The opinion of the court was delivered by: Colleen Kollar Kotelly United States District Judge
This matter is before the Court on defendants' motion to dismiss.*fn1 For the reasons stated below, the Court will deny the motion without prejudice and transfer this action to the United States District Court for the Middle District of Pennsylvania.
At all times relevant to the complaint, plaintiff was incarcerated at the Allenwood Federal Correctional Institution ("FCI Allenwood") in White Deer, Pennsylvania. Complaint ("Compl.") ¶ 5. Plaintiff was released from the custody of the Federal Bureau of Prisons ("BOP") on March 7, 2005, Plaintiff's Response to Defendant's Motion to Dismiss ("Pl.'s Opp'n"), Affidavit of Ernest Simpson ("Pl.'s Aff.") ¶ 2, and presently resides in Ruther Glen, Virginia. See Compl. (caption).
The claims set forth in the complaint arose from a November 12, 2003 Incident Report which charged plaintiff with a disciplinary violation, Receiving Money from Another Inmate for a Prohibited Purpose. See Compl. ¶¶ 12-24. FCI Allenwood staff monitoring incoming money transactions described the incident as follows:
On November 7, 2003, [SIS Technician Margie A. Cook] monitored money transactions which were received in the mail on November 3, 2003. In doing so, [Cook] found a money order, dated October 30, 2003, for $200, which was sent to [plaintiff]. The sender was Tawana Grimes . . . [who] is an associate of Inmate Ingram , which can be confirmed by Ingram's money trail. Ingram has sent thousands of dollars to Tawana Grimes since November of 2002, allegedly in preparation of his upcoming wedding. Inmate Ingram received a $300 money order from Ms. Grimes on November 3, 2003, which was purchased on the same date (October 30, 2003) as [plaintiff's] money order. It is apparent that Ms. Grimes was sending money to [plaintiff] on Inmate Ingram's behalf. This type of money transaction is unauthorized.
Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss ("Defs.' Mot."), Attach. C (November 12, 2003 Incident Report Number 1161850) at 1 (page numbers designated by the Court). Lieutenant Passaniti conducted an investigation, advised plaintiff of his rights, and referred the matter to a Disciplinary Hearing Officer ("DHO"). See id., Attach. C at 2, Attach. D (Notice of Discipline Hearing Before the DHO dated November 14, 2003), & Attach. E (Inmate Rights at Discipline Hearing).
DHO Bittenbender conducted a hearing on November 20, 2003. Defs.' Mot., Attach. F (November 20, 2003 DHO Report) at 1. Plaintiff made a statement denying any knowledge of the source of the money Ms. Grimes sent him. Id. Although plaintiff assisted Inmate Ingram with legal matters, plaintiff stated that he did not ask for any compensation. Id. The DHO viewed the content of the underlying Incident Report as "inculpatory in this case," and found the money orders a clear indication of an exchange of money from the same source, Ms. Grimes, from Ingram to plaintiff. See id. at 2. Accordingly, the DHO concluded that plaintiff "committed the prohibited act(s) of Receiving Money from Another Inmate for a Prohibited Purpose, Code 217, on November 3, 2003, at FCI Allenwood, PA." Id. at 3. To punish plaintiff for his misconduct, the DHO ordered his placement in disciplinary segregation, forfeiture of statutory good conduct time (27 days), loss of commissary privileges (180 days), and loss of his job as an orderly. Id.
Plaintiff challenged the disciplinary proceedings by filing an inmate grievance. Defs.' Mot., Attach. I ("Zgrodnik Decl.") ¶ 5 & Attach. 3 (Regional Administrative Remedy Appeal No. 320229-R3). Generally, plaintiff asserted that he was denied due process of law because the DHO refused to postpone the hearing so that plaintiff could obtain representation by a staff member, failed to explain his findings of guilt, made his decision based on insufficient evidence, and imposed sanctions disproportionate to the offense. Id., Attach. 3 at 1-2. BOP's Northeast Regional Director, D. Scott Dodrill, found that there were "questions concerning the specific evidence relied upon to find [plaintiff] committed the prohibited act" and thus remanded the matter for further investigation. Id., Attach. 3 (February 19, 2004 Response to Appeal No. 320229-R3).
On rehearing, plaintiff was charged with and found to have committed "Conduct which disrupts the orderly running of the institution, most like: Receiving Money From Another Inmate for a Prohibited Purpose." Defs.' Mot., Attach. G (March 4, 2004 Amended DHO Hearing Report) at 1, 3. Plaintiff challenged this DHO decision by filing another inmate grievance. Zgrodnik Decl. ¶ 6 & Attach. 4 ( (Regional Administrative Remedy Appeal No. 329151-R1). The Regional Director's response noted that "the DHO has ordered a rehearing of this disciplinary action," and that, upon receipt and review of the new DHO decision, plaintiff could file another appeal. Id., Attach. 4 (April 23, 2004 Response to Appeal No. 329151-R1). Dissatisfied with the Regional Director's response, plaintiff filed an appeal to BOP's Central Office. Id., Attach. 5 (Central Office Administrative Remedy Appeal). Also noting that a DHO rehearing had been ordered, plaintiff again was informed of his right to appeal the DHO's decision on rehearing. Id., Attach. 5 (May 19, 2004 National Inmate Appeals Administrator Response to Remedy No. 329151-A1).
On rehearing, because the charge for "Conduct which disrupts, most like Giving/Receiving Money from another inmate for prohibited purposes, code 299 most like code 217 [was] unsubstantiated," the DHO found that "the charge for Giving receiving anything of value (Code 328) at a lesser severity level is supportive [sic] throughout the report." Defs.' Mot., Attach. H (Amended DHO Hearing Report) at 3. The DHO concluded that plaintiff committed this offense and issued an amended report on January 11, 2005. Id. at 1. According to defendants, plaintiff filed no inmate grievance with respect to the January 11, 2005 amended DHO report. Zgrodnik Decl. ¶ 7.
In September 2005, plaintiff submitted an administrative claim under the Federal Tort Claims Act ("FTCA") to the BOP stemming from the November 3, 2003 incident. Compl. ¶ 2. He demanded $850,000 as compensation for the sanctions imposed as a result of the DHO's decisions. See Defs.' Mot., Attach. A (Claim for Damage, Injury or Death dated September 5, 2005). The BOP denied plaintiff's claim. Id., Attach. B (February 28, 2006 letter regarding Administrative Tort Claim No. TRT-NER-2005-04683).
Plaintiff brings this action against BOP Director Lappin, SIS Technician Cook, Regional Director Dodrill, and DHO Bittenbender in their official capacities and in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Compl. ¶ 1. He also brings a claim against the BOP under ...