PINSON v. U.S. DEPARTMENT OF JUSTICE

Filing 142

MEMORANDUM OPINION granting 105 Defendants' request to sever 102 Plaintiff's Motion for Preliminary Injunction; transferring 102 Plaintiff's Motion for Preliminary Injunction to the U.S. District Court for the District of Colorado; and severing and transferring 32 Plaintiff's Privacy Act claim to the U.S. District Court for the District of Colorado. See document for details. Signed by Judge Rudolph Contreras on 11/21/2014. (lcrc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JEREMY PINSON,
Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, et al.,
Defendants.

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Civil Action No.:

12-1872 (RC)

Re Doc. No.: 102

MEMORANDUM OPINION
TRANSFERRING PLAINTIFF’S PRELIMINARY INJUNCTION AND PRIVACY ACT CLAIM TO THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

I. INTRODUCTION
This action is before the Court on Plaintiff Jeremy Pinson’s (“Plaintiff”) August 15,
2014, Motion for Preliminary Injunction (“preliminary injunction”), which seeks to enjoin the
United States Department of Justice (“DOJ”) from sharing Plaintiff’s inmate records in violation
of 5 U.S.C. § 552a (“Privacy Act”). The preliminary injunction stems from an original
complaint filed with this Court on November 15, 2012, and subsequently amended 1 to include
other federal agencies and employees involved in the administration of the federal prison system.
The operative complaint was brought pursuant to 5 U.S.C. § 552, the Freedom of Information
Act (“FOIA”), the Privacy Act, and Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics (“Bivens”). 2
1

Following Plaintiff’s November 15, 2012, complaint, Plaintiff filed an amended complaint on
December 6, 2012; a second amended complaint on January 11, 2013; and a corrected second
amended complaint on October 24, 2013 (“complaint”), which serves as the operative complaint.
2

403 U.S. 388 (1971) (recognizing that the 4th Amendment provides a right of action against
federal officials brought in the official’s individual capacity).

The preliminary injunction at issue here focuses on events allegedly occurring at a United
States Penitentiary (“USP”) Administrative Maximum Facility in Florence, Colorado (“ADX
Florence”), where Plaintiff is currently incarcerated. Plaintiff asks the Court to enjoin “DOJ
from allowing its employees [at ADX Florence] to violate [P]laintiff’s Privacy Act rights[]” by
disseminating inmate records. See Pl.’s Prelim. Inj. at 1–2, ECF No. 102. Plaintiff alleges that
he is under constant threat of harm from other inmates because these records detail complaints
filed with prison investigators pursuant to 42 U.S.C.A. § 15601, et seq., the Prison Rape
Elimination Act (“PREA”), which identify Plaintiff as an informant. See id. at 1–3. In
opposition, Defendant DOJ asks the Court to sever the preliminary injunction from Plaintiff’s
earlier claims 3 because 1) the claims are not logically related nor do they share common
questions of law or fact, and 2) the District Court of Colorado is a more appropriate venue given
Plaintiff’s incarceration in the state, the location of witnesses and records, and other efficiency
factors. See Defs.’ Opp. Prelim. Inj. at 1–2, 5–9, ECF No. 105.
For the reasons detailed below, the Court denies Defendant DOJ’s request to dismiss the
preliminary injunction. Pursuant to Rule 21, however, the Court grants Defendant’s request to
sever the preliminary injunction and sua sponte severs Plaintiff’s Privacy Act claim, transferring
both to the United States District Court for the District of Colorado, pursuant to 28 U.S.C.
§ 1404(a). Plaintiff’s FOIA claim, however, will remain before this Court as a separate action,
pursuant to 5 U.S.C. § 552(a)(4)(B); similarly, Plaintiff’s Bivens claim will remain before this
Court because the transferee district may lack personal jurisdiction over Defendants. See 28
U.S.C. § 1404(a) (“[A] district court may transfer any civil action to any other district or division
3

