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POLLACK v. MEESE

March 28, 1990

SEYMOUR POLLACK, Plaintiff,
v.
EDWIN A. MEESE, III, ATTORNEY GENERAL, J. MICHAEL QUINLAN, DIRECTOR, FEDERAL BUREAU OF PRISONS, G. C. WILKERSON, REGIONAL DIRECTOR, FEDERAL BUREAU OF PRISONS, and C. A. TURNER, WARDEN, MEDICAL CENTER FOR FEDERAL PRISONERS, Defendants


Stanley S. Harris, United States District Judge.


The opinion of the court was delivered by: HARRIS

This matter is before the Court on the motion to dismiss of defendants Edwin A. Meese, III, J. Michael Quinlan, George Wilkerson, and C.A. Turner, plaintiff's opposition, defendants' reply, and the entire record herein. The Court concludes that this Court does not have personal jurisdiction over the defendants and that the complaint should be dismissed.

 Background

 The following facts are taken from the pro se complaint filed in this case by the plaintiff Seymour Pollack. While incarcerated at the Medical Center for Federal Prisoners in Springfield, Missouri ("Springfield"), plaintiff required the use of a portable oxygen tank because of a chronic lung condition. On November 6, 1987, in accordance with institutional policy, the Unit Manager at Springfield reminded the Medical Unit staff by memorandum that inmates requiring oxygen tanks were permitted to leave the unit only under staff escort. *fn1" On February 22, 1988, the Unit Manager sent out a second memorandum regarding this policy upon learning that inmates with oxygen tanks were moving around unescorted. *fn2" In his complaint, plaintiff alleges that he was prevented from leaving his ward without a staff escort on many occasions which unconstitutionally limited his equal access to fresh air, law library facilities, organization meetings, and religious programs. *fn3"

 Plaintiff filed his complaint on May 20, 1988. Since plaintiff is proceeding in forma pauperis, the U.S. Marshals Office effected service on the various defendants pursuant to Federal Rule of Civil Procedure 4(c)(2)(B)(i). The U.S. Marshals effected service of process on defendants Quinlan, Wilkerson, and Turner by certified mail. *fn4" Service on defendant Meese was effected by certified mail to the U.S. Attorney's Office. The Marshals' returns indicate that service was made on all the defendants.

 Plaintiff has set forth various claims. First, plaintiff seeks declaratory and injunctive relief to remedy the alleged conditions at Springfield. Second, plaintiff seeks monetary damages from officers of Springfield in their official and individual capacities for violations under Bivens and the Rehabilitation Act of 1973. See 29 U.S.C § 791 (1982); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). The defendants argue that plaintiff's claims must be dismissed for several reasons: (1) Venue is improper in the District of Columbia; (2) the Court lacks personal jurisdiction over the defendants; (3) plaintiff has failed to effect proper service on the defendants in their individual or official capacities; and (4) plaintiff's substantive claims are meritless. The Court finds that plaintiff's claim must be dismissed on procedural grounds and thus will not address the merits.

 Discussion

 Plaintiff requests injunctive relief compelling the named defendants to refrain from the disputed actions at Springfield. Subsequent to the filing of this action, plaintiff was transferred to a facility in Texas able to accommodate his health needs without any limitation on activity, and since then he has been released. Therefore, plaintiff's request for injunctive relief is moot. Plaintiff concedes this fact and has voluntarily asked for dismissal of the injunctive portion of his complaint without prejudice. See Consent to Dismiss Plaintiff's Request for Issuance of Injunction, Aug. 17, 1988, at 3. Thus, only plaintiff's claims against the defendants in their individual and official capacities under Bivens and the Rehabilitation Act remain.

 I. Venue

 The applicable venue provision is 28 U.S.C. § 1391(b). Section 1391(b) permits venue only in the judicial district where all the defendants reside, or in which the claim arose. See Naartex Consulting Corp. v. Watt, 232 U.S. App. D.C. 293, 722 F.2d 779, 789 (D.C. Cir. 1983). Pursuant to the requirements of § 1391(b), venue in the District of Columbia is improper. First, none of the defendants resides in the District of Columbia. Second, all the actions underlying plaintiff's claims occurred in Missouri. *fn5" Thus, plaintiff's alleged injury and the operative facts creating his claims occurred in Missouri and not in the District of Columbia. See id. at 789. Since none of the individual defendants resides in the District of Columbia, and the alleged offenses did not arise in the District of Columbia, proper venue in this district cannot be established under § 1391(b).

 Furthermore, plaintiff's suggestion that proper venue may be established pursuant to 28 U.S.C. § 1391(e) must be rejected. *fn6" This section does not come into operation when an action is brought for money damages against federal officials in their individual capacities. See Stafford v. Briggs, 444 U.S. 527, 544, 63 L. Ed. 2d 1, 100 S. Ct. 774 (1980); Relf v. Gasch, 167 U.S. App. D.C. 238, 511 F.2d 804, 807 n.15 (D.C. Cir. 1975). Here, a money judgment is sought against the defendants as individuals and not against the government. Accordingly, service on the defendants cannot be established under § 1391(e) and the individual claims must be dismissed.

 II. Personal Jurisdiction

 This Court may only assert personal jurisdiction over the defendants if permitted under District of Columbia law. See Crane v. Carr, 259 U.S. App. D.C. 229, 814 F.2d 758, 762 (D.C. Cir. 1987). Moreover, plaintiff bears the burden of pleading and proving sufficient facts upon which to find personal jurisdiction. Security Bank N.A. v. Tauber, 347 F. Supp. 511, 513 (D.D.C. 1972). D.C. Code § 13-422 provides the bases for personal jurisdiction over residents or those incorporated in the District of Columbia. It allows a District of Columbia court to:

 
. . . exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in the ...

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