Hernandez v Mueller et al
OPINION. Signed by Judge Robert B. Kugler on 3/10/2015. (tf, n.m.) [Transferred from njd on 3/11/2015.]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 13-1156 (RBK) (JS)
ROBERT B. KUGLER, U.S.D.J.
Plaintiff is a federal prisoner currently incarcerated at F.C.I. Fort Dix in Fort Dix, New
Jersey. He is proceeding pro se with a civil rights complaint filed pursuant to Bivens v. Six
Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. §§ 1981 & 1985.
On January 21, 2014, the Court dismissed the complaint without prejudice. The Court gave
plaintiff thirty days in which to move to reopen this case and instructed him that he should attach
to any such motion to reopen a proposed amended complaint that corrected the deficiencies
noted in the January 21, 2014 Opinion. On July 29, 2014, the Court received plaintiff’s motion
to reopen along with a proposed amended complaint. While plaintiff’s motion to reopen is
plainly untimely, in the interest of justice, the Court will grant the motion to reopen and the
Clerk will be ordered to file the amended complaint. For the reasons that follow, this action will
be transferred to the United States District Court for the Eastern District of Arkansas.
The Court dismissed plaintiff’s original complaint without prejudice on January 21, 2014.
Plaintiff named only Jordan Hollingsworth, the warden at F.C.I. Dix, as a defendant in his
original complaint. The Court detailed plaintiff’s allegations in his original complaint as
Plaintiff states that he began serving his federal sentence for a
controlled substance violation in 2008 in Kansas City, Missouri.
At that time, plaintiff learned that he had been labeled as a MS-13
gang member. As a result, he was harassed and threatened by
other inmates. Plaintiff was subsequently transferred to F.C.I.
Forrest City in Arkansas after a few months. However, while at
Forrest City, the MS-13 designation followed plaintiff and he was
placed in a special housing unit for his safety for five-and-one-half
In 2010, plaintiff states that he was transferred to F.C.I. Fort Dix.
He states that he has not been harassed by fellow inmates for his
purported gang affiliation. Plaintiff claims that he is concerned
about going home to El Salvador upon his currently scheduled
release date in 2018 due to being labeled an MS-13 gang member.
He states that he fears for the safety of his family members in El
Salvador as well due to the MS-13 designation and that he will
never secure employment after he is released from prison due to
(Dkt. No. 7 at p. 2.) The Court construed plaintiff’s original complaint as attempting to allege a
failure to protect claim against Hollingsworth due to plaintiff being designated as a member of
the MS-13 gang. Ultimately, the Court dismissed the original complaint without prejudice
because plaintiff failed to allege that Hollingsworth subjectively knew of any substantial risk of
harm that plaintiff could face as a result of his purported MS-13 affiliation. Furthermore, the
Court noted that the complaint was devoid of any allegations that Hollingsworth was aware that
plaintiff had been so designated as a member of the MS-13 gang. Indeed, the Court further
explained that plaintiff admitted that he had not been harassed by fellow inmates for his MS-13
designation since his arrival at F.C.I. Fort Dix in 2010. Accordingly, the Court dismissed the
complaint without prejudice, giving plaintiff leave to file an amended complaint if he elected to
Plaintiff has now submitted an amended complaint. 1 Plaintiff names six defendants in his
amended complaint: (1) Robert Mueller – Director of the Federal Bureau of Investigation
(“FBI”); (2) Gregory Beninato – Special Agent at the FBI; (3) Robert Sigler – Assistant United
States Attorney; (4) Warden – U.S. Penitentiary, Leavenworth, Kansas; (5) Warden # 2 – FCI
Forrest City, Forrest City, Arkansas; and (6) John Does 1-10.
Plaintiff states that in 2007, government informants, on orders from Beninato,
deliberately and intentionally set out to smear, taint and tarnish the name of plaintiff by telling
plaintiff’s neighbors that he was a member of the MS-13 gang. During 2007, the defendants
were complicit in the knowledge and conduct of government informants who threatened to
blackmail plaintiff by disseminating this false gang affiliation information. Defendants failed to
deter or report on this behavior and actually encouraged or acted in concert with the informants.
