White v. USA

Filing 86

MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 2/10/2020. (Opinion mailed to Pro Se Party via US Mail)(slt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
WILLIAM A. WHITE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CASE NO. 7:19CV00531
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Senior United States District Judge

Plaintiff William A. White, a federal inmate proceeding pro se, has sued the United States
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(a), 2671–2680. White filed his
multi-count, FTCA complaint in the United States District Court for the Southern District of
Illinois, the district in which he is currently confined. The factual allegations cover a time period
of nearly ten years and describe federal officials’ conduct at fifteen prisons, located in ten different
judicial districts. Ultimately, United States District Judge J. Phil Gilbert of the Southern District
of Illinois dismissed some counts on procedural grounds and denied the United States’ motion to
dismiss as to other counts about conduct that occurred in his district.1 Judge Gilbert then
transferred Counts 37–38, 41–42, and 47–48 to this court upon finding proper venue here under
28 U.S.C. § 1402(b), given White’s residence in the Western District of Virginia before his
incarceration. After review of the record, the court concludes that for the convenience of the
parties and in the interest of justice, under 28 U.S.C. § 1404(a), White’s remaining counts are
appropriately severed and transferred to the federal districts where the tortious conduct allegedly
occurred.

1

White’s FTCA case was referred to a magistrate judge, whose report and recommendation, ECF No. 70,
was adopted as supplemented by Judge Gilbert’s order over White’s objections, ECF No. 72. See White v. United
States, No. 3:17-CV-683, 2019 WL 4418579 (S.D. Ill. Apr. 22, 2019), report and recommendation adopted, No. 3:17CV-00683, 2019 WL 3315563 (S.D. Ill. July 24, 2019).

I.

BACKGROUND

In 2008, White was convicted in this district of witness tampering and making interstate
threats with the intent to injure, and was sentenced to thirty months in prison. The United States
Court of Appeals for the Fourth Circuit affirmed White’s conviction, but remanded the case for
resentencing. United States v. White, 670 F.3d 498 (4th Cir. 2012).2 Thereafter, the court
increased White’s sentence to thirty-three months. See Case No. 7:08-CR-00054, ECF No. 314
(W.D. Va. Oct. 25, 2012).
Also in 2008, White was tried in the United States District Court for the Northern District
of Illinois on a charge of soliciting a crime of violence against a juror. Although an anonymous
jury found White guilty of the offense, the district court entered a judgment of acquittal after the
verdict. The United States appealed. Ultimately, on October 26, 2012, the United States Court of
Appeals for the Seventh Circuit reversed and reinstated the conviction, and the trial court sentenced
White to forty-two months in prison. See United States v. White, 698 F.3d 1005, 1017 (7th Cir.
2012) (per curiam), cert. denied, 569 U.S. 913 (April 1, 2013); Case No. 1:08-CR-00851, ECF No.
210 (N.D. Ill. Feb. 20, 2013).
While the appeals in the Virginia and Illinois cases were pending, White was released from
custody in April 2011 to serve his period of supervised release on the conviction from this court.
Faced with the prospect of soon receiving substantially more prison time, White fled the country,
crossing the Mexican border in early May 2012. Mexican Federal Police apprehended White in
June 2012, and he was deported back to this district.

2

One of the Fourth Circuit’s legal rulings in White’s case was later abrogated in part by Elonis v. United
States, 575 U.S. 723 (2015), as recognized in United States v. White, 810 F.3d 212, 220 (4th Cir. 2016) (“Elonis
abrogates our prior holding that liability under § 875(c) can turn solely on how a recipient would interpret a statement,
without regard to whether the speaker intended it as a threat.”).

