Rudkin v. Allred et al

Filing 16

ORDER to Sever and Transfer Claims. ORDERED that Mr. Rudkin's claims against Defendants Green and Lopez are severed from this lawsuit and transferred to the United States District Court for the Middle District of Florida, by Judge Lewis T. Babcock on 9/10/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01471-BNB
MICHAEL RUDKIN,
Plaintiff,
v.
DAVID ALLRED,
GREEN,
LOPEZ,
ANTHONY OSAGIE,
C.A. WILSON, and
BUREAU OF PRISONS,
Defendants.

ORDER TO SEVER AND TRANSFER CLAIMS

Plaintiff, Michael Rudkin, is a prisoner in the custody of the United States Bureau
of Prisons (BOP) at the United States Penitentiary, Administrative Maximum, in
Florence, Colorado. Mr. Rudkin has filed pro se an amended Prisoner Complaint (ECF
No. 15) pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), alleging that his rights under the United States Constitution have
been violated. He seeks damages as well as declaratory and injunctive relief.
The Court must construe the amended Prisoner Complaint liberally because Mr.
Rudkin is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the amended Prisoner
Complaint reasonably can be read “to state a valid claim on which the plaintiff could
prevail, [the Court] should do so despite the plaintiff’s failure to cite proper legal

authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110.
However, the Court should not be an advocate for a pro se litigant. See id. For the
reasons discussed below, Mr. Rudkin’s claims against Defendants Green and Lopez will
be severed from this action and transferred to the appropriate federal district court in
Florida.
Mr. Rudkin claims in the amended Prisoner Complaint that his rights under the
Eighth Amendment have been violated because prison medical officials have refused to
authorize an MRI that Mr. Rudkin contends is necessary to diagnose and treat his
shoulder and ankle injuries. The named Defendants include two individuals at a federal
prison in Florida, three individuals at a federal prison in Colorado, and the BOP. With
respect to the Florida Defendants, Defendants Green and Lopez, Mr. Rudkin alleges
that they refused to authorize an MRI in June 2009 while Mr. Rudkin was incarcerated
at a federal prison in Coleman, Florida, because an MRI would be too expensive. Mr.
Rudkin alleges that the Colorado Defendants separately have refused to authorize an
MRI at various times since March 2011 after he was transferred to a federal prison in
Colorado. Other than the fact that Mr. Rudkin has been denied an MRI during his
incarceration at federal prisons in both Florida and Colorado, he does not allege any
connection between the Florida Defendants and the Colorado Defendants.
The Court has reviewed the amended Prisoner Complaint and finds that the
District of Colorado is not the proper venue to adjudicate Mr. Rudkin’s claims against
the Florida Defendants. Pursuant to 28 U.S.C. § 1391(b), a civil action may be brought
in:
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(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 that 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.
Although Mr. Rudkin’s claims against the Colorado Defendants properly are brought in
the District of Colorado, his separate claims against the Florida Defendants may not be
brought in Colorado because the Florida Defendants do not reside in Colorado and the
events giving rise to Mr. Rudkin’s separate claims against the Florida Defendants
occurred in Florida. Therefore, Mr. Rudkin’s claims against the Florida Defendants
properly are raised in an appropriate federal court in Florida.
“A court may sua sponte cure jurisdictional and venue defects by transferring a
suit under the federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when it is in the
interest of justice.” Trujillo v. Williams, 465 F.3d 1210, 1222 (10th Cir. 2006). Pursuant
to § 1406(a), “[t]he district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been brought.”
The Court finds that Mr. Rudkin’s claims against the Florida Defendants could
have been brought in a federal district court in Florida and that it would be in the interest
of justice to transfer those claims to a federal district court in Florida rather than to
dismiss those claims. According to the BOP website, the judicial district in which the
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Coleman Federal Correctional Complex is located is the Middle District of Florida.
Therefore, Mr. Rudkin’s claims against the Florida Defendants will be severed from this
lawsuit and transferred to the United States District Court for the Middle District of
Florida. Accordingly, it is
ORDERED that Mr. Rudkin’s claims against Defendants Green and Lopez are
severed from this lawsuit and transferred to the United States District Court for the
Middle District of Florida pursuant to 28 U.S.C. § 1406(a).
DATED at Denver, Colorado, this

10th

day of

September

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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