Haverkamp v. Penn et al
MEMORANDUM OPINION AND ORDER DENYING MOTION TO TRANSFER VENUE denying 24 Opposed MOTION to Change Venue to USDC SOUTHERN DISTRICT HOUSTON DIVISION. (Signed by Magistrate Judge B Janice Ellington) Parties notified.(mserpa, 2)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DAVID ALLEN HAVERKAMP; aka
BOBBIE LEE HAVERKAMP,
JOSEPH PENN, et al,
May 19, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 2:17-CV-18
MEMORANDUM OPINION AND ORDER DENYING MOTION
TO TRANSFER VENUE
Plaintiff,1 proceeding pro se and in forma pauperis, is an inmate incarcerated at
the Stiles Unit of the Texas Department of Criminal Justice, Criminal Institutions
Division (“TDCJ”) in Beaumont, Texas. Plaintiff filed this lawsuit pursuant to 42 U.S.C.
§ 1983, complaining that she is discriminated against because she has been diagnosed
with a gender identity disorder, but medical officials are refusing to provide gender
reassignment surgery. (D.E. 1). Pending before the Court is Defendants’ Motion to
Transfer Venue. (D.E. 24). For the reasons discussed below, the motion is DENIED.
Plaintiff is “David Allen Haverkamp aka Bobbie Lee Haverkamp,” who is
currently incarcerated at the Stiles Unit in Beaumont, Texas. Plaintiff was convicted on
Plaintiff requests that the Court utilize feminine pronouns when referring to Plaintiff. (D.E. 2,
p. 1). The undersigned, therefore, will refer to Plaintiff in this Memorandum and Order as her
preferred gender of female, using feminine pronouns.
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August 4, 1994, on two counts of aggravated sexual assault and was sentenced to fortyfive (45) years in prison on each count to be served concurrently.
In her civil rights action filed on January 13, 2017, Plaintiff asserts a violation of
her constitutional rights under the Eighth and Fourteenth Amendments based on the
failure of the TDCJ to provide her with gender reassignment surgery for her Gender
Identity Disorder (GID). (D.E. 2, p. 17). Plaintiff has named Dr. Joseph Penn and Dr.
Lannette Linthicum as defendants in their individual and official capacities. (D.E. 2, pp.
2-3). Dr. Penn works for the University of Texas Medical Branch (“UTMB”) located in
Galveston, Texas, and resides in Galveston County, Texas. (D.E. 2, p. 2). Dr. Linthicum
works for the TDCJ in Huntsville, Texas, and resides in Montgomery County, Texas.
(D.E. 2, p. 2). Plaintiff seeks an injunction ordering Defendants to provide her with
gender reassignment surgery, and declaratory judgment affirming her rights to necessary
treatment and care under the Eight Amendment and to equal protection under the
Fourteenth Amendment. (D.E. 2, pp. 1, 17).
On April 10, 2017, pursuant to 28 U.S.C. § 1404(a), Defendants moved to transfer
this case to the Houston Division of the Southern District of Texas.
Defendants state that they are each members of the TDCJ’s Correctional Managed Health
Care (“CMHC”) committee, which is responsible for implementing policies regarding
GID. (D.E. 24, pp. 1-2). According to Defendants, “the committee operates out of
CMHC offices in Huntsville, Texas and Conroe, Texas.” (D.E. 24, p. 2). Defendants
argue that that the Houston Division is the appropriate venue for this case because: (1)
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Defendants and other CMHC committee members conduct business and reside in the
Huntsville and Conroe area; (2) the factual allegations arose in either Huntsville or
Conroe; and (3) potential witnesses in this case reside or conduct business in either
Huntsville or Conroe. (D.E. 24, p. 2).
Plaintiff opposes Defendants’ motion to transfer venue. (D.E. 29). Plaintiff
contends that her choice of forum should be given weight and that the events giving rise
to this action occurred within the Corpus Christi Division. (D.E. 29, pp. 2, 5). Plaintiff
further contends that she plans to call four witnesses on her behalf, that these witnesses
would have no problem traveling to Corpus Christi, and that she has no plans on calling
on any TDCJ correctional staff from the Houston area. (D.E., pp. 4-5).
STANDARD OF REVIEW FOR CONSIDERING “CONVENIENCE”
“[F]or the convenience of parties and witnesses” and “in the interest of justice,” a
district court may transfer any civil action to any other division where it might have been
brought. 28 U.S.C. § 1404(a). “The statute is intended to save time, energy, and money
while at the same time protecting litigants, witnesses, and the public against unnecessary
inconvenience.” Watson v. Fieldwood Energy Offshore, LLC, 181 F. Supp. 3d 402, 407
(S.D. Tex. 2016) (internal quotations and citation omitted).