Defendants, in the alternative, ask the Court to deny the preliminary injunction because
Plaintiff failed to exhaust administrative remedies and his inability to show a likelihood of
success on the merits. See Defs.’ Opp. Prelim. Inj. at 2, ECF No. 105. Because the Court elects
to sever the motion pursuant to Rule 21, these arguments are not considered here.
2

where it might have been brought . . . .”) (emphasis added); In re Scott, 709 F.2d 717, 720 (D.C.
Cir. 1983) (determining that section 1404(a) expressly requires that venue in the transferee court
be proper) (discussing Hoffman v. Blaski, 363 U.S. 335 (1960)).
II. BACKGROUND
Parties named in Plaintiff’s complaint include DOJ, Charles E. Samuels, Jr. (“Samuels”),
Director of the Federal Bureau of Prisons (“BOP”), and John Dignam (“Dignam”), Chief of the
Office of Internal Affairs at BOP. Samuels and Dignam are named in both their official and
individual capacities. The complaint alleges that: i) DOJ and its components violated FOIA by
refusing to produce information in response to a range of requests submitted by Plaintiff; ii)
Defendants Samuels, Dignam, and BOP and its employees at both ADX Florence and the
Federal Correctional Institution in Talladega, Alabama (“FCI Talladega”) violated the Privacy
Act by: a) entering false information into Plaintiff’s internal files; b) refusing to remove such
information upon request by Plaintiff; and c) allowing other personal information in Plaintiff’s
records to be disseminated to inmates at ADX Florence without Plaintiff’s consent; and finally
iii) Defendants BOP, Samuels, and Dignam violated Plaintiff’s Constitutional rights 4 in
retaliation for Plaintiff’s participation in litigation against BOP, criticism of BOP online, and
continued contact with media sources. 5 In response, Defendant DOJ filed a range of pre-answer

4

Plaintiff’s January 11, 2013 second amended complaint alleged violations of the 1st and 8th
Amendments; specifically, that unnamed Defendants: i) failed to separate Plaintiff from the
general prison population after he cooperated with law enforcement, and ii) conducted
systematic harassment, including denying access to legal documents and mail service, and filing
false disciplinary reports. See Pl.’s 2d Am. Compl. ¶¶ 4, 28–35, ECF No. 5. Subsequent filings,
however, did not identify specific sections of the Constitution but instead named Defendants
Samuels and Dignam in their individual capacities, pursuant to Bivens. See Pl.’s Corrected 2d
Am. Compl. at 2, 13–16, ECF No. 32.
5

Plaintiff’s complaint alleges that Samuels instructed BOP employees at ADX Florence to
“‘convince’ [him] to quit filing lawsuits and contacting the news media[]” through a campaign of
3

motions on the various portions of Plaintiff’s claims, requesting that the Court either dismiss
Plaintiff’s claims or grant summary judgment in its favor.
III. SEVERING PLAINTIFF’S CLAIMS
Before electing to transfer a claim, 6 the court must first sever the relevant claims into
separate cases, so that one may be transferred in its entirety. See Spaeth v. Michigan State Univ.
Coll. of Law, 845 F. Supp. 2d 48, 57 n.13 (D.D.C. 2012) (severing claims prior to transferring,
per § 1404(a)); Abuhouran v. Nicklin, 764 F. Supp. 2d 130, 132 (D.D.C. 2011) (“[B]ecause
§ 1406(a) contemplates the transfer of a ‘case,’ . . . the claims must first be severed into separate
cases . . . .”); accord Wyndham Assocs. v. Bintliff, 398 F.2d 614, 618–19 (2d Cir. 1968)
(recognizing that claims must first be severed into separate actions prior to being transferred or
retained under § 1404(a)). For the reasons discussed below, the Court i) severs Plaintiff’s
preliminary injunction because it involves factual events distinct from those forming the basis of
the complaint, and ii) severs Plaintiff’s Privacy Act claim because it is wholly unrelated to his
FOIA claim.
A. Legal Standard
The court is entitled to sever any claim against a party, either in response to a motion or
sua sponte, and to proceed with each separately. 7 See Fed. R. Civ. P. 21; 8 see, e.g., Davidson v.

harassment, including searches, deprivation of meals, threats, and restricting mail service. See
Pl.’s Corrected 2d Am. Compl. at 15–16, ECF No. 32; see also Pl.’s 2d Am. Compl. ¶ 35, ECF
No. 5.
6

See note 15, infra.

