The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Plaintiff Mary L. Coltrane, proceeding pro se, brings this action on behalf of herself and her deceased son, Carlton Coltrane, who was allegedly "murdered on January 18, 2010, while under the care, custody, and control of the [d]efendants at the United States Penitentiary, Pollock, Louisiana ("USP Pollock")." First Amended Complaint for Monetary Damages, Declaratory Relief, Jury and Bench Trial ("Am. Compl.") at 2-3. Currently before the Court is the defendants' motion to dismiss Counts 1 through 3 of the amended complaint or, in the alternative, to transfer this case to the United States District Court for the Western District of Louisiana ("Defs.' Mot."). Upon careful consideration of the parties' submissions,*fn2 the Court concludes for the following reasons that the defendants' alternative motion to transfer must be granted.
The amended complaint contains the following pertinent allegations. The plaintiff is a resident of the District of Columbia and the mother of the decedent, Carlton Coltrane, Am. Compl. ¶ 3, who was a federal prisoner detained at USP Pollock, id. at 1-2. "On various occasions before January 18, 2010, Mr. Coltrane had informed USP Pollock staff, verbally and in writing, that he should be separated from the assailant or assailants involved in his murder, but [they] ignored these notices" and generally failed to comply with Federal Bureau of Prisons' ("BOP") policies in handling his complaints. Id. ¶ 18. Then, "[o]n January 18, 2010, [Mr.] Coltrane was stabbed and murdered by one or more assailants at USP Pollock." Id. ¶ 15. The plaintiff was notified of her son's death on January 20, 2010. Id.
The plaintiff instituted this action on January 18, 2011, and subsequently amended her complaint on December 16, 2011. The amended complaint names ten individual defendants, id. at 1-2, including Harley G. Lappin, former Director of the BOP, and Gerardo Maldonado, Jr., the Regional Director of the BOP charged with overseeing USP Pollock, see id. ¶¶ 4-5. The remaining eight individual defendants were employees of USP Pollock at the time of Mr. Coltrane's death. See id. ¶¶ 6-13. They are Joe Keffer; Newton E. Kendig, M.D.; Joel Alexander; John Doe or Jane Doe Operations Lieutenant; Willis Steortz, R.N.; Andre Molina Ossers, M.D.; Willie Vasquez, P.A.; and Dalynn Lentz, R.N. Id. at 1-2. All of these defendants are sued "in their personal and individual capacities." Id. at 2; see also ¶¶ 4-13. The United States is also named as a defendant. Id. ¶ 14.
The amended complaint sets forth three counts against the individual defendants: Count 1 asserts that the "individual [d]efendants engaged in a cover-up and conspiracy and continue to coverup the true facts of the murder of Carlton Coltrane in violation of [the plaintiff's] right to due process pursuant to [the] Fifth Amendment to the United States Constitution and the laws of the District of Columbia; Count 2 asserts that "[d]efendants Lappin, Maldonado, Keffer, John Doe or Jane Doe Operations Lieutenant, and Alexander maliciously deprived Carlton Coltrane of his life through their purposeful and deliberate failure to separate and protect him from the assailant or assailants that they knew or should have known were intent on doing him grievous bodily harm in violation of the Eighth Amendment to the United States Constitution and the laws of the District of Columbia"; and Count 3 asserts that "[d]efendants Kendig, Alexander, Steortz, Molina Ossers, Vasquez, and Lentz maliciously deprived Carlton Coltrane of his life through their purposeful and deliberate failure to provide adequate medical care and transportation in a timely manner to the proper medical facilities in violation of the Eighth Amendment to the United States Constitution and the laws of the District of Columbia." Id. ¶¶ 21-23. Count 4 of the amended complaint asserts a tort claim against the United States for Mr. Coltrane's "personal injury and death," id. ¶¶ 24, 14, pursuant to the Federal Tort Claims Act ("FTCA"), id. ¶ 1.
The defendants have now moved to dismiss Counts 1 through 3 of the amended complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), lack of personal jurisdiction under Rule 12(b)(2), improper venue under 12(b)(3), improper service of process under Rule 12(b)(5), and failure to state a claim upon which relief can be granted under Rule 12(b)(6). See Defs.' Mot. at 1. In the alternative, the defendants request that the Court transfer this case to the Western District of Louisiana. Id.*fn3
Federal Rule of Civil Procedure 12(b)(3) authorizes a party to move for dismissal of a complaint for "improper venue." "'In considering a Rule 12(b)(3) motion, the court accepts the plaintiff's well-pled factual allegations regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff's favor, and resolves any factual conflicts in the plaintiff's favor.'" Sierra Club v. Johnson, 623 F. Supp. 2d 31, 34 (D.D.C. 2009) (quoting Darby v. U.S. Dep't of Energy, 231 F. Supp. 2d 274, 276 (D.D.C. 2002)). "Nevertheless, a plaintiff 'bears the burden of establishing that venue is proper.'" Id. (quoting Varma v. Gutierrez, 421 F. Supp. 2d 110, 113 (D.D.C. 2006)). If a district court determines that venue is improper, it may either dismiss the case, "or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a).
A. The Plaintiff's Claims Against the Individual Defendants
Counts 1 through 3 of the amended complaint assert constitutional claims under the Fifth and Eighth Amendments against the individual defendants. See Am. Compl. ¶¶ 21-23. The defendants move to dismiss these claims on the ground of improper venue. Defs.' Mem. at 34.
The parties initially dispute which venue provision applies here. The
that the general venue provision, 28 U.S.C. § 1391(b),*fn4
applies because Counts 1 through 3 of the amended complaint
seek money damages from the defendants in their individual capacities
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), Defs.' Mem. at 34, and because
"[v]enue in a Bivens case is governed by 28 U.S.C. § 1391(b)," Simpson
v. BOP, 496 F. Supp. 2d 187, 193 (D.D.C. 2007) (citing, among others,
Cameron v. Thornburgh, 983 F.2d 253, 257 (D.C.Cir.1993)). The
plaintiff, on the other hand, argues ...