PEROTTI v. UNITED STATES OF AMERICA, et al
Filing
105
MEMORANDUM (Order to follow as separate docket entry)Plaintiffs are also reminded that their Amended Complaint must be complete in all respects. It must be a new pleading which stands by itself without reference to the Original or Amended Complaints previously filed in this matter. The amended complaint should only include Plaintiff's surviving USP-Canaan related claims which should be set forth in short, concise and legible statements. It should specify which actions are alleged as to w hich USP-Canaan Defendants. Failure of the Plaintiffs to timely submit an amended complaint which complies with the standards set forth herein or otherwise respond to this Order will result in dismissal of their action for failure to prosecute. An appropriate Order will enter. (See Memorandum) re 67 MOTION to Dismiss or in the alternative, for Summary Judgment filed by United States Of America, 66 MOTION to Dismiss or in the alternative, For Summary Judgment Signed by Honorable Richard P. Conaboy on 3/9/15. (cc) [Transferred from Pennsylvania Middle on 3/9/2015.]
IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN W. PEROTTI, AND PATRICK
J. ROSELLI,
Plaintiffs
v.
UNITED STATES OF AMERICA,
ET AL.,
Defendants
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CIVIL NO. 3:CV-12-1860
(Judge Conaboy)
_________________________________________________________________
MEMORANDUM
Background
This combined pro se Bivens-type civil rights and Federal
Tort Claims Act (FTCA) action was filed by John W. Perotti an
inmate presently confined at the United States Penitentiary,
Leavenworth, Kansas, (USP-Leavenworth) and Patrick J. Roselli, a
former federal inmate presently residing in the State of Florida.
Service of the Amended Complaint was previously ordered.
Named as Defendants are the United States of America (for
purposes of the FTCA claim) and seven (7) employees (Warden
Daniels, Assistant Warden Johnson, Doctor Gary Allred; Nurses
Andreis and Serby, Health Services Administrator Collins, and
Physician Assistant Brad Cink) of the United States Penitentiary,
Florence, Colorado (USP-Florence).
Twelve (12) officials including Warden Cozza-Rhodes, exWarden Julie Wands, Unit Manager Tucker, Lieutenants Young, Bond,
and Martin, Captain Klein, Hill, Quintana, Maditch, and
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Correctional Officers Sutton and Chapman of the Federal
Correctional Institution, Florence, Colorado (FCI-Florence) are
also listed as being Defendants.
Plaintiffs are additionally proceeding against Warden David
Ebbert, Mail Room Supervisor Trently, and Doctor Walter Dobushek of
the Canaan United States Penitentiary, Waymart Pennsylvania (USPCanaan).
Doctor Gary Ulrich, a contract physician at the United
States Penitentiary of Terre Haute, Indiana (USP-Terre Haute) is
also named as a Defendant
The Amended Complaint raises multiple claims of deliberate
indifference to Perotti’s medical problems during his prior
confinement at USP-Canaan as well as the other listed federal
correctional facilities.
It is also alleged that the Plaintiffs
were prevented from corresponding with one another in violation of
their right of access to the courts.
The claims do not arise out
of the same occurrence and are the most part are unrelated to one
another.
The Individual Defendants responded to the Amended Complaint
by filing a motion to dismiss or in the alternative for summary
judgment.
See Doc.
66.
Defendant United States of America has
filed a separate motion to dismiss or in the alternative for
summary judgment.
See Doc. 67.
Both motions have been opposed and
are ripe for consideration.
Discussion
Venue
Both of the pending motions raise improper venue arguments
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similarly asserting that almost all of the Plaintiffs’ allegations
are based upon occurrences which transpired outside of this
district and as such are subject to dismissal.
Alternatively, both
motions ask that those allegations should be transferred to a more
appropriate judicial district.
See Doc. 78, p. 16.
Federal Rule of Civil Procedure 12(b)(3) allows a defendant
to raise the defense of improper venue via submission of a motion.
The Bivens portion of the Amended Complaint seeks monetary damages
against the Defendants in their individual capacities.
pp. 3-4.
See Doc. 7,
In Micklus v. Carlson, 632 F.2d 227, 240-41 (3d Cir.