7

It is important to distinguish between claims severed under Rule 21 and trials separated
pursuant to Rule 42(b); separated trials generally result in one judgment, whereas severed claims
become entirely independent actions moving forward. See Fed. R. Civ. P. 42(b); see, e.g., Lucas
v. Barreto, 2005 WL 607923, at *2 (D.D.C. Mar. 16, 2005); Wausau Bus. Ins. Co. v. Turner
Const. Co., 204 F.R.D. 248, 250 (S.D.N.Y. 2001); 9A Charles Alan Wright & Arthur R. Miller,
Fed. Prac. & Proc. Civ. § 2387 (3d ed. 1998).
4

D.C., 736 F. Supp. 2d 115, 119 (D.D.C. 2010); Lucas v. Barreto, 2005 WL 607923, at *2
(D.D.C. Mar. 16, 2005); 21 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ.
§ 1689 (3d ed. 1998) (“[A]lthough the primary significance of Rule 21 is in the context of
joinder of parties, it does have an effect on the joinder of claims.”). In determining whether to
join or sever claims, courts employ the permissive joinder requirements articulated in Rule 20(a),
which permits claims to be joined if: 1) the claims arise from the same transaction or occurrence,
or series of transactions or occurrences; and 2) any question of law or fact common to all
plaintiffs arose in the action. See Fed. R. Civ. P. 20(a); 9 see also Montgomery v. STG Int’l, Inc.,
532 F. Supp. 2d 29, 35 (D.D.C. 2008); Disparte v. Corp. Exec. Bd., 223 F.R.D. 7, 10–11 (D.D.C.
2004). Even if the requirements of Rule 20(a) are met, the final decision to sever claims remains
with the court. See M.K. v. Tenet, 216 F.R.D. 133, 137 (D.D.C. 2002) (“The determination of a
motion to sever is within the discretion of the trial court.”) (citation omitted).
First, to satisfy the “same transaction or occurrence” prong of Rule 20(a), the claims must
be logically related. See Davidson v. D.C., 736 F. Supp. 2d 115, 119 (D.D.C. 2010) (“‘[A]ll
‘logically related’ events entitling a person to institute a legal action against another generally are
regarded as comprising a transaction or occurrence.’”) (quoting Mosley v. Gen. Motors Corp.,
497 F.2d 1330, 1333 (8th Cir. 1974)). This logical relationship test must remain flexible because
“the impulse is toward entertaining the broadest possible scope of action consistent with fairness
to the parties; joinder of claims, parties and remedies is strongly encouraged.” Disparte, 223
8

The Rule reads in relevant part: “On motion or on its own, the court may at any time, on just
terms, add or drop a party. The court may also sever any claim against a party.” Fed. R. Civ. P.
21 (emphasis added).
9

The Rule reads in relevant part: “Plaintiffs . . . may join in one action as plaintiffs if . . . they
assert any right to relief . . . with respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrences; and . . . any question of law or fact common to all plaintiffs
will arise in the action.” Fed. R. Civ. P. 20(a)(1)(A–B).
5

F.R.D. at 10 (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966)). The
movant, however, cannot join parties “who simply engaged in similar types of behavior . . . [but
are] otherwise unrelated; some allegation of concerted action . . . is required.” Spaeth v. Mich.
State Univ. College of Law, 845 F. Supp. 2d 48, 53 (D.D.C. 2012) (citation omitted). The second
prong of Rule 20(a) “requires only that there be some common question of law or fact as to all of
the plaintiffs’ claims, not that all legal and factual issues be common to all the plaintiffs.”
Disparte, 22d F.R.D. at 11 (citing Mosley, 497 F.2d at 1334). In deciding to sever claims,
however, the court should consider whether the decision risks prejudicing a party or causing
undue delay. See Davidson, 736 F. Supp. 2d at 120 (citing M.K. v. Tenet, 216 F.R.D. 133, 138
(D.D.C. 2002) (internal citation omitted)); see also Disparte, 223 F.R.D. at 12 (recognizing that
in applying Rule 20(a), the court should avoid prejudicing the parties or confusing the jury)
(citation omitted).
B. Analysis
Defendants ask the Court to sever the preliminary injunction from Plaintiff’s broader
claims because the two are not logically related, nor are they governed by common questions of
law or fact. See Defs.’ Opp. Prelim. Inj. at 6, ECF No. 105. Citing Rule 20(a), Defendants argue
that the claims are “separated by time, distance, and circumstances [and] [o]ther than the fact that
they both arise under the Privacy Act, Plaintiff has ‘offered nothing to suggest the claims are
logically related in any way.’” Id. (citation omitted). Defendants claim that whereas the
complaint alleges a pattern of retaliation and the inclusion of false information into files at FCI
Talladega, the preliminary injunction focuses on the dissemination of records at ADX Florence,
thereby indicating that Plaintiff is pursuing “separate [legal] theories unlikely to present common
questions of law or fact.” Id. at 6–7.

