The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff Roy Steve Davis, a prisoner incarcerated under federal sentence, filed an amended pro se complaint under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), naming as defendants the former United States Attorney General Michael Mukasey, the Federal Bureau of Prisons ("BOP") and its Director, Harley G. Lappin, United States Penitentiary ("USP") Lee Warden Terry O'Brien and Officer R. Sizemore, and Federal Correctional Institution ("FCI") Gilmer employees Joyce Francis, M. Veltri, and D. Smith. The defendants have filed a motion to dismiss for lack of subject matter jurisdiction, for lack of personal jurisdiction, for improper venue, and for failure to state a claim upon which relief may be granted. Davis, having been advised that failure to respond to the defendants' motion could result in the case being dismissed, filed a "Motion To Continue Summary Judgment" that will be construed as an opposition.*fn1 The plaintiff has also filed a "Motion to Compel Government to Affirm or Deny Existence of Electronic Surveillance" and his third motion for appointed counsel. For the reasons stated, the complaint will be construed to assert a claim under the Federal Tort Claims Act and, in the interests of justice, the case will be transferred to the United States District Court for the Western District of Virginia to cure a venue defect. The defendants' motion to dismiss will be granted to the extent that all constitutional claims will be dismissed either as barred by sovereign immunity or as not properly exhausted, and will be denied in the remainder. Ruling on the plaintiff's motions to compel and for appointed counsel will be left to the transferee court.
The amended complaint alleges that while Davis was confined at FCI Gilmer, a medium security facility, BOP employees Francis, Veltri and Smith arranged to transfer him to USP Lee, a high-security facility, in retaliation for filing numerous grievances about prison conditions. It further alleges that the transfer was arranged in the knowledge that the murderer of Davis's two sons was incarcerated at USP Lee. Am. Compl. ¶¶ 2-3. On October 19, 2007, three days after he had arrived at USP Lee, Davis was assaulted by three other inmates, including the murderer of his two sons, who had gained allegedly unauthorized access to the unit where Davis was housed. Id. ¶¶ 4-6. Davis, who feared for his life, was scalded with a hot liquid and beaten with fists and feet. He sustained burns to his neck and shoulder, a bloody nose, and bruises. Id. ¶ 5 & Att. 1 at 3-5. The amended complaint alleges that the inmates who assaulted Davis were able to gain unauthorized access to his unit due to Sizemore's inattention and/or prison understaffing. Id. ¶ 5. In addition, it alleges that prison staff failed to intervene as soon as they could have or should have to stop the assault. Id. ¶ 6. BOP records show that Davis exhausted his available BOP administrative remedies with respect to the assault. See Defendants' Motion to Dismiss ("Defs.' Mot."), Declaration of Rina Desai (Feb. 18, 2009) ("Desai Decl.") ¶ 7 (acknowledging that Davis exhausted his administrative remedies regarding prison staff witnessing the assault without promptly intervening). Public records also show that Davis administratively exhausted a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., which was denied by letter dated February 20, 2008. See Desai Decl., Att. F at 3 (letter dated February 20, 2008, denying Davis's FTCA claim and advising that he had six months to file a civil action). Within two weeks of receiving notice that his FTCA claim had been denied, Davis initiated this civil action. See Compl. at 1 (showing date-stamp receipt for March 4, 2008 ).
Davis's original complaint was sufficiently unclear that the Court required him to file an amended complaint. The amended complaint invokes Bivens and asserts violations of his First and Eighth Amendment protections. See Am. Compl. at 1, 2, 7. Davis seeks "compensatory damages" for injuries and mental anguish, presumably related to the assault and/or the dangerous prison environment, an order assigning him to a low security prison camp,*fn2 and "declaratory relief due to the [BOP] provisions of not providing identification of assailants [and] unsafe conditions...." Id. at 8. Davis has repeatedly asked for court-appointed counsel to assist with this litigation.
