Harrison v. Federal Bureau of Prisons et al
Filing
20
OPINION. Signed by Judge Renee Marie Bumb on 6/20/2018. (rtm, ) [Transferred from New Jersey on 6/22/2018.]
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JONATHAN HARRISON,
Civ. No. 17-4296 (RMB)
Plaintiff,
v.
OPINION
FEDERAL BUREAU OF PRISONS, et
al.,
Defendants.
This matter comes before the Court upon Plaintiff’s motions
to appoint pro bono counsel in this FTCA action, (Mot. to Appoint
Pro Bono Counsel, ECF Nos. 8 and 18), and the parties’ responses
to this Court’s order to show cause why venue should not be
transferred to the United States District Court, District of South
Carolina or United States District Court, Middle District of
Pennsylvania, pursuant to 28 U.S.C. § 1404(a). (Opinion and Order,
ECF Nos. 2, 3.)
I.
BACKGROUND
On October 23, 2017, this Court screened Plaintiff’s FTCA
action pursuant to 28 U.S.C. §§ 1915A, and 1915(e)(2)(B), and
permitted Plaintiff’s FTCA claim to proceed only against the United
States as defendant.
(Opinion and Order, ECF Nos. 2, 3.)
Noting
that an FTCA claim “may be prosecuted only in the judicial district
where
the
plaintiff
resides
or
wherein
the
act
or
omission
complained of occurred” and that “all of the alleged negligence
occurred in Allenwood, Pennsylvania and Estill, South Carolina,”
this Court required the parties to show cause why the case should
not be transferred to the Middle District of Pennsylvania or the
District of South Carolina.
(Opinion and Order, ECF Nos. 2, 3.)
Upon service of the summons and complaint, Defendant filed a
motion to dismiss or in the alternative to transfer to the District
of South Carolina.
(Def’s Mot to Dismiss, ECF No. 13.)
In support
of the alternative motion to transfer to the District of South
Carolina, Defendant submits that although Plaintiff is currently
incarcerated in New Jersey, the alleged acts or omissions giving
rise
to
the
exhausted
FTCA
claim1
occurred
incarcerated in FCI Estill, South Carolina.
13-1 at 19.)
while
he
was
(Def’s Brief, ECF No.
Plaintiff’s current residence is the only connection
between this action and New Jersey. (Id.)
The claim arose in South Carolina and nearly all the witnesses
reside there.
(Id.) Due to the distance between New Jersey and
South Carolina, Federal Rule of Civil Procedure 45(c)2 may render
1
Defendant submitted a copy of Plaintiff’s FTCA claim form and
the response to that claim by the Federal Bureau of Prisons.
(Declaration of Amy Williams (“Williams Decl.,”) ECF No. 13-2,
¶¶8, 9; Exhibits to Williams Decl., ECF No. 13-3.)
2
Federal Rule of Civil Procedure 45(c)(1)(A), regarding the place
for compliance to a subpoena, provides, “(1) For a Trial, Hearing,
or Deposition. A subpoena may command a person to attend a trial,
hearing, or deposition only as follows: (A) within 100 miles of
2
certain witnesses unavailable for trial.
(Def’s Brief, ECF No.
13-1 at 19.) Additionally, the District of South Carolina more
regularly
applies
substantive
South
Carolina
tort
law,
which
Defendant maintains will apply to the FTCA claim. (Id.) There is
also a public interest in adjudicating local controversies where
they arise. (Id.) Thus, for the convenience of witnesses and in
the interest of justice, Defendant asserts that this action (if
not dismissed) should be transferred to the District of South
Carolina). (Id. at 20.)
Plaintiff filed an opposition to the motion to transfer. (Pl’s
Opp. to Mot. to Transfer, ECF No. 17.) Plaintiff asserts that he
resides in this judicial district, and his choice of forum “should
not be disturbed unless the balance of convenience is strongly in
favor of the party seeking transfer.”
(Pl’s Opp. to Mot. to
Transfer, ECF No. 17 at 1.)
Plaintiff notes that all facts occurring after November 2016
that are alleged in the complaint arose in this judicial district,
and virtually all treatment for his injury occurred in this
district. (Id. at 2.) Plaintiff, however, states his vision loss,
“the principal injury that is the subject of this suite [sic]
occurred in Estill, South Carolina, 2 years after Plaintiff had
left White Deer, Pennsylvania.” (Id.) However, Plaintiff then
where the person resides, is employed, or regularly transacts
business in person; …”
3
states, “the principal acts and omissions actually in dispute in
this action occurred in this district.”
(Pl’s Opp. to Mot. to
Transfer, ECF No. 17 at 2.)
Plaintiff further contends that he will call as witnesses two
or three New Jersey doctors who have subsequently treated his eye
injury. (Pl’s Opp. to Mot. to Transfer, ECF No. 17 at 4-5; Exhibits
in Supp. of Pl’s Mot. in Opp. to Transfer, ECF No. 17 at 10-15.)
He
contends
that
travel
to
South
Carolina
is
prohibitively
expensive, making trial more convenient in New Jersey. (Id. at 46.) Plaintiff asserts that the expert Defendant will call resides
in White Deer, Pennsylvania. (Id. at 6.)
