.

B.     Plaintiff’s Bivens Claims

        In his opposition to Defendants’ motion to dismiss, Plaintiff states that he intends to bring

claims under both 42 U.S.C. § 1983 and under Bivens v. Six Unknown Agents of Federal Bureau

of Narcotics, 403 U.S. 388, (1971), which provides a cause of action for money damages arising

out of certain alleged constitutional violations by federal agents acting under color of federal

law. The Court must liberally construe pro se pleadings, Erickson v. Pardus, 551 U.S. 89, 94

(2007), and must “consider a pro se litigant’s complaint ‘in light of’ all filings, including filings

responsive to a motion to dismiss,” Brown v. Whole Foods Market Grp., Inc., 789 F.3d 146, 152



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(D.C. Cir. 2015). The Court will, therefore, construe Plaintiff’s complaint to assert Bivens

claims against the Defendants in their individual capacities. But, because “[i]t is well established

that Bivens remedies to not exist against officials sued in their official capacities,” Kim v. United

States, 632 F.3d 713, 715 (D.C. Cir. 2011) (citing Clark v. Library of Cong., 750 F.2d 89, 103

(D.C. Cir. 1984)), the Court will proceed on the understanding that, at most, Plaintiff alleges

claims against the Defendants in their individual capacities.

       Defendants argue that, even if the Plaintiff is bringing Bivens claims against the

Defendants in their individual capacities, that does not save his suit, at least not in this Court

because venue is improper. Dkt. 34 at 14–16. The D.C. Circuit has admonished judges of this

Court to “examine challenges to . . . venue carefully to guard against the danger that a plaintiff

might manufacture venue in the District of Columbia.” Cameron v. Thornburgh, 983 F.2d 253,

256 (D.C. Cir. 1993). One means by which “a plaintiff could bring suit here that properly should

be pursued elsewhere” is by “naming high government officials as defendants,” even though the

actual conduct at the core of plaintiff’s suit occurred outside of Washington, D.C. Id. Thus,

before turning to the venue analysis, the Court will first consider whether the claims against

those “high government officials” are properly asserted. See id. (dismissing claims against

senior government officials before turning to the venue analysis for the remaining claims).

       Defendants move to dismiss the claims against the former Acting BOP Director under

Rule 12(b)(6) on the grounds that Plaintiff has failed to “plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,

556 U.S. at 676. As Defendant rightly points out “Plaintiff . . . make[s] no mention whatsoever




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of the actions the Acting BOP Director . . . undertook.” Dkt. 34 at 23. Accordingly, former

Acting BOP Director Kane is dismissed from the suit. 2

        With Plaintiff’s suit so narrowed, the Court turns to the question whether venue is proper

in this District with respect to Plaintiffs’ claims against the remaining Defendants.’ 3 Although

the Court, in evaluating a motion to dismiss for improper venue, must “accept the plaintiff’s

well-pled factual allegations regarding venue as true” and must “draw[] all reasonable inferences

from those allegations in the plaintiff’s favor,” Chin-Young v. Esper, No. 18-cv-2072, 2019 WL

4247260 at *1 (D.D.C. Sept. 6, 2019), the ultimate burden of establishing that venue is proper

lies with the Plaintiff, id. (citing Varma v. Gutierrez, 421 F. Supp. 2d 110, 113 (D.D.C. 2006)).

Here, Plaintiff has not alleged any facts that would support venue in this District.

        Venue in a Bivens action is governed by 28 U.S.C. § 1391(b). See Gonzalez v. Holder,

763 F. Supp. 2d 145 (D.D.C. 2011) (citing Stafford v. Briggs, 444 U.S. 527, 544 (1980);

Cameron v. Thornburgh, 983 F.2d 253 (D.C. Cir. 1993)). That statute provides that a civil

action may be brought in one of three places: (1) “a judicial district in which any defendant

resides, if all defendants are residents of the State in which the district is located;” (2) “a judicial

district in which a substantial part of the events or omissions giving rise to the claim occurred;”

or (3) “if there is no district in which an action may otherwise be brought as provided in this




2
  Defendants also move to dismiss the allegations against Defendant Dunbar on the grounds that
Plaintiffs complaint contains no allegations concerning her whatsoever. Dkt. 34 at 23. Agreeing
with the Defendants’ characterization of Plaintiffs’ complaint, the Court dismisses Plaintiff’s
complaint against Defendant Dunbar.
3
  Defendants also seek dismissal on personal jurisdiction grounds, but the Court “has leeway ‘to
choose among threshold grounds for denying audience to a case on the merits.’” Sinochem Int’l
Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 584 (1999)).


