The opinion of the court was delivered by: Reggie B. Walton, United States District Judge.
Plaintiff Jabari Zakiya has filed this action pursuant to the Federal Torts Claim Act and Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against the United States and several former and current federal officials.*fn1 In essence, plaintiff alleges that agents of the Federal Bureau of Prisons ("BOP") violated his constitutional rights by keeping him imprisoned three years beyond his judicially imposed sentence based upon his refusal to sign an Installment Schedule Agreement for Unpaid Fines, which he purportedly was told was a condition of his release pursuant to 18 U.S.C. § 3624(e). The defendants have filed a Motion to Dismiss or, in the Alternative, Transfer [#8]. For the reasons set forth below, the Court will grant defendants' motion in part, and will dismiss certain claims and transfer plaintiff's remaining claims to the United States District Court for the Northern District of West Virginia.
The predicate for plaintiff's incarceration which is the subject of this lawsuit, was his failure to pay his federal taxes. As a result, he was convicted for tax evasion and the willful failure to file tax returns. Compl. ¶ 12.*fn2 On February 18, 1994, Mr. Zakiya was sentenced to a term of imprisonment of sixteen months, which commenced on January 4, 1995, and was to conclude on May 1, 1996. Id. ¶ 13. In addition to his incarceration, Mr. Zakiya was assessed a fine of $25,000, a $200 special assessment fee, and ordered to serve three years on supervised release at the conclusion of his prison sentence. Id. ¶ 14. Mr. Zakiya surrendered himself to the Federal Correctional Institution ("FCI") located at Morgantown ("FCI Morgantown"), a minimum security prison located in West Virginia on January 4, 1995. Id. ¶ 15. According to his complaint, he was essentially a model prisoner, and due to"good-time credit" his sentence was"commuted by sixty-two days" making his new release date no later than February 29, 1996. Id. ¶ 16.
Problems regarding plaintiff's relationship with the BOP commenced on February 27, 1996, when plaintiff was summoned to the office of Terri Gosnell, Supervisor of Input-Output Processing at FCI Morgantown, in preparation for his impending release. At that time, Ms. Gosnell presented a document to Mr. Zakiya that was described as an"Installment Schedule for Unpaid Fines," which was given to him"as part of the Inmate Financial Responsibility Program" ("IFRP"). Id. ¶ 21. Ms. Gosnell informed Mr. Zakiya that he had to sign the installment payment form as"a condition of his release pursuant to and as provided by 18 U.S.C. § 3624(e)."*fn3 Id. ¶ 22. Mr. Zakiya refused to sign the installment payment form stating that he"had no legal obligation" to sign the form. Id. ¶ 23. Plaintiff's refusal started the events that form the nucleus of this lawsuit.*fn4 The operative events culminated on May 4, 1999, when, after filing several habeas corpus petitions, Mr. Zakiya's immediate release was ordered by a judge of the United States District Court for the Eastern District of Virginia. Id. ¶ 45. Mr. Zakiya was then released on May 5, 1999, three years after his originally scheduled release date of May 1, 1996. Id. ¶ 46.
On March 6, 2002, Mr. Zakiya filed his complaint in this case. He is asserting claims against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680 (2000); 5 U.S.C. § 301 (2000);*fn5 18 U.S.C. § 3621 (2000),*fn6 and claims against former and current officials of the United States government in their individual capacities pursuant to Bivens, 403 U.S. at 388,*fn7 for wrongful imprisonment (count one); negligenceloss of property (count two); personal injury (count three); retaliation (count four); deprivation of liberty-wrongful imprisonment (count five); cruel and unusual punishment (count six); and denial of his rights to substantive and procedural due process, to counsel, and to a trial by jury (count seven).*fn8 He seeks $100 million dollars in total recovery.*fn9
II. The Defendants' Motion to Dismiss
The defendants have filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3), (4), (5), and (6), which, if granted, would dispose of plaintiff's complaint in total.*fn10 The Court will address defendants' arguments separately.*fn11