A plaintiff’s choice of venue is generally accorded deference unless he files suit
outside of his home forum. Watson, 181 F. Supp. 3d at 407. However, when filing
outside of the home forum, such deference is diminished. Id. See also McCaskey v.
Continental Airlines, Inc., 133 F. Supp. 2d 514, 529 (S.D. Tex. 2001) (“[C]lose scrutiny
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is given to plaintiff’s choice of forum when the plaintiff does not live in the judicial
district in which plaintiff has filed suit.”). In this case, Plaintiff resides within the Eastern
District of Texas, and his decision to file in the Corpus Christi Division of the Southern
District of Texas is, therefore, not entitled deference. See Watson, 181 F. Supp. 3d at
A court should nevertheless decline to transfer a case where the inconvenience of
venue is shifted from one party to another. Id. at 407. “The movant bears the burden of
demonstrating a transfer of venue is warranted.” Spiegelberg v. Collegiate Licensing Co.,
402 F. Supp. 2d 786, 789 (S.D. Tex. 2005). This burden is significant, and a § 1404(a)
motion to transfer will only be granted if “the movant shows the transferee venue is
clearly more convenient.” In re Radmax, Ltd., 720 F.3d 285, 288 (5th Cir. 2013) (citing
to In re Volkswagen of Am., Inc. (“Volkswagen II”), 545 F.3d 304, 311 (5th Cir. 2008)
An array of “public and private interest factors are relevant when a court is
determining if a case should be transferred. Grant v. C.R. England, Inc., No. H-10-30649,
2011 WL 11203, at *4 (S.D. Tex. Jan. 3, 2011). The private interest factors are “(1) the
relative ease of access to sources of proof; (2) the availability of compulsory process to
secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and
(4) all other practical problems that make trial of a case easy, expeditious and
inexpensive.” Id. The public interest factors to consider are: “(1) the administrative
difficulties flowing from court congestion; (2) the local interest in having localized
interests decided at home; (3) the familiarity of the forum with the law that will govern
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the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the
application of foreign law.” Id. (quoting In re Volkswagen AG, 371 F.3d 201, 203 (5th
These public and private factors “apply as much to transfers between divisions of
the same district as to transfers from one district to another.” Radmax, 720 F.3d at 288.
They are “not necessarily exhaustive or exclusive ... [and] ‘none ... can be said to be of
dispositive weight.’” Volkswagen II, 545 F.3d at 315.
1. The Relative Ease of Access to Sources of Proof
Defendants contend that all relevant evidence and records are located at or near
the CMHC committee’s headquarters, which is located within the Houston Division.
(D.E. 24, p. 6). John Werner, a TDCJ Regional Director, testified that “the original
documents and records relevant to Plaintiff’s claims” can be found near the Houston
Division. (D.E. 24-1, ¶ 5).
Plaintiff appears to acknowledge that she may seek to discover “historical minutes
of the meetings” of the CMHC and other records located within the Houston Division.
(D.E. 29, p. 3).
She argues, however, that the main events underlying her claim,
consisting of her medical treatment and advice – occurred within the Corpus Christi
(D.E. 29, p. 5).
A review of the documents attached to Plaintiff’s
memorandum in support of her complaint reveals that she: (1) received medical treatment
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and advice for GID while confined at the McConnell Unit2 through late 2016; and (2)
filed her Step 1 and Step 2 grievances in the McConnell Unit before filing her federal
lawsuit. (D.E. 2).
Because the CMHC committee makes decisions about implementing its policies
within the Houston Division and Plaintiff admits she is interested in records located
within the same division, the undersigned assigns a slight advantage on this factor in
favor of transfer. However, given that Plaintiff also points to sources of proof located in
the Corpus Christi Division, this factor does not weigh heavily in favor of transfer.
The Availability of Compulsory Process to Secure the
Attendance of Witnesses
As to the availability of compulsory process for unwilling witnesses, both Plaintiff
and Defendants argue that certain witnesses will be outside of the 100-mile subpoena
power of the issuing court if this case is not heard in their preferred forum. 3 (D.E. 24,
pp.5-6; D.E. 29, pp. 4-5). Defendants, however, fail to name any specific witnesses they
plan to call, and instead suggest that most of the witnesses Plaintiff will likely call are all
located within the Houston Division. (D.E. 24, p. 6).
The McConnell Unit is located in Beeville, Texas, which is within the Corpus Christi Division.
According to Federal Rule of Civil Procedure 45, a subpoena may be served on any person
within the district of the issuing court—but the court’s subpoena power is limited with respect to
nonparty witnesses who work or reside more than 100 miles from the courthouse. Specifically,
Rule 45(c) states that an uncontrolled witness can be compelled to attend a trial, hearing, or
deposition “within 100 miles of where the person resides, is employed, or regularly transacts
business in person.” Fed. R. Civ. P. 45(c).