Plaintiff was arrested in 2007 on federal drug conspiracy charges. He claims that the plan
to disseminate the false information about him being a member of the MS-13 gang spilled into
his 2008 trial. He specifically alleges that defendant Sigler and witnesses deliberately mentioned
the MS-13 gang no less than seventy-seven times, thereby intentionally disregarding the
knowledge that plaintiff was never a member of the gang. This trial testimony purportedly
tainted the pre-sentence report which in turn was used to classify and categorize plaintiff within
the Federal Bureau of Prisons (“BOP”) system. Plaintiff states that the BOP system penalizes
inmates for their gang affiliation.
Plaintiff also states that in 2008 he was in a maximum security prison in Kansas City.
Plaintiff alleges that he knew at that time that prison staff had disseminated to the prison
The amended complaint and the allegations therein completely supersede the allegations of the
previously dismissed original complaint. See West Run Student Housing Assocs., LLC v.
Huntington Nat’l Bank, 712 F.3d 165, 172 (3d Cir. 2013).
population that he was an alleged member of the MS-13 gang. This led to assaults and threats to
plaintiff by inmate gang members. When plaintiff complained to prison staff about this issue, he
was told that court papers classified him as a MS-13 member and that it did not matter how
inmates had discovered the information since they would hear about it “sooner or later.”
Plaintiff was then transferred to a low security prison in Forrest City, Arkansas. While at
that prison, plaintiff again received threats and assaults from his alleged MS-13 gang
membership. Plaintiff was then placed in segregated punitive confinement in the Special
Housing Unit (“SHU”). Plaintiff was told by prison staff members that he would likely to be
transferred to another facility in light of intelligence received regarding past and impending
threats of violations related to his alleged MS-13 gang affiliation. Plaintiff was also told by
inmates that he had now become targeted by MS-13 gang members for purported trying to “get
out” of the gang. Plaintiff was forced to seek refuge within the protection of another prison
gang. Nevertheless, plaintiff states that he has learned that there are MS-13 members outside of
prison and in El Salvador that have marked him for death.
Plaintiff asserts his claims under Bivens as well as 42 U.S.C. § 1981 and § 1985. Plaintiff
demands monetary damages on his claims.
Typically, at this time, this Court would screen the complaint pursuant to 28 U.S.C. §
1915A(b) to determine whether it should be dismissed as frivolous or malicious, for failure to
state a claim upon which relief may be granted, or because it seeks monetary relief from a
defendant who is immune from suit. However, because venue is not proper in this District based
on the allegations of the amended complaint, the action will be transferred to a court where
venue is proper before this Court screens the petition under § 1915A(b).
The applicable venue statute in this action is 28 U.S.C. § 1391(b) which states as follows:
A civil action may be brought in –
(1) a judicial district in which any defendant
resides, if all defendants are residents of the State in
which the district is located;
(2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred, or a substantial part of property the is the
subject of the action is situated; or
(3) if there is no district in which an action may
otherwise be brought as provided in this section,
any judicial district in which any defendant is
subject to the court’s personal jurisdiction with
respect to such action.
Id.; see also Pennello v. United States, No. 11-6964, 2011 WL 6097771, at *3 (D.N.J. Dec. 6,
2011) (noting that proper venue in a Bivens action is governed by 28 U.S.C. § 1391(b));
Henneghan v. Smith, No. 09-7381, 2011 WL 609875, at *2 (S.D.N.Y. Feb. 17, 2011) (noting that
venue for Section 1981 and 1985 claims is governed by 28 U.S.C. § 1391) (citation omitted).
Plaintiff does not state where all of the defendants reside. However, it can be assumed that the
defendants reside in different states. For example, plaintiff has named the wardens of two
different federal prisons that are located in different states as defendants. Thus, the most
applicable venue provision for this case would be 28 U.S.C. § 1391(b)(2).
The events giving rise to the allegations of the amended complaint did not occur in this
District. Indeed, plaintiff alleges that he was falsely labeled a member of MS-13: (1) before and
at his 2008 trial (which occurred in Nebraska) 2; (2) while incarcerated at a federal prison in
Kansas City in 2008; and (3) while incarcerated at a federal prison in Forrest City, Arkansas.
Plaintiff’s criminal trial took place in Nebraska. See United States v. Hernandez, 569 F.3d 893
(8th Cir. 2009).
Accordingly, venue is not proper in New Jersey as none of the events of the amended complaint
occurred in this District.