A. The Court Lacks Personal Jurisdiction over Defendants William J. Thompson, B.A. Bledsoe, and Steven M. Dewalt.
Defendants Thompson, Bledsoe and Dewalt seek dismissal of the complaint as it pertains to them pursuant to Federal Rule of Civil Procedure 12(b)(2) on the grounds that this Court does not have personal jurisdiction over them. Defendants' Memorandum in Support of Defendants' Motion to Dismiss or, in the Alternative, to Transfer ("Defs.' Mem.") at 10. Defendants argue, based upon the caption of plaintiff's complaint, that defendants Thompson and Bledsoe were, at all times relevant to this matter, wardens at the FCI in Morgantown, West Virginia, and that defendant Dewalt was the warden at the FCI in Petersburg, Virginia. Id. In the absence of any allegations that these defendants"have ever resided in the District of Columbia, or worked here at any time relevant to this case[,]" defendants argue that this Court cannot exercise personal jurisdiction over them because the District of Columbia long-arm statute would not permit the Court to do so. Id. In opposition, plaintiff argues that the Court may properly exercise personal jurisdiction over defendants Thompson, Bledsoe and Dewalt because they"are federal officers, and agents of the BOP, which is headquartered in the District of Columbia." Plaintiff's Memorandum of Points and Authorities in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss ("Pl.'s Opp'n") at 8.*fn12 Furthermore, plaintiff argues,"reading... the complaint in the light most favorable to the plaintiff, suggest[s] that these individually named defendants, under authority from the BOP, engaged in tortious conduct in the District of Columbia. Clearly, [the plaintiff contends,] the BOP transacts business in the District of Columbia, and does so through its agents." Id. (citing D.C. Code 13-423(a)(1)-(4) (2001))."On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing a factual basis for the court's exercise of personal jurisdiction over the defendant." Bancoult v. McNamara, No. Civ.A. 01-2629, 2003 WL 1469454, at *4 (D.D.C. Mar. 10, 2003) (citing Crane v. New York Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990)). The plaintiff has the burden of"alleging specific acts connecting the defendant with the forum..." United States v. Phillip Morris, Inc., 116 F. Supp. 2d 116, 121 (D.D.C. 2000). Personal jurisdiction over non-resident defendants may only be exercised in this jurisdiction pursuant to the District of Columbia's long-arm statute. Risley v. Hawk, 918 F. Supp. 18, 23 (D.D.C. 1996), aff'd 108 F.3d 1396 (D.C. Cir. 1997). To determine whether this Court may exercise personal jurisdiction over the nonresident defendants, it must conduct a two part inquiry, which entails (1)"examin[ing] whether jurisdiction is applicable under the state's long-arm statute [and (2)]... determin[ing] whether a finding of jurisdiction satisfies the constitutional requirements of due process." GTE New Media Services, Inc. v. Bellsouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000) (citing United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995)). The District of Columbia long-arm statute, D.C. Code § 13-423(a) (2000), provides that personal jurisdiction may be exercised over a person, who acts directly or by an agent, as to a claim for relief arising from the person's
(1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.
According to the allegations of plaintiff's complaint, defendants Thompson, Bledsoe and Dewalt were,"upon information and belief... personally involved in the decision to continue Plaintiff's incarceration past his judicially imposed sentence...." Compl. ¶¶ 7-9. However, plaintiff provides no support for his statement that these defendants"under authority from the BOP, engaged in tortious conduct in the District of Columbia." Pl.'s Opp'n at 8 (emphasis added). It is undisputed and confirmed by the allegations made in his complaint that plaintiff was never incarcerated in the District of Columbia. See Compl. ¶ 15 ("On January 4, 1995, Mr. Zakiya voluntarily surrendered and self-reported to FCI Morgantown... a minimum security prison in West Virginia."); ¶ 41 ("Mr. Zakiya was then transferred by the BOP... first to FCI Lewisburg, a maximum security facility in Lewisburg, Pennsylvania on or about February 19, 1998, and then, after two weeks, to FCI Petersberg [sic], in Petersburg, Virginia, on or about March 4, 1998...").
From these allegations of plaintiff's complaint, it is clear that any injury Mr. Zakiya sustained occurred in West Virginia, Pennsylvania and/or Petersburg, Virginia, and therefore the Court cannot conclude that any tortious injury occurred in this district. See Meyer v. Federal Bureau of Prisons, 929 F. Supp. 10, 13 (D.D.C. 1996) (in Bivens action, court declined to exercise personal jurisdiction over federal defendant residing in Missouri where plaintiff failed to"allege that he was harmed in any way in the District of Columbia by [the defendant]."); Risley, 918 F. Supp. at 23 (in Bivens action, court declined to exercise personal jurisdiction over federal prison officials where plaintiff failed to"allege that he suffered any injury in the District of Columbia."); Marshall v. Reno, 915 F. Supp. 426, 429 (D.D.C. 1996) (in Bivens action, court declined to exercise personal jurisdiction over federal prison officials where"no injury [was] alleged to have been suffered in the District of Columbia..."); Dorman v. Thornburgh, 740 F. Supp. 875, 878 (D.D.C. 1990) (declining to exercise personal jurisdiction over North Carolina defendants where"the purported injury to the plaintiffs occurred in North Carolina.'Under the District of Columbia'long-arm' statute, both the act and the effect, or injury, must take place in the District [of Columbia].'") (citations omitted), aff'd 955 F.2d 57 (D.C. Cir. 1992).
Furthermore, plaintiff's position that the Virginia and West Virginia defendants"engaged in tortious conduct in the District of Columbia" because they"[a]ll are federal officers, and agents of the BOP, which is headquartered in the District of Columbia[,]" Pl.'s Opp'n at 8, must also be rejected as was a similar argument in Dorman, 740 F. Supp. at 875. In Dorman, the plaintiffs alleged that the defendants, who included the Attorney General, the BOP and BOP prison officials located in North Carolina, violated the plaintiffs' constitutional rights through the implementation of a federal regulation that required"inmates [to] apply a portion of their prison employment earnings toward certain financial obligations, such as restitution, fines, and assessments." Id. at 877 (citations omitted). When plaintiff Dorman refused to have some of his prison work assignment earnings applied to the payment of his court assessed fines because he claimed his disabled wife needed the money, prison officials removed him from his work assignment. Id. Dorman and his wife filed a lawsuit in which they argued that the prison officials' actions violated several of their constitutional rights and that the defendants had conspired to deprive the plaintiffs of these rights. Id. In concluding that it did not have personal jurisdiction over the North Carolina defendants under the District of Columbia long-arm statute, a former member of this court noted that the plaintiffs had failed"to cite an overt act in furtherance of the conspiracy which occurred in Washington, D.C." and rejected plaintiffs' argument that the"overt act [committed] in Washington D.C. was the promulgation of Program Statement 538.91 from which the Butner [,North Carolina BOP] defendants' enforcement authority [was] derived." Id. at 878. The court stated that it was reject[ing] any efforts by the plaintiffs to characterize regulations promulgated in Washington, D.C. into overt acts in furtherance of a ...