6

Plaintiff’s reply argues that Rule 20 and 21 are inapplicable here because the two are
“meant to be used in evaluating a complaint, not . . . factual assertion[s] raised in later motions.”
Pl.’s Rep. Opp’n Prelim. Inj. at 2, ECF No. 107. Plaintiff claims that Rule 15(d) 10 permits
“supplemental factual allegations” for “matters occurring after the original complaint is filed.”
Id. (citation omitted). Thus, the allegations raised in the preliminary injunction “involving
[D]efendants are properly raised in this supplemental pleading.” Id. at 3. Finally, Plaintiff
disagrees that all actions at issue in the preliminary injunction occurred in Colorado because
complaints 11 were forwarded to Defendant Dignam in Washington, DC, and “subsequent
investigations were directed by [Dignam] from DC.” Id.
The allegations which form the basis for the preliminary injunction involve distinct
factual events from those detailed in the complaint. See Davidson v. D.C., 736 F. Supp. 2d 115,
119 (D.D.C. 2010) (citation omitted); Battle v. D.C., 2009 WL 6496484, at *1 (D.D.C. Apr. 29,
2009) (“A review of the complaint . . . reveals that each . . . claim is based on an entirely
different set of facts.”). Whereas the complaint asserts a range of FOIA violations set against
allegations of a pattern of retaliation, the preliminary injunction focuses solely on the
dissemination of unrelated records at ADX Florence. Compare Pl.’s Corrected 2d Am. Compl.
at 2–16, ECF No. 32, with Pl.’s Prelim. Inj. at 2, ECF No. 102. The problem, therefore, is an
absence of facts in the preliminary injunction that would support a linkage to the facts pled in the
10

Rule 15(d) reads in relevant part: “On motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d).
The Court notes, however, that Plaintiff has not amended his complaint pursuant to Rule 15.
11

To support the claim that the allegations at issue in the preliminary injunction did not take
place solely in Colorado, Plaintiff submits to evidence a redacted complaint form that was
forwarded to Defendant Dignam on May 13, 2005, and a response letter from the Denver office
of DOJ’s Office of the Inspector General, dated June 10, 2013, informing Plaintiff that his
complaint of alleged threats of retaliation by an ADX Florence lieutenant would be forwarded to
Defendant Dignam. See Pl.’s Rep. Opp’n Prelim. Inj., Ex. 1, Attach. C, H, ECF No. 107.
7

complaint. See Battle, 2009 WL 6496484, at *2 (failing to state facts showing a logical
relationship between claims does not satisfy Rule 20(a)).
Furthermore, Plaintiff’s Privacy Act claim is improperly joined because it bears no
logical relation to the FOIA claim, nor do the two share common issues of law or fact. See Fed.
R. Civ. P. 20(a); see also Montgomery v. STG Int’l, Inc., 532 F. Supp. 2d 29, 35 (D.D.C. 2008);
Disparte v. Corp. Exec. Bd., 223 F.R.D. 7, 10 (D.D.C. 2004). Although the complaint provides a
detailed inventory of Plaintiff’s various FOIA requests, whether DOJ or its components properly
searched and disclosed records pursuant to these requests is a matter wholly distinct from the
alleged actions of Defendants Samuels, Dignam, or BOP staff at either FCI Talladega or ADX
Florence. See Abuhouran v. Nicklin, 764 F. Supp. 2d 130, 133 (D.D.C. 2011) (applying Rule 21
to sever inmate’s FOIA claims from retaliation and constitutional claims brought against BOP
prison staff). Plaintiff does not attempt to link the FOIA claim with his remaining claims, nor
can this Court identify either a logical relationship or commonality of law or fact.
Even adopting a flexible test premised on an “impulse . . . toward entertaining the
broadest possible scope of action[,]” United Mine Workers of America v. Gibbs, 383 U.S. 715,
724 (1966), the Court finds no basis, factual or otherwise, for allowing the preliminary injunction
to be joined with Plaintiff’s broader claims. See Montgomery, 532 F. Supp. 2d at 35; Disparte,
223 F.R.D. at 10–11; accord Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir.1974)
(recognizing that “transaction” can include a series of occurrences “depending not so much upon
the immediateness of their connection as upon their logical relationship”) (citing Moore v. N.Y.
Cotton Exch., 270 U.S. 593, 610 (1926)). As such, the Court grants Defendant’s request to sever
the preliminary injunction and, based on its authority under Rule 21, sua sponte severs Plaintiff’s
Privacy Act claim. See Fed. R. Civ. P. 21 (“On motion or on its own, the court may . . . sever

