Diaz-Torres v. Chapa et al
Filing
10
MEMORANDUM OPINION AND ORDER by District Judge James O. Browning ordering the Clerk of the Court to transfer this action to the United States District Court for the Western District of Texas, El Paso Division. (kdh)[Transferred from New Mexico on 3/31/2015.]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARCO ANTONIO DIAZ-TORRES,
Plaintiff,
vs.
No. CIV 14-0902 JB/KK
WARDEN MS. CHAPA, LA TUNA FACILITY,
FNU ZEDILLO, UNIT MANAGER,
MEDICAL DIRECTOR: ALLTENBERGH,
DOCTOR: JOSE ENRIQUES,
CONTRACTOR SPECIALIST DOCTOR
LLAMA, JOHN DOES, NURSES,
PHYSICIAN ASSISTANTS, TECHS,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court under 28 U.S.C. §§ 1391(b), 1406(a), and
1915(e)(2) and rule 12(b)(6) of the Federal Rules of Civil Procedure, on the Prisoner‟s Civil Rights
Complaint, October 3, 2014 (Doc. 1)(“Complaint”). Diaz-Torres was incarcerated when he filed
his Complaint, and he appears pro se and is proceeding in forma pauperis. He asserts that the
Court has jurisdiction over the Complaint under 42 U.S.C. § 1983 or Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), as well as the “„Fed Tort
Claim Act‟ if applicable.” For reasons set out below, the Court will transfer Diaz-Torres‟
Complaint, and case, to the United States District Court for the Western District of Texas.
The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under
§ 1915(e)(2) “at any time if the action . . . is frivolous or malicious; [or] fails to state a claim upon
which relief may be granted.” The Court also may dismiss a complaint sua sponte under rule
12(b)(6) for failure to state a claim if “it is „patently obvious‟ that the plaintiff could not prevail on
the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Hall
v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)(quoting McKinney v. Okla. Dep‟t of Human
Servs., 925 F.2d 363, 365 (10th Cir. 1991)). Under 28 U.S.C. §§ 1915, 1406(a), and 1631, the
Court has the discretion to dismiss or transfer an inmate complaint sua sponte for improper venue.
See Trujillo v. Williams, 465 F.3d 1210, 1217, 1222 (10th Cir. 2006); Taylor v. Tulsa Welding
School, No. 14-5093, slip op. at 4, 9 (10th Cir. Mar. 17, 2015); Guy v. U.S. Dep‟t of Defense, No.
CIV 12-1520 UNA, slip op. (D.D.C. Oct. 26, 2012). A plaintiff must allege “enough facts to state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). In reviewing the Complaint, the Court applies the same legal standards applicable to
pleadings that counsel drafts, but liberally construes the allegations. See Northington v. Jackson,
973 F.2d 1518, 1520-21 (10th Cir. 1992).
The Complaint alleges that, during the time of Diaz-Torres‟ incarceration at FCI La Tuna,
officials transported him to an outside private clinic to undergo eye surgery. While he was
recovering at La Tuna, certain Defendants caused him to be transferred to another federal facility
in Big Springs, Texas. Diaz-Torres alleges that these Defendants effected his transfer before he
had adequately recovered, and failed to forward his medical records and treatment information.
He asserts that the Defendants‟ actions reflect their deliberate indifference to his serious medical
condition and caused him to lose his right eye. The Complaint seeks damages and certain
equitable relief.
As the Court has noted above, when Diaz-Torres filed the Complaint, he was confined at
FCI La Tuna, which is located within the boundaries of the Western District of Texas. See
http://www.bop.gov/locations/institutions/lat/ (last visited Mar. 16, 2015); United States v. Cleto,
956 F.2d 83, 84 (5th Cir. 1992)(per curiam)(noting that FCI La Tuna‟s location in the Western
-2-
District of Texas). Furthermore, the Complaint does not allege that any Defendant resides in the
District of New Mexico or that any of the alleged events occurred in this District. Venue of this
action, therefore, is improper in this District. See 28 U.S.C. § 1391(b). See also Taylor v. Tulsa
Welding Sch., No. 14-5093, slip op. at 3 n.3, 8 (10th Cir. Mar. 17, 2015) (affirming finding of
improper venue “for the alleged § 1983 violations occurring outside of the [district]”); Flanagan v.
Shively, 783 F. Supp. 922, 935 (M.D. Pa. 1992), aff‟d, 980 F.2d 722 (3d Cir. 1992); Robinson v.
Love, 155 F.R.D. 535, 536 n.1 (E.D. Pa. 1994). Under these circumstances, the Court can
transfer the Complaint to the United States District Court for the Western District of Texas under
28 U.S.C. § 1406(a), see Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1520-21
(10th Cir. 1991), or dismiss the Complaint without prejudice, see Taylor v. Tulsa Welding School,
slip op. at 4, 9; Brown v. California Dep‟t of Corr., No. CIV 03-2526 CRB/PR, 2003 WL
21321362, at *1 (N.D. Cal. June 4, 2003); Robinson v. Love, 155 F.R.D. at 536 n.1.
The Court must consider “the interest of justice,” 28 U.S.C. §§ 1406(a), 1631, in deciding
whether to transfer or dismiss a complaint. The United States Court of Appeals for the Tenth
Circuit has noted several factors that the Court must weigh before making this decision. See
Trujillo v. Williams, 465 F.3d 1223 n.16. The first of these factors is whether a new complaint on
Diaz-Torres‟ claims filed in the proper venue would be time barred at this point. See Haugh v.
Booker, 210 F.3d 1147, 1150 (10th Cir. 2000). It appears in attachments to the Complaint that
Diaz-Torres‟ treatment began in 2012, and he was transferred to Big Springs in 2013. The Court
finds that this factor weighs in favor of transfer to avoid a possible limitations bar of Diaz-Torres‟
claims.
Another factor is whether Diaz-Torres‟ claims against the non-resident defendants “are
likely to have merit.” Trujillo v. Williams, 465 F.3d at 1223 n.16; Haugh v. Booker, 210 F.3d at
-3-
1150 n.4. Diaz-Torres alleges that the Texas Defendants, by their deliberate indifference to his
serious medical condition, caused him to lose his right eye. The Court expresses no opinion as to
the ultimate disposition of Diaz-Torres‟s claims, but his allegations survive scrutiny under
§ 1915(e)(2) and rule 12(b)(6).
A third factor is whether Diaz-Torres filed the Complaint against the Texas Defendants in
good faith. See Trujillo v. Williams, 465 F.3d at 1223 n.16; Trierweiler v. Croxton & Trench
Holding Co., 90 F.3d 1523, 1544 (10th Cir. 1996). Notwithstanding his misunderstanding of
venue rules, nothing in the Complaint indicates that Diaz-Torres lacked good faith in filing his
claims in this Court. The Court notes that more than one United States District Court has
transferred to this District claims arising from events at FCI La Tuna. See, e.g., Springer v.
United States, No. CIV 14-0655 KG/CEG Doc. 3 (D.N.M. July 17, 2014). The Trujillo v.
Williams factors weigh in favor of transferring rather than dismissing the Complaint. Therefore,
in the interest of justice, see 28 U.S.C. §§ 1406(a), 1631, the Court will order that this action be
transferred to the United States District Court for the Western District of Texas.
IT IS ORDERED that the Clerk is directed to transfer this action to the United States
District Court for the Western District of Texas, El Paso Division.
________________________________
UNITED STATES DISTRICT JUDGE
Party:
Marco Antonio Diaz-Torres
Rio Rico, Arizona
Plaintiff pro se
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?