1980), the Court of Appeals for the Third Circuit recognized that
under Stafford v. Briggs, 444 U.S. 527 (1980), the provisions of 28
U.S.C. § 1391(e)1 are inapplicable to claims for monetary damages
against federal officials when the individual officeholder may be
1.
§ 1391(e) provides 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 or under color of
legal authority, or an agency of the United States,
or the United States, 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 a substantial part of
property that is the subject of the action is
situated, or (C) the plaintiff resides if no real
property is involved in the action. Additional
persons may be joined as parties to any such action
in accordance with the Federal Rules of Civil
Procedure and with such other venue requirements as
would be applicable if the United States or one of
its officers, employees, or agencies were not a
party.
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found personally liable.2
See also
Robinson v. Weiss, Civ. A. 99-
3964, 2000 WL 231905 *2-3 (E.D. Pa. Feb. 18, 2000)(venue provisions
of § 1391(e) do not apply to actions for money damages against
federal officials in their personal capacities).
The pertinent statutory provision concerning the proper
federal court in which a Bivens lawsuit may be brought, 28 U.S.C. §
1391(b), provides that “[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 that is the subject of the action is situated; or (3)
if there is no district in which an action may be otherwise 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.
This action is not based upon diversity of citizenship
jurisdiction, and it is apparent that with the exception of
Defendant Bond, none of the FCI-Florence, USP-Florence, and USPTerre Haute officials named as Defendants in the Amended Complaint
reside within the Commonwealth of Pennsylvania.3
There is nothing
2. The Court of Appeals in Micklus explained that if § 1391(e)
could be employed in actions for money damages against federal
officials individually, such defendants “solely by reason of their
government service” would be placed “in a very different posture in
personal damage suits from that of all other persons.” Id. at 491.
3.
The Individual Defendants acknowledge that FCI-Florence
(continued...)
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to indicate that the FCI-Florence, USP-Florence, and USP-Terre
Haute Defendants purposefully directed their activities to
Pennsylvania or can otherwise be found in Pennsylvania as
contemplated under 28 U.S.C. § 1391(b)(3).
Moreover, none of the
events giving rise to Plaintiffs’ claims against those Defendants
occurred in the Middle District of Pennsylvania.
Defendants’ pending motions also similarly seek relief
under Federal Rule of civil procedure 12(b)(2) on the grounds that
this Court lacks personal jurisdiction over all but one of the FCIFlorence, USP-Florence, and USP-Terre Haute Defendants.
See Doc.
78, p. 20. There are no facts from which it can be inferred that
those Defendants are subject to personal jurisdiction in
Pennsylvania.
As explained in Trujillo v. Williams, 465 F.3d 1210,
1217-18 (10th Cir. 2006):
The exercise of jurisdiction over a nonresident defendant
comports with due process “‘so long as there exists minimum
contacts between the defendant and the forum State.’” The
minimum contacts necessary for specific personal
jurisdiction may not established where the “defendant has
‘purposefully directed’ its activities toward the forum
jurisdiction and where the underlying action is based upon
activities that arise out of or relate to the defendant’s
contacts with the forum.”
There is nothing to indicate that any of the FCI-Florence,
USP-Florence, and USP-Terre Haute Defendants (with the exception of
Bond) purposefully directed their activities to Pennsylvania or can
otherwise be found in Pennsylvania.
There is also no suggestion
3. (...continued)
Defendant Bond moved to the Commonwealth of Pennsylvania in October
2011 to begin a tour of duty at FCI-Schuylkill. See Doc. 79, ¶
268.
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that Plaintiffs’ claims are based upon activities that arise out of
or are related to those Defendants’ contacts with Pennsylvania.
Since Plaintiffs’ pending action seeks compensatory damages
against the Individual Defendants in their individual capacities,
under the requirements of § 1391(b), Plaintiffs cannot maintain an
action against those officials in this Court.
See Greer v.
Safeway, No. 09-4007, 2009 WL 754769 (10th Cir. March 24, 2009)
(affirming sua sponte dismissal of in forma pauperis action where
it was clear that defendants were not subject to personal
jurisdiction in Utah); Trujillo, 465 F.3d at 1217 (affirming
authority of court to dismiss action where absence of personal
jurisdiction is obvious).