Defendants argue that the constitutional claims against the BOP and all other defendants in their official capacity are barred by sovereign immunity, and have moved under Rule 12(b)(1) to dismiss the BOP and the official-capacity defendants. They have moved under Rule 12(b)(2) to dismiss all personal-capacity defendants except Mukasey and Lappin for lack of personal jurisdiction. They have also moved under Rule 12(b)(6) to dismiss the retaliatory transfer claim and the general overcrowding claims because Davis did not exhaust his administrative remedies with respect to those claims. In addition, they argue that a Bivens action cannot be maintained against Mukasey and Lappin on a theory of respondeat superior. Finally, they argue that the claims against Sizemore must also be dismissed because the complaint does not contain factual allegations that support an Eighth Amendment claim against him.
To survive a motion to dismiss, a complaint must allege "enough facts to state a claim for relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and to show that the pleader is entitled to relief, id. at 557. The court is obligated to construe the factual allegations in the complaint in the light most favorable to the plaintiff, including reasonable inferences derived from the factual allegations. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). The court's favorable construction does not extend, however, to inferences or to conclusory allegations that are unsupported by the facts alleged in the complaint. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). At the same time, a pro se complaint, "however inartfully pleaded," must be accorded liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). Consideration of supplemental materials to clarify the claims in a pro se complaint, particularly documents in the public record in administrative proceedings, does not require the Court to convert a motion to dismiss to a motion for summary judgment. Greenhill v. Spellings, 482 F.3d 569, 572 (D.C. Cir. 2007); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n.6 (D.C. Cir. 1993) (stating that matters of public record may be examined on a Rule 12(b)(6) review); Anyanwutaku v. Moore, 151 F.3d 1053 (D.C. Cir. 1998) (taking account of a later-filed addendum to clarify the pro se complaint).
A liberal construction of the amended complaint reveals five claims against one or more of the defendants in this case. One is the Eighth Amendment claim against USP Lee Warden O'Brien and Officer Sizemore for injuries the plaintiff sustained while unnamed prison staff allegedly watched but did not intervene promptly when Davis was assaulted by other inmates on October 19, 2007 at USP Lee in Jonesville, Virginia.*fn3 The Court construes a second claim arising from this assault. This civil action followed immediately upon Davis learning that his FTCA administrative claim had been denied and that he had six months to file a civil action on the FTCA claim. Therefore, the amended complaint will be construed to assert an FTCA claim for negligence arising from the assault and injuries Davis incurred on October 19, 2007, in addition to the Bivens Eighth Amendment claim based on the assault.
The amended complaint can be read fairly to assert a third claim against O'Brien and Lappin for allegedly permitting general overcrowding at USP Lee, which allegedly culminated in the assault on the plaintiff in violation of Davis's Eighth Amendment protections. Id. ¶¶ 5, 7, 10. As a fourth claim, the amended complaint asserts that Davis's First Amendment rights were violated when his transfer from a medium security prison, FCI Gilmer, to a high-security prison, USP Lee, was orchestrated by FCI Gilmer employees Francis, Veltri and Smith in retaliation for filing administrative grievances. Id. ¶¶ 2, 8, 9. As a fifth claim, it alleges that the former U.S. Attorney General's failure to prosecute unidentified persons helped to create prison conditions so dangerous to Davis that it violated his Eighth Amendment rights. Id. ¶ 11.
A. The United States Defendants
An official-capacity suit against an agency or agent of the federal government is the equivalent of a suit against the United States of America. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). The United States of America may be sued only insofar as it consents to suit. In all other cases, the federal government enjoys sovereign immunity from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The United States of America has not consented to suit for constitutional violations, and therefore, this Court does not have subject matter jurisdiction to entertain a suit for constitutional violations against the BOP or any defendant named in his or her official capacity. Accordingly, the constitutional claims against the BOP and all official-capacity defendants will be dismissed for lack of subject matter jurisdiction.
In contrast, Congress has expressly consented to allow suit against the United States of America under the FTCA. Accordingly, the United States of America will be substituted for the BOP as a defendant on the FTCA claim. Because there are special venue provisions attendant to an FTCA claim, in the interest of justice, 28 U.S.C. § 1406(a), this action will be transferred to the United States District Court for the Western District ...