Peel v. United States Government, United States of America designee et al

Filing 26

OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; granting 18 Motion to Dismiss for Lack of Jurisdiction; denying 20 Motion for Summary Judgment (vah, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JAMES PEEL, SR.,
Plaintiff,
vs.
UNITED STATES, et al.,
Defendants.

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Case No. 13-CV-95-TCK-TLW

OPINION AND ORDER
Before the Court are the Motion to Dismiss by Defendants Marty Anderson, D. Weskamp,
Sarah Bullock, and the United States of America (Doc. 18)1 and Plaintiff’s Motion for Summary
Judgment (Doc. 19).
I.

Background
Plaintiff James Peel, Sr. filed his Complaint (Doc. 1) on February 14, 2013, pursuant to

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In his
Complaint, Plaintiff alleges that Defendants violated his civil rights while he was serving a fifteenmonth sentence at the United States Medical Center for Federal Prisoners (“USMCFP”) in
Springfield, Missouri.

Plaintiff named the following as defendants: (1) the United States

government; (2) Marty Anderson, former warden of USMCFP (“Anderson”); (3) D. Weskamp, the
Nursing Supervisor in the Dialysis Unit at USMCFP (“Weskamp”); (4) five unknown dialysis

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The Motion to Dismiss was filed on behalf of the United States, Anderson, Weskamp,
and Bullock. In their Motion, Defendants state that “[b]ecause the remaining Defendants have
not been adequately identified or served in this matter, the Motion is not a response on their
behalf.” (Mot. 2.) For purposes of this Opinion and Order, “Defendants” refers to the group of
defendants who have moved to dismiss Plaintiff’s Complaint.

technicians, including Ms. Bullock (“Bullock”), Mr. Jerico, and “Black lady;”(5) an unknown
Sargent; and (6) USMCFP.
Defendants move to dismiss Plaintiff’s complaint on eight grounds: (1) failure to effectuate
service of process; (2) lack of personal jurisdiction; (3) inappropriate venue; (4) sovereign
immunity; (5) immunity from Bivens liability; (6) inapplicability of respondeat superior; (7) no
violation of Constitutional rights; and (8) qualified immunity.2 In his response to Defendants’
Motion to Dismiss, Plaintiff also requests that the Court grant summary judgment in his favor. (See
Doc. 19.)
II.

Defendants’ Motion
The Court lacks personal jurisdiction over the Defendants and they have not been properly

served. In addition, the Complaint is subject to dismissal due to improper venue.
A.

Personal Jurisdiction

Defendants’ motion challenges whether this Court has personal jurisdiction over Defendants
Anderson, Bullock, and Weskamp. Plaintiff bears the burden of proving jurisdiction exists. AST
Sports Sci., Inc. v. CLF Distrib., Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008).
To determine whether a federal court has personal jurisdiction over a defendant in a federal
question case, the Court must consider: “(1) whether the applicable statute potentially confers
jurisdiction by authorizing service of process on the defendant and (2) whether the exercise of
jurisdiction comports with due process.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006)
(citing Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1209 (10th Cir. 2000)). No statute

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For the reasons set forth below, the Court need only reach Defendants’ first three
grounds for dismissal.
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confers nationwide service of process in a Bivens action. Johnson v. Lappin, No. 10-cv-02235-REBCBS, 2011 WL 1656790, at *6 (D. Colo. May 2, 2011). In the absence of a specific federal statute
governing personal jurisdiction, Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure refers
courts to the jurisdictional statute of the forum state. Oklahoma’s long-arm statute “authorizes
jurisdiction coextensive with the Due Process Clause.” United States v. Bigford, 365 F.3d 859, 873
n.11 (10th Cir. 2004); Williams v. Bowman Livestock Equip. Co., 927 F.2d 1128, 1131 (10th Cir.
1991) (“Therefore, if jurisdiction is consistent with the Due Process Clause, Oklahoma’s long arm
statute authorizes jurisdiction over a non-resident defendant.”); Okla. Stat. tit 12, § 2004(F) (“A
court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state
and the Constitution of the United States.”).
The exercise of jurisdiction over a non-resident defendant comports with Due Process “‘so
long as there exist minimum contacts between the defendant and the forum State.’” Intercon v. Bell
Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000) (quoting World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 291 (1980)). The necessary minimum contacts exist 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.” Trujillo, 465 F.3d at 1218 (quoting In re Application to Enforce Admin. Subpoenas
Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 418 (10th Cir. 1996)).3

