The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
In this civil action filed pro se, plaintiff, a federal prisoner confined at the Federal Correctional Complex ("FCC") in Terre Haute, Indiana, claims that he has been deprived of adequate medical treatment because of "a long-standing custom or usage of the United States of America . . . ." Complaint for the Deprivation of Constitutional Rights Pursuant to Title 28 U.S.C. § 1331 ("Compl.") at 2. He sues the United States, the Federal Bureau of Prisons ("BOP"), and BOP's Administrator of National Inmate Appeals Harrell Watts for alleged violations of the Eighth Amendment. Plaintiff seeks monetary damages and equitable relief. Defendants move to dismiss the complaint pursuant to Rules 12(b)(1), (b)(2), (b)(4), (b)(5) and (b)(6) of the Federal Rules of Civil Procedure. See Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss ("Defs.'s Mem.") [Dkt. # 22] at 1.
Upon consideration of the parties' submissions, the Court will grant the motion to dismiss the damages claim against the United States under Rule 12(b)(1) for lack of subject matter jurisdiction, grant the motion to dismiss the claim against Watts in his personal capacity under Rule 12(b)(6) for failure to state a claim, and permit plaintiff to show cause why the surviving claims for injunctive and declaratory relief should not be transferred to the Southern District of Indiana. In light of this disposition, the Court will not address the remaining grounds for dismissal based on alleged deficiencies in serving Watts personally with process.*fn1
The allegations of the complaint are as follows. Plaintiff is a 76-year-old diabetic who "suffers from renal insufficiency." Compl. at 4. In December 2008, he sought treatment for "severe cramps all over his body" that were "debilitating." Id. at 4-5. A Unit Officer called Health Services, but a Physician's Assistant, who initially agreed to evaluate and treat plaintiff, allegedly left before seeing plaintiff. Id. at 5. He "refused to even evaluate Thomas, let alone treat his concerns." Id. at 6. Plaintiff's visit to Health Services allegedly occurred on a Friday afternoon before a holiday weekend; thus, he "was forced to suffer without treatment for approximately 96 hours." Id. at 5. In responding to plaintiff's administrative appeal of the denial of his grievance about the lack of medical care, defendant Watts allegedly "falsified an official Government document when he claimed" in July 2009 that plaintiff's medical records revealed that he had been treated for his cramps. Id. at 7; see Compl. Attach. at 29 (Response to Administrative Remedy ("Admin. Resp.")).
In the instant complaint lodged on December 8, 2009, plaintiff claims that he "does not have a difference of opinion with FCC Medical Staff on what kind of treatment he should receive," Compl. at 6, but rather he disagrees "with FCC Terre Haute Medical Staff on the claim that he has received ANY TREATMENT for his condition." Id. (emphasis in original). He also claims that the delay in medical treatment violated BOP policy permitting same-day treatment for urgent medical needs. Id. at 5-6. Plaintiff seeks an unspecified amount of monetary damages, as well as declaratory and injunctive relief. Id. at 12.
1. Subject Matter Jurisdiction
Defendants move to dismiss under Rule 12(b)(1) on the ground that sovereign immunity bars plaintiff's Eighth Amendment claim for damages against the United States, BOP and Watts in his official capacity. Defs.' Mem. at 4-5. The claim against Watts in his official capacity is equivalent to a claim against the United States. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). "[T]he United States may not be sued without its consent and . . . the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). Such consent may not be implied, but must be "unequivocally expressed." United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). The Federal Tort Claims Act ("FTCA") waives the United States' immunity as to certain common law torts, see 28 U.S.C. §§ 1346(b)(1), 2679(b), but not constitutional tort claims, see FDIC v. Meyer, 510 U.S. 471, 478 (1994); Clark v. Library of Congress, 750 F.2d 89, 102-04 (D.C. Cir. 1984). Therefore, the Court will grant defendants' motion to dismiss the constitutional claim for damages against the United States, BOP and Watts in his official capacity under Rule 12(b)(1) for lack of subject matter jurisdiction.
2. Failure to State a Claim Against Watts
Defendants move under Rule 12(b)(6) to dismiss the constitutional claim against Watts in his individual capacity, arguing, inter alia, that it is based on an impermissible theory of respondeat superior. Defs.' Mem. at 8-10. In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court "recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). To be held liable, however, the official must have participated personally in the alleged wrongdoing. Liability cannot be based on a theory of vicarious liability, Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1948 (2009) ("vicarious liability is inapplicable to Bivens . . . suits"), or a theory of respondeat superior. Id.; see Cameron v. Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993) (concluding that a complaint naming Attorney General and the BOP Director as defendants based on theory of respondeat superior, without allegations specifying their involvement in the case, did not state Bivens claim against them); Epps v. U.S. Att'y Gen., 575 F. Supp. 2d 232, 239 (D.D.C. 2008) ("A superior official cannot be held liable under . . . Bivens for the constitutional torts of employees under him or her; the common law theory of respondeat superior does not pertain to the federal government in this context.") (citing Marshall v. Reno, 915 F. Supp. 426, 429-30 (D.D.C. 1996)).
In his one-page response to plaintiff's appeal to BOP's Central Office, Watts stated that "[r]elevant portions of [plaintiff's] medical record have been reviewed which reveal you have received treatment for your complaints of body cramps." Admin. Resp. Watts explained that the medical record showed that plaintiff was "evaluated, prescribed appropriate medication, and provided education regarding treatment of [his] condition," and that "the record reflects you are receiving medical care and treatment in accordance with Bureau policy." Id. Plaintiff alleges that Watts "falsified an official Government document" Compl. at 7, but he does not state in what way. Furthermore, the claim against Watts, predicated only on his issuance of an adverse decision on plaintiff's administrative appeal, does not establish the requisite personal involvement of Watts in any decisions about plaintiff's medical care. Watts therefore cannot be held liable under Bivens for the alleged acts or omissions of medical staff at FCC Terre Haute. See Gonzalez v. Holder, - F. Supp. 2d -, 2011 WL 44210, at * 4 (D.D.C., Feb. 8, 2011) ("[A] prison official's decision on an inmate grievance with respect to an alleged constitutional violation does not itself render him personally liable under Bivens.") (citing cases).
3. Plaintiff's Claim for Injunctive Relief
Plaintiff does not state what type of injunctive relief is sought, but it is presumed that he seeks to compel prison officials at FCC Terre Haute to provide adequate medical treatment for his chronic ailments. This claim brought directly under the Eighth Amendment is not foreclosed. See Corr. Servs. Corp., 534 U.S. at 74 (recognizing that a lawsuit for "injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally."); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (concluding that "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' . . . proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.") (citations and footnotes omitted). ...