8

any claim against a party.”); M.K. v. Tenet, 216 F.R.D. 133, 137 (D.D.C. 2002) (recognizing that
even if the requirements of Rule 20(a) could be met, the final decision to sever claims remains
with the court).
IV. TRANSFERRING PLAINTIFF’S CLAIMS
Plaintiff asserts jurisdiction pursuant to 5 U.S.C § 552 (FOIA), 5 U.S.C § 552a (Privacy
Act), Bivens, 12 and venue pursuant to 28 U.S.C. § 1391(e). 13 See Pl.’s Corrected 2d Am. Compl.
at 1, ECF No. 32. Plaintiff argues that “[v]enue for an injunction against agency defendants in
their official capacity is permitted in any district in which ‘a defendant in the action resides.’”
Pl.’s Rep. Opp’n Prelim. Inj. at 3–4, ECF No. 107 (citing 28 U.S.C. § 1391(e)). Defendants
maintain that venue is improper and request that the preliminary injunction be transferred to the
District of Colorado. See Defs.’ Opp. Prelim. Inj. at 8–9, ECF No. 105. For the reasons outlined
below, the Court grants Defendant’s request to transfer the preliminary injunction to the District
of Colorado, and sua sponte transfers Plaintiff’s Privacy Act claim, pursuant to 28 U.S.C. §
1404(a). 14 Although the Court would likewise be inclined to transfer Plaintiff’s Constitutional
claims, as discussed above, these claims will be retained by this Court because of a possible lack
of personal jurisdiction over the individual Defendants in the transferee district. See 28 U.S.C. §

12

403 U.S. 388 (1971). See note 2, supra.

13

The statute reads in relevant part: “A civil action in which a defendant is an officer or
employee of the United States or any agency thereof acting in his official capacity . . . may,
except as otherwise provided by law, be brought in any judicial district in which (A) a defendant
in the action resides, (B) a substantial part of the events or omissions giving rise to the claim
occurred . . . or (C) the plaintiff resides . . . .” 28 U.S.C. § 1391(e)(1)(A–C).
14

The Court is cognizant of the filing restrictions imposed on Plaintiff by the District of
Colorado for “abusive litigation conduct [and] . . . filing tactics[.]” See Defs.’ Mem. Opp.
Prelim. Inj. at 8 n.3, ECF No. 105; Exs. 9–10, ECF No. 105-10. We defer to the Court there on
how it wishes to proceed with the transferred claims. See also, note 20, infra.
9

1404(a) (“[A] district court may transfer any civil action to any other district or division where it
might have been brought . . . .”) (emphasis added).
A. Legal Standard
Regardless of whether venue is proper, courts retain discretion to transfer a claim to
another district. 15 When venue is improper, section 1406 allows the court to transfer rather than
dismiss a claim, if doing so would be in the interest of justice. See Naartex Consulting Corp. v.
Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). Alternatively, section 1404 permits transfer even
when venue is proper, provided the court conducts an “individualized, case-by-case
consideration of convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988) (citations omitted). Such broad discretion enables the preservation of judicial resources
and guards against unnecessary inconvenience and expense to the parties. See Van Dusen v.
Barrack, 376 U.S. 612, 616 (1964) (quoting Cont’l Grain Co. v. The FBL-585, 364 U.S. 19, 26–
27 (1960)); accord Starnes v. McGuire, 512 F.2d 918, 927 (D.C. Cir. 1974) (en banc) (“[T]he
main purpose of section 1404(a) is to afford defendants protection where maintenance of the
action in the plaintiff’s choice of forum will make litigation oppressively expensive,
inconvenient, difficult or harassing to defend.”) (citation omitted).
In forming its decision, the Court must consider “factors other than those that bear solely
on the parties’ private ordering of their affairs . . . [such as] balanc[ing] the convenience of the
witnesses and those public-interest factors of . . . integrity and fairness that, in addition to private
concerns, come under the heading of ‘the interest of justice.’” Ricoh Corp., 487 U.S. at 30. This
15

