and sues the two named individual defendants because of their supervisory positions. It is established law, however, that a constitutional tort action may be brought only against those personally responsible for the wrongs, and not against others on the theory of respondeat superior. See McClam v. Barry, 225 U.S. App. D.C. 124, 697 F.2d 366, 368 (D.C. Cir. 1983); Tarpley v. Greene, 221 U.S. App. D.C. 227, 684 F.2d 1, 9-11 (D.C. Cir. 1982); see also James v. Golden, C.A. 85-0739, Memorandum at 6 (D.D.C. Feb. 25, 1986).
In response to defendants' motion to dismiss, plaintiff asserts for the first time that he notified defendants of his mistreatment in two letters, copies of which are attached to an accompanying affidavit. The letters are handwritten, are dated August 18, 1985 and September 5, 1985, and are addressed to defendant O'Brien and defendant Carlson, respectively. In his affidavit, plaintiff repeatedly refers to the events described in the letters as occurring in 1986. More important, in the body of the September 5 letter, purportedly written in 1985, plaintiff complains that he has "not seen a doctor about my condition since July 12, 1986." (Emphasis added.) It is incomprehensible that a person writing by hand in September 1985 could mistakenly refer to the year as 1986. Compare Reply to Defendants Carlson's and O'Brien's Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss (filed December 5, 1986). Furthermore, defendants have submitted an affidavit stating that a diligent search has failed to locate the original copies of these letters in any of the files in which they might be found. Declaration of Doris Page at para. 3, in Defendants Carlson's and O'Brien's Reply to Plaintiffs Opposition to Defendants Motion to Dismiss (filed November 14, 1986). Under the circumstances, it is patent that these letters were composed recently for the purpose of litigation and are not credible. Treating defendants' motion to dismiss as a motion for summary judgment,
these letters do not constitute "sufficient evidence . . . for a jury to return a verdict for [plaintiff]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Accordingly, these letters do not preclude a grant of summary judgment on defendants' behalf. See Anderson, supra; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Whitaker v. Coleman, 115 F.2d 305, 306 (5th Cir. 1940); 6 J. Moore, Moore's Federal Practice § 56.15 at 56-521 (2d ed. 1985).
Plaintiff has not credibly suggested that defendants were aware of plaintiff's alleged mistreatment, or that their failure to know or correct that mistreatment constituted an actionable breach of duty to him under the eighth amendment to the Constitution. Under these circumstances, the claims against the individual defendants cannot stand. See Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).
Furthermore, even if these individuals were proper defendants, venue would not lie in this Court. Under 28 U.S.C. § 1391(b), plaintiff's claim may be brought only in the district where all defendants reside or the claim arose. See Stafford v. Briggs, 444 U.S. 527, 63 L. Ed. 2d 1, 100 S. Ct. 774 (1980). As stated above, the claim arose in Kansas. In addition, defendant O'Brien resides in Kansas. Thus, venue is not proper here.
Plaintiff's claim for monetary relief against the United States must be dismissed because the United States retains its sovereign immunity from claims for damages arising from the alleged constitutional torts of its employees.
With regard to plaintiff's claim for injunctive relief, considerations of justice and convenience to the parties require that it be transferred to the United States District Court for the Southern District of Illinois pursuant to 28 U.S.C. § 1404(a). Plaintiff and his medical records are in Illinois, and the relief, if any, would be furnished there as well. There is no similar interest in having these proceedings in the District of Columbia. Venue is proper in Illinois because plaintiff presently resides there. 28 U.S.C. § 1391(e).
An appropriate Order will issue.
Louis F. Oberdorfer, UNITED STATES DISTRICT JUDGE
For reasons stated in an accompanying Memorandum, it is this 30th day of January, 1987, hereby
ORDERED: that plaintiff's claims under the Federal Tort Claims Act should be, and hereby are, DISMISSED; and it is further
ORDERED: that plaintiff's claims against defendants Carlson and O'Brien should be, and hereby are, DISMISSED; and it is further
ORDERED: that plaintiff's action for monetary relief against the United States should be, and hereby is, DISMISSED; and it is further
ORDERED: that plaintiff's action for injunctive relief against the United States should be, and hereby is, TRANSFERRED to the United States District Court for the Southern District of Illinois, pursuant to 28 U.S.C. § 1404(a).
Louis F. Oberdorfer, UNITED STATES DISTRICT JUDGE