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The minimum contacts standard is also satisfied where a defendant has “continuous and
systematic” general business contacts with the forum state. Id. at 1218 n.7 (citing Helicopteros
Nacionales v. Hall, 466 U.S. 408, 415 (1984)). Where the defendant has continuous and
systematic contacts with the forum state, a court may maintain general jurisdiction over a nonresident defendant. Id. Nothing in Plaintiff’s complaint suggests that Anderson, Bullock, or
Weskamp were engaged in continuous and systematic activity in Oklahoma, nor does the Court
believe he could allege such facts. Accordingly, general personal jurisdiction on such basis is
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There are no allegations in Plaintiff’s Complaint which demonstrate that this Court’s exercise
of jurisdiction over Anderson, Bullock, or Weskamp, all residents of the state of Missouri, would
satisfy the requirements of the Due Process Clause. In his Complaint, Plaintiff concedes that each
of these Defendants is a “citizen of Missouri.” Plaintiff has alleged no facts which suggest that
Anderson, Bullock, or Weskamp have purposefully directed any activities toward this jurisdiction
or that Plaintiff’s claims are based upon activities that arise our of or relate to any contacts with
Oklahoma. Moreover, given that Plaintiff’s claims arise from his incarceration at USMCFP in
Springfield, Missouri, it is not plausible that Plaintiff could allege facts sufficient to support such
a conclusion.4 Accordingly, Plaintiff has failed to prove this Court has personal jurisdiction over
Defendants Anderson, Bullock, and Weskamp.
A court may sua sponte cure venue and jurisdictional defects by transferring a suit pursuant
to the federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when it is in the interests of justice.
Although both sections contain the word “shall,” the Tenth Circuit has “interpreted the phrase ‘if
it is in the interest of justice’ to grant the district court discretion in making a decision to transfer an
action or instead to dismiss the action without prejudice.” Id. at 1222-23. The factors a court should
consider are whether “the new action would be time-barred;” whether “the claims are likely to have

lacking.
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In his response to Defendants’ motion, Plaintiff discusses subject matter jurisdiction,
which is wholly separate from personal jurisdiction. In support of this Court’s jurisdiction,
Defendant argues that “[t]he Defendants are not ‘far away’ and that the Plaintiff is disabled and
needs dialysis treatment 3x’s a week and it would be more of a burden on the Plaintiff, than the
Defendants, to travel out of town for Court. This should be factored into the Court’s decision.”
(Resp. 6.) As set forth above, the standard for personal jurisdiction does not consider the
convenience of the parties.
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merit;” and whether the original action was filed after the plaintiff should have realized the chosen
forum was improper. Id. at 1223 n. 16.
In the present case, the factors weigh in favor of dismissal as opposed to transfer. If Plaintiff
were to file a new action in Missouri, such action would not be time-barred. A Bivens action is
subject to the limitation period set by the personal injury statute in the state where the cause of
action accrues. Roberts v. Barreras, 484 F.3d 1236, 1238 (10th Cir. 2007). Plaintiff’s cause of
action accrued in Missouri while he was incarcerated at USMCFP, beginning in 2010. Missouri has
a five-year statute of limitations. See 35 Mo. Stat. Ann. 516.120. On their face, Plaintiff’s claims
do not appear to have merit, and Plaintiff should have realized before he filed this action that the
Northern District of Oklahoma was not appropriate. Accordingly, the Court dismisses Plaintiff’s
Complaint without prejudice.
B.

Venue

Defendants also challenge whether venue is appropriate in the Northern District of
Oklahoma. Pursuant to 28 U.S.C. § 1391(b), 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 any 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.
See also Stafford v. Briggs, 444 U.S. 527, 544-45 (1980) (applying § 1391(b) to a Bivens suit).
Plaintiff’s Complaint does not allege any facts which suggest venue is proper in this Court
under Section 1391(b). Plaintiff and Defendants agree that Defendants Anderson, Bullock, and
Weskamp reside in Missouri and that all of the events giving rise to Plaintiff’s claims occurred in
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Missouri at USMCFP. (See Mot. 2; Compl. 2.) No prong of section 1391(b) permits this action to
be brought in the Northern District of Oklahoma. Therefore, venue is not proper in this Court.
C.

Service of Process

Defendants also argue that Plaintiff’s Complaint must be dismissed without prejudice for
failure to effectuate service of process. Rule 4(i) of the Federal Rules of Civil Procedure sets
forth the procedure for service of process upon the United States, its agencies, corporations,
officers, or employees. To serve the United States, a plaintiff must: (1) deliver a copy of the
summons and complaint to the United States attorney for the district where the action is brought
or send a copy by registered or certified mail to the civil-process clerk at the U.S. attorney’s
office; and (2) send a copy of the summons and complaint by registered or certified mail to the
Attorney General of the United States in Washington, D.C. Fed. R. Civ. P. 4(i)(1). To serve an
agency or corporation of the United States or an officer or employee in an official capacity, a
plaintiff must serve the United States (as described above) and also send of the summons and
complaint by registered or certified mail to the agency, corporation, officer, or employee. Fed.
R. Civ. P. 4(i)(2). Finally, an officer or employee of the United States sued only in an individual
capacity may be served by serving the United States and also serving the officer or employee in
accordance with Rule 4(e), (f), or (g). Fed. R. Civ. P. 4(i)(3).
Defendants Anderson, Bullock, Weskamp, the United States, and USMCFP claim they
have not been served in accordance with Rule 4. Plaintiff has not provided proof of service on
any of these Defendants. Rule 4(l) requires Plaintiff to make proof of service to the court. In
his response to Defendants’ motion, Plaintiff does not Defendants’ contentions regarding service
of process. Pursuant to Rule 4(m), the Court dismisses Plaintiff’s claims against Defendants

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Anderson, Bullock, Weskamp, the United States, and USMCFP for failure to effectuate service
of process within 120 days after filing of the Complaint.
V.

Conclusion
Defendants’ Motion to Dismiss (Doc. 18) is GRANTED. Plaintiff’s Complaint is

dismissed without prejudice as to all defendants. Because the Court grants Defendants’ Motion
to Dismiss and dismisses Plaintiff’s Complaint without prejudice, Plaintiff’s Motion for
Summary Judgment (Doc. 19) is DENIED.
IT IS SO ORDERED this 20th day of December, 2013.

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