2

Thereafter, White was indicted and convicted in this court on four counts of extortionate
communications. In May 2014, the court sentenced him to ninety-two months in prison, to be
served consecutively to White’s sentence from the Northern District of Illinois, and his appeal was
unsuccessful. See United States v. White, 810 F.3d 212 (4th Cir. 2016), cert. denied 136 S. Ct.
1833 (May 2, 2016); Case No. 7:13-CR-00013, ECF No. 199 (W.D. Va. May 6, 2014).
White filed this FTCA action on June 30, 2017, in the Southern District of Illinois. That
court provided White with counsel to assist him in amending his unwieldy complaint.3 White’s
second amended FTCA complaint (“complaint”) alleges, generally, that during his incarceration
in federal prison facilities, employees of the Federal Bureau of Prisons (“BOP”) and the United
States Marshals Service (“USMS”) have “subjected [him] to torture through the use of restricted
environmental stimuli, isolation, [and] unnecessary use of ‘black box’ restraints.” Compl. ¶ 17,
ECF No. 49. The multiple individual claims incorporate the factual detail provided in paragraphs
16–73 of the complaint. The factual allegations indicate that various USMS employees transported
White between the facilities. See, e.g., id. at ¶ 57. Judge Gilbert dismissed all claims against the
USMS, based on White’s failure to complete the exhaustion of administrative remedies before
filing this action. Transf. Ord. 3, ECF No. 72. Thus, White’s claims concerning conditions during
his transport between facilities are not before this court. Judge Gilbert also dismissed as timebarred all claims concerning events that occurred before 2015. Id. at 2.
Pursuant to Judge Gilbert’s transfer order, before this court are three counts of intentional
infliction of emotional distress (“IIED”) and three counts of negligent infliction of emotional
distress (“NIED”). Each count covers conduct that allegedly occurred during brief time periods
when White was confined in each of the following prison facilities, in the custody and care of BOP

3

The Court expressly held that counsel was appointed only in the Southern District of Illinois case and that
counsel’s service would not transfer to this court with the severed counts. R&R 20, ECF No. 70.

3

employees: the United States Penitentiary (“USP”) Canaan, in Waymart, Pennsylvania; the
Federal Correctional Institution (“FCI”) Loretto, in Loretto, Pennsylvania, and the Federal
Transfer Center (“FTC”) Oklahoma, in Oklahoma City. See Compl. ¶¶ 17, 21–22, 62–66,
508–34, 558–84, and 629–53. For ease of reference, the court has prepared a table displaying the
time periods, prisons, and judicial districts relevant to each count.
Count Claim

Location & Time Period

Federal District

37

IIED

USP Canaan, Dec. 29, 2014 to Jan. 9, 2015

M.D. Pa.

38
41(a)

NIED
IIED

USP Canaan, Dec. 29, 2014 to Jan. 9, 2015
FCI Loretto, Jan. 9 to Feb. 20, 2015

M.D. Pa.
W.D. Pa.

41(b)

IIED

USP Canaan, Feb. 20 to Mar. 3, 2015

M.D. Pa.

42(a)

NIED

FCI Loretto, Jan. 9 to Feb. 20, 2015

W.D. Pa.

42(b)

NIED

USP Canaan, Feb. 20 to Mar. 3, 2015

M.D. Pa.

47

IIED

FTC Oklahoma, Apr. 21–30, 2015

W.D. Okla.

48

NIED

FTC Oklahoma, Apr. 21–30, 2015

W.D. Okla.

White contends that as a result of BOP employees’ allegedly intentional and negligent actions, he
has suffered emotional distress, mental anguish, post-traumatic stress disorder, personality
disorder, physical injury, and extreme pain, with lasting effects.
The United States moves the court to dismiss the case for improper venue in the Western
District, or in the alternative, to transfer the case to the federal districts where the alleged torts
occurred. White has responded to the United States’ arguments, making the matter ripe for
disposition.

4

II.

