United States District Court, D. Columbia.
TERRANCE MACKEY, Plaintiff, Pro se, TERRE HAUTE U.S. PENITENTIARY, TERRE HAUTE, IN.
For UNITED STATES OF AMERICA, Defendant: Fred Elmore Haynes, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
RUDOLPH CONTRERAS, United States District Judge.
The defendant, by counsel, has filed a motion to dismiss the complaint [ECF No. 6]. For the reasons discussed below, the motion will be granted.
" [O]wing to his age," plaintiff had been " awarded the sum of $929.00 per month, and decreasing to $905.00 per month, as Social Security Benefits." Verified Complaint (" Compl." ) ¶ 6. He received payments in August and December 2004, id. ¶ ¶ 6, 8, " but through some oversight or problem," id. ¶ 8, he had not received payments between August 2005 and August 2007, id. Plaintiff has been incarcerated since 2008, id. ¶ 9, and presently is confined in a federal correctional facility in Terre Haute, Indiana, id. ¶ 1.
According to plaintiff, defendant owes him $9,194.00. Id. ¶ 11. He alleges that he " made [a] demand for payment . . . which was rejected . . . on or about March 13, 2013." Id. ¶ 12. Defendant, plaintiff
explains, " could not issue payment to [him] under Social Security Act Article 202(x)(1)(A) [because he] is imprisoned." Id. ¶ 13. Plaintiff now seeks a court order directing defendant " to pay [him] the sum of Nine-thousand, one-hundred, ninety-four dollars ($9,194.00) plus interest thereon, from August of 2005[,]" among other relief. Id. at 5 (page number designated by ECF).
Defendant asserts that a " special venue statute . . . applies to Social Security appeals," Motion to Dismiss and Supporting Memorandum of Points and Authorities (" Def.'s Mot." ) at 4, under which an action for review of a final decision of the Commissioner of Social Security " shall be brought in the . . . judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia." 42 U.S.C. § 405(g). Defendant argues that venue in this district is not proper because plaintiff " is in prison in Indiana, and he does not allege that he has a principal place of business in the District of Columbia." Def.'s Mot. at 4. Plaintiff " urges the Court to refrain from the drastic, and uncalled for remedy of dismissal," opting instead to " transfer the matter to the Federal District in Indianapolis, Indiana" if the Court " determine[s] that this District [is] forum non conveniens." Plaintiff Terrance Mackey's Opposition to the Defendant's Motion to Dismiss at 3.
The Court may dismiss an action filed in the wrong district or, if it is in the interest of justice, instead may transfer the case to any district where the action could have been brought. See 28 U.S.C. § 1406(a). In this Circuit, a prisoner " resides" in the federal district where he is incarcerated. In re Pope, 580 F.2d 620, 622, 188 U.S.App.D.C. 357 (D.C. Cir. 1978) (stating that " for purposes of the general venue statute a prisoner has his residence at his place of confinement" ) (citing Starnes v. McGuire, 512 F.2d 918, 925 n.7, 168 U.S.App.D.C. 4 (D.C. Cir. 1974)); Jones v. United States, 820 F.Supp.2d 58, 61 (D.D.C. 2011) (finding that prisoner incarcerated in the Eastern District of Virginia resides in that district, such that, " under the law of this Circuit, the District of Columbia is not a proper venue for this action" ). Plaintiff does not reside in the District of Columbia, and he could have brought this action in the Southern District of Indiana where the Terre Haute facility is located.
Ordinarily, transfer is preferable to dismissal, see, e.g., Sierra Club v. Tennessee Valley Auth., 905 F.Supp.2d 356, 364 (D.D.C. 2012), particularly where transfer removes " procedural obstacles" such as " the lack of personal jurisdiction, improper venue and statute of limitation bars." Sinclair v. Kleindienst, 711 F.2d 291, 294, 229 U.S.App.D.C. 13 (D.C. Cir. 1983) (citation omitted). However, transfer is not warranted where it appears that dismissal by the transferee court is likely because the complaint fails to state a claim upon which ...