The authority to transfer is granted by statute, both for claims properly and improperly laid.
See, e.g., 28 U.S.C. § 1404(a) (“For the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other district or division where it
might have been brought . . . .”); 28 U.S.C. § 1406(a) (“The 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.”).
10

involves an analysis of both the private interests of the parties and the public interests of the
courts. 16 See Montgomery v. STG Int’l, Inc., 532 F. Supp. 2d 29, 32 (D.D.C. 2008) (“[I]f the
balance of private and public interests favors a transfer of venue, then a court may order a
transfer.”). Although the Court retains broad discretion in weighing these interests, the
plaintiff’s choice of forum must also be given certain consideration. See Norwood v.
Kirkpatrick, 349 U.S. 29, 32 (1955); see also Santos v. Trustees of Grinnell College, 999 F.
Supp. 2d 219, 223 (D.D.C. 2013) (“[W]eight given to a plaintiff’s choice of forum is mitigated
when it is not the plaintiff’s home forum.”) (citation omitted).
B. Analysis
1. Preliminary Injunction and Privacy Act Claim
Plaintiff alleges that “BOP by and through its employees at FCI Talladega entered false
information . . . to transfer Plaintiff to ADX Florence,” and asks the Court to enjoin the “use of
false information” and declare that “DOJ components failed to comply with the . . . Privacy Act.”
Pl.’s Corrected 2d Am. Compl. at 13, 16, ECF No. 32. Defendants respond by highlighting that
courts in this jurisdiction have “expressly rejected the notion that inmates incarcerated in other
jurisdiction[s] can challenge their conditions of confinement in this district simply because it is
the location of the BOP,” and request that the preliminary injunction be transferred to the District
of Colorado. See Defs.’ Opp. Prelim. Inj. at 8–9, ECF No. 105 (citation omitted).

16

Private interest factors may include: the preferred forum of the parties; the location where the
claim arose; convenience to parties; availability of witnesses; and access to evidence and other
sources of proof. Alternatively, public interest considerations may include: knowledge or
expertise of the governing law in the alternative forum; congestion in both courts; and local
interests in deciding the controversy at home. See Spaeth v. Michigan State Univ. Coll. of Law,
845 F. Supp. 2d 48, 57–58 (D.D.C. 2012) (citation omitted).
11

Venue 17 for Plaintiff’s Privacy Act claim is proper in this district because the statute
allows suits to be brought in any district where the plaintiff resides, where the records at issue are
located, or the District of Columbia. See 5 U.S.C. § 552a(g)(5). 18 The fact that venue is proper
in the District of Columbia does not, by itself, establish that the matter is most appropriately
litigated here. See Starnes v. McGuire, 512 F.2d 918, 925 n.7 (D.C. Cir. 1974) (“There is
certainly no reason why all cases involving the construction or constitutionality of a federal
statute should be litigated in the District of Columbia.”). Rather, courts in this jurisdiction must
carefully consider venue to guard against the danger that plaintiffs may manufacture venue
simply by naming government officials or agencies as defendants. See Cameron v. Thornburgh,
983 F.2d 253, 256 (D.C. Cir. 1993); Simpson v. Fed. Bureau of Prisons, 496 F. Supp. 2d 187,
193 (D.D.C. 2007). Thus, claims must allege more than a “bare assumption that policy decisions
made in Washington might have affected” a Plaintiff’s treatment in federal prison. See
Cameron, 983 F.2d at 258; Starnes, 512 F.2d at 923 (transferring “discourage[s] duplicative
litigation and will relieve the D.C. courts of the unnecessarily onerous task of deciding cases
brought ‘by a prisoner incarcerated far away . . . based on events alleged to have taken place in
distant parts of the country.’” (citation omitted)).