Consequently, this court agrees with the Defendants’ pending
respective motions and concurs that venue does not lie in this
Court with respect to the claims against the FCI-Florence, USPFlorence, and USP-Terre Haute Defendants.4
With respect to the FTCA claim venue is only proper where
the plainfiff resides or wherein the act or omission complained of
occurred.
See 28 U.S.C. § 1402(b).
resides in Pennsylvania.
Neither Plaintiff currently
There is also no idication that either
Plaintiff resided in Pennsylvania prior to their respective
incarcerations.
Accordingly, venue in this Court is improper with
4. Both motions also assert that the joinder of the claims raised
in the Amended Complaint violates Federal Rule of civil Procedure
20. In light of the Court’s decision herein, said argument will
not be addressed.
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respect to the FTCA claims relating to conduct which transpired at
FCI-Florence, USP-Florence, and USP-Terre Haute.
A court may transfer any civil action for the convenience of
the parties or witnesses, or in the interest of justice, to any
district where the action might have been brought. 28 U.S.C. §
1404(a).
In accordance with the discussion herein the Court will
grant the Defendants’ request that the claims against the FCIFlorence, USP-Florence, and USP-Terre Haute Defendants or relating
to events which transpired at those facilities be transferred to an
appropriate district court.
Specifically, the claims against the FCI-Florence and USPFlorence Individual Defendants as well as the FTCA claims arising
out of the Plaintiffs’ confinements at those facilities will be
transferred to the United States District Court for the District of
Colorado pursuant to § 1404(a).
In addition the claims against the
Individual USP-Terre Haute Defendant and FTCA claims relating to
actions which took place at that prison will be transferred to the
United States District Court for the Southern District of Indiana
pursuant to § 1404(a).
Amend Complaint
In light of the decision to transfer the majority of the
Plaintiffs’ claims and due to the length and recitation of
unnecessary factual information set forth in the Amended Complaint,
the fair administration of justice would be best served by
directing Plaintiffs to submit an amended complaint in this Court
solely regarding their claims against the USP-Canaan Individual
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Defendants and any FTCA claim stemming from confinement in that
facility.
With respect to the surviving USP-Canaan related claims,,
The amended complaint should provide a brief factually specific
description of each surviving alleged unconstitutional or negligent
act including the date the mistreatment occurred and identifying by
name which USP-Canaan Defendants were involved.
Plaintiffs will be directed to file an amended complaint of
no more then twenty-five (25) pages in length, which states each of
their surviving claims against the USP-Canaan Defendants in a clear
and concise manner; specifically identifies all USP-Canaan
Defendants, and states the relief they are seeking.
v. Cuomo, 861 F.2d 40 (2d Cir. 1988).
See Salahuddin
The Plaintiffs are advised
that in order to state a viable civil rights claim they must make a
showing that the conduct complained of was committed by a person
acting under color of law and that said conduct deprived him of a
right, privilege, or immunity secured by the Constitution or by a
statute of the United States.
Cohen v. City of Philadelphia, 736
F.2d 81, 83, cert. denied, 469 U.S. 1019 (1984).
A prerequisite for a viable civil rights claim is that a
defendant directed, or knew of and acquiesced in, the deprivation
of his constitutional rights.
Monell v. Department of Social Serv.
of the City of N.Y., 436 U.S. 658, 694-95 (1978); Gay v. Petsock,
917 F.2d 768, 771 (3d Cir. 1990); Capone v. Marinelli, 868 F.2d
102, 106 n.7 (3d Cir. 1989).
requirement.
This is the personal involvement
Civil rights liability may not be imposed on the
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principle of respondeat superior.
Capone v. Marinelli, 868 F.2d at
106 (citing Hampton v. Holmesburg Prison Officials, 546 F.2d 1077,
1082 (3d Cir. 1976)).
Plaintiffs are also reminded that their Amended Complaint
must be complete in all respects.
It must be a new pleading which
stands by itself without reference to the Original or Amended
Complaints previously filed in this matter.
The amended complaint
should only include Plaintiff's surviving USP-Canaan related claims
which should be set forth in short, concise and legible statements.
It should specify which actions are alleged as to which USP-Canaan
Defendants.
Failure of the Plaintiffs to timely submit an amended
complaint which complies with the standards set forth herein or
otherwise respond to this Order will result in dismissal of their
action for failure to prosecute.
An appropriate Order will enter.
Dated: March 9, 2015
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
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