In reply, Defendant notes Plaintiff concedes the principal
injury that is the subject of this suit occurred in Estill, South
Carolina, and none of the employees involved with the injury are
in the District of New Jersey. (Def’s Reply, ECF No. 19.) Further,
Defendant suggests that Plaintiff may have mistakenly filed an
amended complaint in this action, adding new allegations that he
intended to file in a similar civil action in the Middle District
of Pennsylvania, in response to Defendant’s motion to dismiss filed
in that action on October 30, 2017.
(Id., citing Harrison v.
United States, 17cv01333 (M.D. Pa. Oct. 30, 2017, ECF No. 13.)
II.
DISCUSSION
Defendant appears to be correct that Plaintiff may have
mistakenly filed his motion for leave to amend the complaint in
4
this action although he had intended to file it in his Middle
District of Pennsylvania action. In his motion for leave to amend,
Plaintiff stated, “Plaintiff makes this motion at this time because
on October 30, 2017, defendant United States of America filed a
motion to dismiss this complaint …” (Pl’s Mot. For Leave to File
Am. Compl., ECF No. 14 at 2.) Defendant filed its motion to dismiss
the complaint in this action on March 19, 2018, whereas Defendant
filed a motion to dismiss the action in the Middle District of
Pennsylvania on October 30, 2017.3 The parties agree the Middle
District of Pennsylvania is not the most convenient venue for the
present action.
Upon screening Plaintiff’s complaint, this Court permitted
Plaintiff’s exhausted FTCA claim to proceed. (Opinion and Order,
ECF Nos. 2, 3.) Defendant has submitted Plaintiff’s FTCA claim and
the
Bureau
of
Prison’s
(“BOP”)
response
denying
the
claim.
(Declaration of Amy Williams (“Williams Decl.,”) ECF No. 13-2,
¶¶8, 9; Exhibits to Williams Decl., ECF No. 13-1 at 3.) The BOP
received Plaintiff’s FTCA claim on or about July 2016. (Williams
Decl., ECF No. 13-2, ¶8.) It is apparent that Plaintiff did not
exhaust any FTCA claims about medical treatment he received at FCI
Fort Dix in November 2016 or thereafter because he filed his claim
before that time. A court cannot entertain FTCA claims not fully
3
The docket of the action in the Middle District of Pennsylvania
is available at www.PACER.gov, Civil Action No. 17-1333.
5
exhausted at the administrative level. See Hoffenberg v. Provost,
154 F. App’x 307, 310 (3d Cir. 2005) (per curiam) (holding District
Court properly dismissed FTCA claim where administrative claim was
still pending before the BOP when the plaintiff filed suit in the
United States District Court.)
28 U.S.C. § 1404(a) provides, “[f]or 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 or to any district or division to
which all parties have consented.”
“there
is
no
definitive
The Third Circuit, recognizing
formula
or
list
of
the
factors
to
consider,” identified twelve public and private interests that may
be considered in weighing whether to transfer an action to another
district.
Jumara v. State Farm Ins., 55 F.3d 873, 879-80 (3d Cir.
1995). The public interest factors include: (1) the enforceability
of the judgment; (2) practical considerations that could make the
trial
easy,
expeditious,
or
inexpensive;
(3)
the
relative
administrative difficulty in the two fora resulting from court
congestion; (4) the local interest in deciding local controversies
at
home;
(5)
the
public
policies
of
the
fora;
and
(6)
the
familiarity of the trial judge with the applicable state law in
diversity cases. Id. at 879.
The private interest factors include: (1) the plaintiff’s
forum preference; (2) the defendant’s forum preference; (3) where
6
the claim arose; (4) the convenience of the parties as indicated
by
their
relative
physical
and
financial
condition;
(5)
the
convenience of the witnesses, but only to the extent they may be
unavailable for trial in one of the fora; and (6) the location of
books and records (similarly limited to the extent that they could
not be produced in the alternative forum). Jumara, 55 F.3d at 87980.
All events giving rise to the complaint and most witnesses
are in South Carolina; therefore, the ease or expense of trial
favors venue there. It is not known whether the administrative
difficulty
from
court
congestion
favors
New
Jersey
or
South
Carolina. Local interest and public policy favor litigating in
South
Carolina,
where
the
alleged
malpractice
occurred.
The
location of books and records favor litigation in South Carolina,
although presumably documents could be produced in either forum.
Overall, the public interest factors weigh more heavily in favor
of venue in South Carolina.
Plaintiff has chosen New Jersey as his choice of forum, which
is entitled to more weight than Defendant’s choice of South
Carolina.
However, the events giving rise to the suit occurred in
South Carolina, which is a factor favoring venue there.
Plaintiff would have to be transported to South Carolina for
trial, and he is less financially able to cover the cost than the
United States Government. On the other hand, the convenience of
7
the witnesses, to the extent they may be unavailable for trial
under the court’s subpoena power favors South Carolina. Presumably
the parties will retain experts who are willing to travel if
necessary. The court notes pro bono counsel may be appointed to
plaintiff in either forum, pursuant to 28 U.S.C. § 1915(e)(1).
III. CONCLUSION
When
all
factors,
public
and
private,
are
considered
together, they favor venue in South Carolina. Therefore, the Court
will transfer venue to South Carolina without deciding Defendant’s
motion to dismiss.4 An appropriate order follows.
Date:
June 20, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
4
The Court notes one of the factors favoring venue in South
Carolina is that Defendant asserts the complaint must be dismissed
pursuant to South Carolina’s substantive tort law, which is better
decided by a court in South Carolina.
8
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