17

Typically, questions of personal jurisdiction are determined prior to venue, although in certain
circumstances “sound prudential justification” may allow the court to consider venue without
first deciding personal jurisdiction. See Leroy v. Great W. United Corp., 443 U.S. 173, 180
(1979) (“The question of personal jurisdiction . . . is typically decided in advance of venue . . .
[but] when there is a sound prudential justification for doing so, we conclude that a court may
reverse the normal order . . . .”); see also Cameron, 983 F.2d at 257 (transferring a claim to a
proper venue without deciding personal jurisdiction because doing so was in the “interest of
justice”).
18

The statute reads in relevant part: “An action to enforce any liability created under this section
may be brought in the district court of the United States in the district in which the complainant
resides, or has his principal place of business, or in which the agency records are situated, or in
the District of Columbia . . . .” 5 U.S.C. § 552a(g)(5).
12

Instead, suits involving federal prisoners may be transferred pursuant to § 1404(a) after
considering the location of incarceration, the whereabouts of relevant records and witnesses, and
other convenience factors. See, e.g., Mathis v. Geo Grp., Inc., 535 F. Supp. 2d 83, 87–88
(D.D.C. 2008) (noting that the availability of witnesses is often the most critical consideration);
Galindo v. Gonzales, 550 F. Supp. 2d 115, 117 (D.D.C. 2008) (transferring a case to another
jurisdiction because the alleged illegal actions at issue continued to occur there); accord Pickard
v. Dept. of Justice, 2011 WL 2199297, at *3 (N.D. Cal. June 7, 2011) (transferring a prisoner’s
Privacy Act claim to the district where the records at issue were located). Although such actions
may be more conveniently litigated in the district where the prisoner is confined, transfer should
not be made routinely and without consideration of particular circumstances. 19 See Starnes, 512
F.2d at 930–32; cf. In re Pope, 580 F.2d 620, 622 (D.C. Cir. 1978) (noting that a prisoner’s
residence for the purpose of venue is the location of confinement).
Here, permitting venue simply because DOJ is headquartered in the District would ignore
that virtually all alleged acts or omissions giving rise to Plaintiff’s preliminary injunction and
Privacy Act claims occurred largely in Alabama or Colorado. See Galindo, 550 F. Supp. 2d at
117; Kirby v. Mercury Sav. & Loan Ass’n, 755 F.Supp. 445, 448 (D.D.C. 1990) (transferring sua
sponte a case that had “virtually nothing to do with th[e] jurisdiction”). Furthermore, because
Plaintiff has been restricted from bringing actions in other jurisdictions, 20 he has even more

19

In determining whether transfer is appropriate, a court should consider: (i) plaintiff’s difficulty
of communicating with counsel; (ii) the difficulty of transferring the prisoner; (iii) availability of
witnesses and files; (iv) the location of the plaintiff’s immediate custodian; and (v) the speed of
final resolution. See Starnes, 512 F.2d at 930–32.
20

In addition to the fact that Plaintiff was barred from bringing further actions in forma pauperis
under the “three strikes” provision of the Prisoner Litigation Reform Act, which bars further
claims after three were dismissed for being frivolous, malicious, or failing to state a claim, see 28
U.S.C. § 1915(g); Pinson v. Fed. Bureau of Prisons, 2012 WL 3872014, at *1 (W.D. Okla. Sept.
13

powerful incentives to manufacture venue in this district. Therefore, given that Plaintiff is
currently incarcerated in Colorado, a large portion of the records and witnesses at issue are
located in the state, and finally, because of possible transportation difficulties, Plaintiff’s Privacy
Act and preliminary injunction would be more appropriately litigated in the District of Colorado.
2. Bivens claims
Plaintiff also brings Constitutional claims against Defendants Dignam and Samuel in
their individual capacities pursuant to Bivens, 21 whereby the Supreme Court “recognized for the
first time an implied private action for damages against federal officers alleged to have violated a
citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (discussing
Bivens, 403 U.S. 388 (1971)); see also Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011)
(“It is well established that Bivens remedies do not exist against officials sued in their official
capacities.”) (citation omitted). Because Bivens actions are for damages for which a defendant is
personally liable, a court must have personal jurisdiction over individual defendants in order to
bind them to judgment. 22 See Cornish v. United States, 885 F. Supp. 2d 198, 205 (D.D.C. 2012).
The District of Columbia’s long-arm statute, however, allows the Court to exercise “general
jurisdiction over any person who ‘maintain[s] his or its principal place of business’ in the
District[,]” thereby granting personal jurisdiction over a federal employee with an office located

