The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
Plaintiff, a prisoner currently at the Federal Correctional Institution ("FCI") in Ray Brook, New York, alleges that the Bureau of Prisons ("BOP") has acted with deliberate indifference to his serious medical need for treatment for two hernias. Invoking Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff seeks $250,000 in monetary damages, Compl. at 1, and a declaratory judgment, "declaring that [h]is rights under the Eighth Amendment . . . were in fact violated by [defendants'] actions." Id. at 4. In addition to BOP, plaintiff names as defendants Warden Ronnie Holt of the United States Penitentiary ("USP") Canaan in Waymart Pennsylvania, and Warden David J. Ebbert of FCI Allenwood in White Deer, Pennsylvania, both of whom he is suing in their official and individual capacities.*fn1 Id. at 2.
Defendants move to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, 12(b)(3) for improper venue, 12(b)(5) for insufficient service of process, and 12(b)(6) for failure to state a claim upon which relief may be granted. Mem. of P. & A. in Support of Defs.' Mot. to Dismiss ("Defs.' Mem.") at 1. Upon consideration of the parties' submissions, the Court will grant defendants' motion to dismiss under Rules 12(b)(1), (b)(2) and (b)(3).
Plaintiff alleges that he was diagnosed with two hernias and that BOP refused to follow a doctor's proposed plan to perform "elective repair . . . under general anesthesia . . . scheduled for June 15, 2009." Compl. at 3 ¶ 1. Instead, plaintiff alleges, BOP "intentionally removed [him] from U.S.P. Canaan, which served as [his] primary residence . . . to F.C.I. Allenwood conspicuously preventing the scheduled surgery and subjecting Plaintiff to undue suffering and the minimal civilized measures of life's necessities." Id. Plaintiff states that Allenwood staff "reexamined" him but did not refer him "to a professional medical authority" or follow the foregoing surgical recommendation. Id.
According to plaintiff's medical records supplied by BOP under seal, Defs.' Mem., Ex. E, plaintiff had two hernias surgically repaired on September 22, 2008, while confined at USP Big Sandy in Inez, Kentucky. In December 2008 and January 2009, plaintiff complained first to medical staff at Big Sandy and then to medical staff at Canaan, where he was transferred, that the hernias had returned. Between January and March 2009, plaintiff was seen by Canaan's medical staff four times and prescribed medicine. On March 27, 2009, a general surgeon at Canaan recommended that the hernias be surgically repaired. Plaintiff was seen again by Canaan's medical staff on May 4, 2009, but was later transferred to FCI Allenwood on May 28, 2009.
Defs.' Mem. at 4. On June 1 and June 8, 2009, plaintiff was examined by medical staff at FCI Allenwood. Id., Ex. E. On June 12, 2009, a doctor again suggested elective surgical repair of the hernias and scheduled it for June 15, 2009. Id. But on June 17 and July 10, 2009, the Utilization Review Committee ("URC") at Allenwood denied plaintiff's request for the elective surgery and "recommended follow-up on [plaintiff's] condition in three months to determine if surgery is indicated."*fn2 Id., Ex. C, ECF p.16. Plaintiff was seen by medical staff at Allenwood on June 19, July 2, October 5 and October 22, 2009. Id., Ex. E. On October 5, 2009, the Allenwood medical staff noted that "[e]xamination shows two incisional hernias which are easily reducible and non-tender," found the size of the hernias unchanged since June 1, 2009, and found "[n]o indication for surgical repair at the present time." Id.
Plaintiff filed this action on September 16, 2010, asserting that but for his transfer presumably from Canaan to Allenwood on May 28, 2009, "there exist a reasonable likelihood that Plaintiff would have had the elective repair needed to remedy the continual injury he suffers as a result of the serious medical need." Compl. at 3 ¶ 3.
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.' " Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "[A]n argument in a dispositive motion that the opponent fails to address in an opposition may be deemed conceded." Rosenblatt v. Fenty, 734 F. Supp. 2d 21, 22 (D.D.C. 2010) (citations omitted); see Order (May 6, 2011) [Doc. # 19] (advising plaintiff of possibility of treating uncontested motion as conceded).
A. Subject Matter Jurisdiction
Under the doctrine of sovereign immunity, the United States is immune from suit unless Congress has expressly waived the defense of sovereign immunity by statute. United States v. Mitchell, 463 U.S. 206, 212 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."). Such consent may not be implied; it must be "unequivocally expressed." United States v. Nordic Vill., Inc., 503 U.S. 30, 33--34 (1992). A waiver of immunity is strictly construed in favor of the sovereign. Orff v. United States, 545 U.S. 596, 601--02 (2005). Plaintiff bears the burden of establishing that sovereign immunity has been abrogated. "A plaintiff must overcome the defense of sovereign immunity in order to establish the jurisdiction ...