                                                   4
section, any judicial district in which any defendant is subject to the court's personal jurisdiction

with respect to such action.” 28 U.S.C. § 1391(b).

        Plaintiff does not allege that any of the remaining individual Defendants reside in the

District of Columbia. See Dkt. 1 at 2-3; Dkt. 37 at 5.; see also 28 U.S.C § 1391(c) (defining

“residency” for “natural person[s]” to be “the judicial district in which that person is

domiciled”). Moreover, all of the events in question took place at two BOP institutions located

in West Virginia. See Dkt. 1. Plaintiff points to only two possible bases for venue in the District

of Columbia: his own residence here and the BOP’s location here. Courts in this district have

routinely held, however, that when “the only real connection [the] lawsuit has to the District of

Columbia is that a federal agency headquartered here is charged with generally regulating and

overseeing” the administrative process forming the basis for Plaintiff’s claims, “venue is not

appropriate in the District of Columbia.” E.g., Aftab v. Gonzalez, 597 F. Supp. 2d 76, 81

(D.D.C. 2009) (citing Al-Ahmed v. Chertoff, 564 F. Supp. 2d 16, 19 (D.D.C. 2008)). That

principle applies with particular force in the present context, where Plaintiff has brought Bivens

claims against an array of individuals, none of whom engaged in any relevant conduct in the

District of Columbia.

        Nor does Plaintiff’s residence support venue in this District. For purposes of either a §

1983 or Bivens action, Plaintiff’s own residence is not relevant. See 28 U.S.C. 1391(b). In any

event, Plaintiff is a resident of the state of California because, under the law of this circuit, an

incarcerated person resides “at the place of confinement,” In re Pope, 580 F.2d 620, 622 (D.C.

Cir. 1978) (per curiam); see also Gatlin v. Piscitelli, No. 18-2716, 2020 WL 515882 at *2

(D.D.C. Jan. 31, 2020); Roman-Salgado v. Holder, 730 F. Spp. 2d 126, 130 (D.D.C. 2010), and




                                                   5
he is currently incarcerated in Victorville, California, Dkt. 29. The Court accordingly finds that

venue is not proper in this District.

       Where a case is filed in the wrong district, the Court “shall dismiss, or if it be in the

interest of justice, transfer such case to any district or division in which it could have been

brought.” 28 U.S.C. § 1406(a). The problem for Plaintiff is that it is not apparent from the

papers where, exactly, the Court could transfer all of Plaintiff’s claims. The events alleged in the

complaint took place at FCI Gilmer and FCI McDowell, which are both located in West

Virginia, but are in two different judicial districts—the Northern and Southern Districts of West

Virginia. Dkt. 34 at 3. Thus, there is no district to which the Court could transfer where venue

would be proper under 28 U.S.C. § 1391(b)(2) with respect to all of Plaintiff’s remaining claims.

And, although it is likely that at least one of the remaining individual defendants—all of whom

were employed at prisons in West Virginia—resides in West Virginia for venue purposes such

that venue would be proper under 28 U.S.C. § 1391(b)(1) or (3), the complaint lacks any

allegations that, if accepted as true, would support venue in one of the two West Virginia

districts. Plaintiff is better situated than the Court, in any event, to select which of the two

possible for a is preferable. And, finally, the Court has substantial doubt that the complaint, s

currently drafted, would survive a motion to dismiss brought under Federal Rules of Civil

Procedure 8 and 12(b)(6). Because the interest of justice is unlikely to be served by a transfer

made under these circumstances, the Court concludes that the appropriate course is to dismiss

Plaintiff’s claims for improper venue. Plaintiff may, of course, refile his complaint in whichever

judicial district in West Virginia he concludes is appropriate.




                                                   6
                                     CONCLUSION

      For the foregoing reasons, the Court will GRANT Defendants’ motion to dismiss, Dkt.

34.

      A separate order will issue.


                                                /s/ Randolph D. Moss
                                                RANDOLPH D. MOSS
                                                United States District Judge


Date: February 28, 2020




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