Terry v. USA
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/8/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02515-GPG
NATIONAL SECURITY AGENCY, and
JOHN DOES 1-50,
ORDER OF DISMISSAL
Plaintiff, Michael Terry, resides in Redlands, California. He initiated this action
by filing, pro se, a Complaint (ECF No. 1), asserting claims under the Federal Tort Claims
Act (FTCA), §§2671-2680, and Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). He also filed an Application to Proceed in District Court
Without Prepaying Fees or Costs (Long Form) (ECF No. 3).
On November 27, 2015, Magistrate Judge Gordon P. Gallagher reviewed Mr.
Terry’s filings and determined they were deficient because the Complaint was not filed on
the form approved by this Court. (ECF No. 6). Magistrate Judge Gallagher instructed
Plaintiff to resubmit his Complaint, on the court-approved form, within 30 days. (Id.).
Magistrate Judge Gallagher further directed Mr. Terry to show cause, within 30 days, why
this action should not be dismissed, without prejudice, for improper venue. (Id.).
Mr. Terry filed his [Amended] Complaint, on the court-approved form, in
compliance with the November 27 Order, on December 29, 2015. (ECF No. 7). In
support of venue, Mr. Terry alleges only that he “was seen for psychiatric emergencies in
Colorado Springs, Colorado for NSA related injuries . . . .” (ECF No. 7 at 3). The
[Amended] Complaint generally fails to comply with the pleading requirements of Fed. R.
Civ. P. 8. Mr. Terry alleges that he was injured in January 1995 “during surveillance by
U.S. military.” (Id.). He further states that he “became a Targeted Individual under the
control of the defendant who used signals technologies, directed energy weapons and
aural bioeffects” (id. at 4), which caused him to suffer physical and emotional injuries.
“The FTCA constitutes a limited waiver of the federal government's sovereign
immunity from private suit.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d
840, 852 (10th Cir. 2005). The FTCA allows the United States to be sued for claims
arising out of negligent or wrongful acts or omissions of its employees, when such
employees are acting within the scope of their duties. 28 U.S.C. § 1346(b)(1). The
United States is the sole defendant to an FTCA action. See Oxendine v. Kaplan, 241
F.3d 1272, 1275 n. 4 (10th Cir. 2001) (noting that the United States is the only proper
defendant to an FTCA suit). See also 28 U.S.C. §§ 2674, 2679. The FTCA’s venue
provision, 28 U.S.C. § 1402(b), provides that claims may be brought “only in the judicial
district where the plaintiff resides or wherein the act or omission complained of occurred.”
Mr. Terry resides in California. He does not allege any facts in the [Amended]
Complaint to suggest that the objectionable conduct occurred in Colorado. The fact that
he was treated for existing injuries by hospitals in Colorado is insufficient to show that
venue is proper in Colorado over the FTCA claim.
Mr. Terry sues the individual John Doe Defendants under Bivens, which provides a
damages remedy to victims of constitutional violations committed by federal officials.
See Carlson v. Green, 446 U.S. 14 (1980). The venue provision governing a Bivens
claims is found at 28 U.S.C. § 1391(b). In general, 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
(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.
28 U.S.C. § 1391(b).
Mr. Terry alleges that the John Doe Defendants reside in Maryland. (ECF No. 7 at
2). And, as discussed above, the [Amended] Complaint does not indicate that the
objectionable conduct occurred in the State of Colorado. Finally, Mr. Terry does not
allege any facts to show that the individual Defendants are subject to this Court’s
personal jurisdiction with respect to the allegations of the [Amended] Complaint. See
Rusakiewicz v. Lowe, 556 F.3d 1095, 1100 (10th Cir. 2009) (setting forth requirements to
establish personal jurisdiction over non-resident defendants, including that the
defendants “purposefully avail[ed] [themselves] of the privilege of conducting activities
within the forum State,” citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
The Court therefore finds that venue over the Plaintiff’s Bivens claims is not proper in
“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). However,
“There is no obligation to keep meritless claims alive through transfer to another court.”
See Johnson v. Lappin, No. 11-1381, 478 F. App’x 487, 492 (10th Cir. April 16, 2012)
(unpublished) (dismissing habeas claims raised in Bivens action as frivolous, instead of
transferring claims to appropriate federal venue); see also Haugh v. Booker, 210 F.3d
1147, 1150-51 (10th Cir. 2000) (authorizing federal court to “take a peek at the merits” to
“avoid wasting judicial resources that would result from transferring a case which is
clearly doomed.”) (internal citation and quotations omitted).
The [Amended] Complaint fails to comply with Fed. R. Civ. P. 8 and does not
appear to be meritorious. Therefore, this action will be dismissed. Accordingly, it is
ORDERED that this action is DISMISSED WITHOUT PREJUDICE for improper
venue. It is
FURTHER ORDERED that all pending motions are DENIED as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $505 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for
the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Dated January 8, 2016, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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