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Plaintiff responds that “Defendants cannot rely on the inconvenience to the
Plaintiff’s witnesses as a reason to transfer venue,” and states that she has “no plans to
call on TDCJ correctional staff from the Houston Division.” (D.E. 29, pp. 4-5). Without
knowing either the identity of witnesses either party plans to call or where each witness is
located relative to the automatic subpoena power of either the Houston Division or
Corpus Christi Division, the undersigned finds that this factor does not weigh in favor of
The Cost of Attendance for Willing Witnesses
“[I]t is the convenience of non-party witnesses, rather than that of party witnesses,
that is the more important factor and is accorded greater weight in a transfer of venue
analysis.” LeBouef v. Gulf Operators, Inc., 20 F. Supp. 2d 1057, 1060 (S.D. Tex. 1998).
Furthermore, “[t]he convenience of witnesses who are employees of the party seeking
transfer is entitled to less weight because that party will be able to compel their testimony
at trial.” Ternium International U.S.A. Corp. v. Consolidated Systems, Inc., No. 3:08CV-0816-G, 2009 WL 464953, at *4 (N.D. Tex. Feb. 24, 2009). “When key witnesses
must travel more than 100 miles, inconvenience to witnesses increases in direct
relationship to the distance to be traveled.” Volkswagen II, 545 F.3d at 317.
As to the cost of attendance for willing witnesses, Plaintiff states that she “intends
on calling about four [willing] witnesses,” who will “have no trouble with travel to
Corpus Christi, Texas.” (D.E. 29, p. 4). Defendants’ main argument in favor of transfer
rests on their contention that great cost will accrue to Defendants themselves, as well as
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to the TDCJ and the CMFC committee, if their employees and representatives are forced
to travel over 200 miles from either Conroe or Huntsville to the Corpus Christi Division
as opposed to less than 75 miles from these cities to the Houston Division. (Doc. 24, p.
5). While Plaintiff has stated her intent not to call any witnesses from Houston area,
Defendants have identified no potential non-party witnesses from either the TDCJ or the
CMHC committee. Neither party has identified potential witnesses with any specificity,
making analysis of costs of attendance difficult. Accordingly, while there may be a need
to call witnesses from the either Huntsville or Conroe in this case, the undersigned does
not find that this factor weighs heavily in favor of transfer.
All Other Practical Problems that Make Trial of a Case Easy,
Expeditious, and Inexpensive
Defendants cite Plaintiff’s current location at the Stiles Unit, which is only 85
miles from Houston as opposed to 291 miles from Corpus Christi, as further support for
their position that trying this case in Houston will result in substantial cost and time
savings. However, there is no guarantee that Plaintiff will remain incarcerated at the
same location throughout the course of this litigation. The undersigned concludes that
this factor does not weigh heavily in favor of transfer.4
The Public-Interest Factors
With regard to the public interest factors, Defendants only argue that Corpus
Christi has no local interest in this case and that burdening the local citizens with a jury
The undersigned notes that District Judge Hilda G. Tagle, is assigned to this case and that her
chambers are located in the Houston Division courthouse. To the extent that the parties appear
before Judge Tagle, Defendants’ concerns about cost may be alleviated should future court
proceedings before her be conducted in the Houston Division courthouse.
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trial is unfair. (D.E. 24, p. 7). Plaintiff counters that the events giving rise to her
constitutional claims occurred in the Corpus Christi Division during her stay at the
McConnell Unit and that the local citizens of this division should, therefore, be
concerned about these constitutional violations. (D.E. 29, p. 7).
Given that Plaintiff received medical care as to her GID and was subject to the
general policy pertaining to her disorder while she was housed in the McConnell Unit,
the local citizens residing within the Corpus Christi Division have a strong interest in this
case. The citizens residing within the Houston Division also have an interest in this
case’s outcome as the GID policies were implemented by the CMHC committee
consisting of Defendants and other members. Given the respective interests of the local
citizens in each division, the undersigned concludes that this factor does not weigh
heavily in favor of transfer.
As discussed above, the only factor that weighs slightly in favor of transfer to the
Houston Division is the location of relevant sources of proof. The more important factor
to consider, however, is the cost of attendance of non-party witnesses, and Defendants
have made no specific, compelling showing in favor of transfer.
otherwise identified no private or public factor as weighing heavily in favor of transfer.
Because it is Defendants’ burden to demonstrate that the transferee venue—the Houston
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Division-- is “clearly more convenient,” they have failed to meet their significant burden.
Accordingly, Defendants’ Motion to Transfer Venue (D.E. 24) is DENIED.
ORDERED this 19th day of May, 2017.
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE
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