6, 2012), appeal dismissed (Oct. 29, 2012), the District of Colorado has imposed additional
restrictions due to Plaintiff’s abusive litigation conduct and filing tactics. See note 14, supra.
21

403 U.S. 388. See note 2, supra.

22

Plaintiff asserts venue for his Bivens claims based on 28 U.S.C. § 1391(e), which permits suits
against government agencies or officers acting in their official capacity to be brought in any
district in which a named defendant resides; however, section 1391(e) is inapplicable for Bivens
actions. See Cameron v. Thornburgh, 983 F.2d 253, 256, 257 n.2. (D.C. Cir. 1993) (citing
Stafford v. Briggs, 444 U.S. 527, 542–43 (1980)). Plaintiff does not assert venue under 28
U.S.C. § 1391(b), the general venue statute applicable for Bivens actions. See Coltrane v.
Lappin, 885 F. Supp. 2d 228, 233 (D.D.C. 2012) (citation omitted).
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here. See Cameron, 983 F.2d at 258 n.4 (citing D.C. CODE § 13–422 (2012)); Baez v. Connelly,
734 F. Supp. 2d 54, 56–57 (D.D.C. 2010). Accepting the facts pled in the complaint as true for
the purposes of this motion, 23 Defendants Samuels and Dignam allegedly directed a pattern of
illegal retaliation from the District of Columbia, thereby suggesting that a substantial part of the
events giving rise to Plaintiff’s claims occurred here.
Although the Court is inclined to transfer Plaintiff’s Bivens claims given that Plaintiff is
currently incarcerated in Colorado and a portion of the records and witnesses at issue are located
in the state, see Metcalf v. Federal Bureau of Prisons, 530 F. Supp. 2d 131, 135 (D.D.C. 2008)
(“Given the likelihood that witnesses and relevant evidence are maintained [in another
jurisdiction], . . . [transfer] is both convenient for the parties and is in the interest of justice.”)
(citing Starnes v. McGuire, 512 F.2d 918, 930–31 (D.C. Cir. 1974)), the Court is hesitant to do
so because the transferee district might assert that it lacks personal jurisdiction over the
individual Defendants, and because other relevant records and witnesses may be located in
Alabama, rather than Colorado. See 28 U.S.C. § 1404(a) (“[A] district court may transfer any
civil action to any other district or division where it might have been brought . . . .”) (emphasis
added); Hoffman v. Blaski, 363 U.S. 335, 368–69 (1960) (acknowledging the competence of
District Courts to administer section 1404(a) in the spirit of “actual convenience” to parties); In
re Scott, 709 F.2d 717, 721 (D.C. Cir. 1983) (“[P]ower to transfer a case . . . must be coupled
with an adequately reasoned, even-handed basis for transfer[ing].”). As such, Plaintiff’s Bivens

23

The Court acknowledges that although complaints should provide “more than a sheer
possibility that a defendant has acted unlawfully[,]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted) a “pro se complaint, ‘however inartfully pleaded,’ must be held to ‘less
stringent standards than formal pleadings[.]’” Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(citation omitted). Because the merits of Plaintiff’s Bivens claims are not the focus here, the
Court will not consider whether the complaint states a plausible claim.
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claims will remain before this Court. See Zakiya v. United States, 267 F.Supp.2d 47, 60 (D.D.C.
2003) (determining that a case should be brought in the jurisdiction where plaintiff could
properly assert claims against defendants in their individual capacities).
VI. CONCLUSION
In conclusion, the Court hereby denies Defendant DOJ’s request to dismiss the
preliminary injunction; however, the Court grants Defendant’s request to sever the preliminary
injunction and sua sponte severs Plaintiff’s Privacy Act claim, transferring both to the United
States District Court for the District of Colorado. Plaintiff’s FOIA and Bivens action claims will
remain before this Court. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: November 21, 2014

RUDOLPH CONTRERAS
United States District Judge

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