DISCUSSION

“Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994).4 The FTCA “waive[s] the sovereign
immunity of the United States for certain torts committed by federal employees.” Id. Because
sovereign immunity is jurisdictional, the terms of the waiver define the court’s ability to hear the
suit. Id. A plaintiff has an FTCA cause of action against the United States only if he would have
a cause of action under state law against a private person under similar circumstances. 28 U.S.C.
§ 1346(b); Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991). Accordingly, in an FTCA
action, the court must look to the law of the place where the allegedly negligent acts by federal
officials occurred. Richards v. United States, 369 U.S. 1, 10 (1962).
Venue for an FTCA claim is governed by 28 U.S.C. § 1402(b), which provides that tort
claims against the United States “may be prosecuted only in the judicial district where the plaintiff
resides or wherein the act or omission complained of occurred.” For purposes of venue, a party
“is deemed to reside in the judicial district in which that person is domiciled.” 28 U.S.C.
§ 1391(c)(1). “[A] prisoner’s domicile is presumed to be where he was domiciled prior to
incarceration.” Ownby v. Cohen, 19 F. Supp. 2d 558, 563 (W.D. Va. 1998), aff’d, 194 F.3d 1305
(4th Cir. 1999). “[T]his presumption may be rebutted by an inmate’s intention to change
domicile.”

Roberts v. Morchower, No. 91–7688, 1992 WL 42885, at *1 (4th Cir. 1992)

(unpublished). “The district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district
or division in which it could have been brought.” 28 U.S.C. § 1406(a).

4

The court has omitted internal quotation marks, alterations, and/or citations here and throughout this
opinion, unless otherwise noted.

5

The Southern District of Illinois found it to be “undisputed” in that court “that [White] was
domiciled in the Western District of Virginia because he state[d] in his first amended complaint
he resided and engaged in business in Roanoke, Virginia prior to his arrest.” R&R 11, ECF No.
70. Thus, the Court found that venue was improper as to White’s FTCA claims relating to events
outside the Southern District of Illinois, and considered under 28 U.S.C. § 1406(a) whether to
dismiss such claims or to transfer them to this district where venue was proper. White argued for
dismissal without prejudice so that he could refile the claims in the Western District of Virginia.
Judge Gilbert, however, exercised his discretion to transfer the six, non-Illinois counts here instead.
The United States now argues for dismissal of the transferred counts on the ground that
venue is improper in this court. The motion asserts that none of the events White raises in these
counts occurred within the Western District and that White abandoned his Virginia residency by
absconding to Mexico in 2011 with no intention to return. During White’s trial in the Western
District in 2013, he testified on cross-examination:
Q

Were you planning to come back to Virginia?

A

No.

Q

How were you going to support yourself?

A

Well, working for various news agencies, some in the United States, some
overseas. American money goes a lot further overseas.

United States v. White, No. 7:13CR00013, ECF No. 170, at 38 (W.D. Va. Nov. 1, 2013). The
United States argues that White changed his domicile in 2012 when he took up residence in Mexico
with the intent never to return to Virginia and asks the court to dismiss the counts for improper
venue.
In response to the United States’ transfer motion, White denies that he intentionally
abandoned his domicile in the Western District of Virginia by leaving for Mexico to avoid
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additional prison time. He states that he did not intend to stay in Mexico, that he was only passing
through, and that he intends to reside in Virginia when released from prison. The court cannot
find that the evidence currently in the record is sufficient to rebut the presumption that White
remains domiciled in the jurisdiction where he resided before his incarceration—the Western
District of Virginia.
Moreover, Judge Gilbert has already decided that venue was proper in the Western District
so as to permit transfer of the case to this court under 28 U.S.C. § 1406(a). That decision is now
the law of the case. See L.J. v. Wilbon, 633 F.3d 297, 308 (4th Cir. 2011) (“The law of the case
doctrine posits that when a court decides upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case.”). Under this doctrine, a court may revise
an interlocutory ruling only in very limited circumstances such as when a ruling was the product
of “clear error causing manifest injustice.” Carlson v. Boston Sci. Corp., 856 F.3d 320, 325 (4th
Cir. 2017). Finding no such circumstance, the court will not revisit the propriety of Judge Gilbert’s
transfer decision under § 1406(a).5