Under such circumstances, this Court will transfer this case to a District where venue is
proper. However, it appears as if venue could be proper in several districts as the events giving
rise to the allegations of the complaint occurred in the District of Nebraska, the District of
Kansas and the Eastern District of Arkansas. For the reasons that follow, despite the fact that
venue may be proper in three potential federal districts, the Court will transfer this case to the
United States District Court for the Eastern District of Arkansas.
The statute of limitations for a Bivens claim is taken from the forum state’s personal
injury statute. See Hughes v. Knieblher, 341 F. App’x 749, 752 (3d Cir. 2009) (per curiam)
(citing Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993); Napier v. Thirty or More
Unidentified Fed. Agents, Employees or Officers, 855 F.2d 1080, 1087 n.3 (3d Cir. 1988)). In
Nebraska, that limitations period would be four years. See Baker v. Neneman, No. 14-3051,
2015 WL 757295, at *1 (D. Neb. Feb. 23, 2015) (citing NEB. REV. STAT. § 25-207; Bridgeman v.
Nebraska State Penitentiary, 849 F.2d 1076, 1077-78 (8th Cir. 1988)). Kansas has a two-year
statute of limitations period. See Martino v. U.S. Marshal Service, No. 11-3075, 2012 WL
884911, at *2 (D. Kan. Mar. 14, 2012) (citing KAN. STAT. ANN. § 60-513(a)(4); Johnson v.
Johnson Cnty. Com’n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991)). In Arkansas, a three-year
statute of limitations applies to Bivens claims. See Kendrick v. Ardnt, No. 08-5242, 2009 WL
1229886, at *5 (W.D. Ark. May 1, 2009) (citations omitted). “While state law provides the
applicable statute of limitations, federal law controls when a Bivens claim accrues.” Peguero v.
Meyer, 520 F. App’x 58, 60 (3d Cir. 2013) (citing Wallace v. Kato, 549 U.S. 384, 388 (2007).
Under federal law, a Bivens claims accrues when the plaintiff knows of or has reason to know of
the injury. See Hughes, 341 F. App’x at 752 (citing Sameric Corp. v. City of Phila., 142 F.3d
582, 599 (3d Cir. 1998)).
In this case, plaintiff filed his original complaint on February 25, 2013 under the prisoner
mailbox rule. See Houston v. Lack, 487 U.S. 266, 270-71 (1988); see also Maples v. Warren,
No. 12-0993, 2012 WL 1344828, at *1 n.2 (D.N.J. Apr. 16, 2012) (“Often times, when the court
is unable to determine the exact date that a petitioner handed his petition to prison officials for
mailing, it will look to the signed and dated certification of the petition.”) The only conduct that
would potentially fall within the statute of limitations of the three potential forum states is the
conduct that occurred at the Forrest City, Arkansas prison. Indeed, the Nebraska claims occurred
at or around plaintiff’s trial in 2008 as alleged in the amended complaint. Thus, the applicable
four-year statute of limitations that would apply if this Court transferred this action to Nebraska
would potentially not make this action timely as to the events that transpired within that district
since they occurred in 2007 and 2008, or more than four years before plaintiff filed this case in
February 25, 2013. Plaintiff also alleges that the actions giving rise to his Kansas City claims
occurred in 2008. Thus, if this action was transferred to Kansas, it too would purportedly have
significant timeliness issues in light of the applicable two-year statute of limitations on Bivens
claims in that state.
Nevertheless, the amended complaint is less clear regarding when the events transpired in
Forrest City, Arkansas. Therefore, out of the three potential proper venue districts based on the
allegations of the amended complaint, the Court finds that that it is in the interest of justice to
transfer this action to the United States District Court for the Eastern District of Arkansas as the
other two purported proper venues (Nebraska and Kansas) raise significant statute of limitations
hurdles for plaintiff. 3
For the foregoing reasons, the motion to reopen this case will be granted and the Clerk
will be ordered to file the amended complaint. The Clerk will be ordered to transfer this case to
the United States District Court for the Eastern District of Arkansas as venue is not proper in this
District. An appropriate order will be entered.
DATED: March 10, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
This Opinion does not make any affirmative timeliness findings. Instead, the timeliness
discussion is solely related to determining what venue is most appropriate for transfer purposes
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