5

White has argued—to Judge Gilbert and to this court—that his ten remaining counts are all allegedly linked
by what he now calls the “National Initiative Targeting Bill White”—an alleged conspiracy among federal officials
around the country to commit crimes for which White has been framed and to torture him while he is in custody.
Resp. 2, ECF No. 82. White’s argument that a conspiracy links his disparate FTCA claims from all over the country
is foreclosed here by the law of the case doctrine. Judge Gilbert concluded:
[White] argues that all ten remaining counts share a “common core of operative facts,” so they
accordingly should all be tried together. See Bell v. Taylor, 827 F.3d 699 (7th Cir. 2016) (citing
Czarniecki v. City of Chicago, 633 F.3d 545 (7th Cir. 2011)). The Court disagrees. These six counts
all concern conduct that allegedly occurred in districts far from here, by different individuals at very
different times. It is not clear how these discrete instances are connected at all, barring White’s
allegations of an overarching conspiracy by the Government. The Court will accordingly transfer
those six counts. . . .
White v. United States, No. 3:17-CV-00683, 2019 WL 3315563, at *2 (S.D. Ill. July 24, 2019). Judge Gilbert’s ruling
on this issue is now the law of the case, and the court will not revisit it. Wilbon, 633 F.3d at 308. Thus, the court
rejects White’s argument for transfer of his claims back to the Illinois court.

7

After careful consideration of the counts now at issue here, the court concludes that for
purposes of the convenience of the parties and in the interest of justice, they should be severed and
transferred to the districts in which the relevant conduct occurred. A court may, on motion or on
its own, sever any claim against a party. Fed. R. Civ. P. 21. Assuming that venue is proper in this
district, based on White’s prior residence here, “whether to sever the plaintiff’s claims and transfer
the ones based on alleged [acts or] omissions that occurred in [other judicial districts] is a
determination to be made under § 1404(a) and is within the sound discretion of the court.” Babb
v. United States, No. CV 0:19-487-JFA-PJG, 2019 WL 3731861, at *1–2 (D.S.C. Aug. 8, 2019);
Najera v. United States, No. 1:16CV459 (JCC/JFA), 2016 WL 6877069, at *2–3 (E.D. Va. Nov.
22, 2016) (“[A] court has virtually unfettered discretion in determining whether or not severance
is appropriate.”).
It is undisputed that under § 1402(b), venue over White’s FTCA claims would be proper
in the districts where the conduct underlying those claims occurred. Moreover, this court has
authority to transfer White’s claims to those districts, provided that the transfer would be consistent
with the purposes set forth in 28 U.S.C. § 1404(a). This section 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.” 28 U.S.C. § 1404(a) (emphasis
added). It is well established that a district court has broad discretion under § 1404(a) to grant or
deny a motion to transfer to another district where venue would also be proper. Landers v. Dawson
Const. Plant, Ltd., Nos. 98–2709, 98–2763, 1999 WL 991419, at *2 (4th Cir. Nov. 2, 1999)
(unpublished) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947) and other cases). In
addressing a motion to transfer, courts commonly consider these factors:
(1) the ease of access to the sources of proof; (2) the convenience of the parties and
witnesses; (3) the cost of obtaining the attendance of the witnesses; (4) the
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availability of compulsory process; (5) the possibility of a view by the jury; (6) the
interest in having local controversies decided at home; and (7) the interests of
justice.
Id.
After reviewing these factors, the court concludes that severing and transferring White’s
FTCA claims to the courts in the states where the discrete instances of conduct at issue allegedly
occurred will best further the interests of justice and the convenience of the parties. Taking this
course will allow each district court to look to the law of the state in which it is located to address
White’s FTCA claims. Further, each claim can then be resolved “at home.” Id. Records and
potential witnesses will be local, facilitating development of the facts about White’s housing
classifications, particular prison conditions, and medical or mental health complaints he may have
made in the prison facilities where the events occurred. Should the need for a hearing or trial arise,
loss of work time and travel expenses for BOP staff witnesses will be minimized, thus conserving
valuable government resources.6 Id. White, as a BOP inmate, is unlikely to bear the travel costs
associated with a trial or hearing, should such a proceeding be scheduled.
For the stated reasons, the court concludes that the interests of justice will be best served
by severing the claims. Accordingly, the court will grant the United States’ motion on different
grounds than those raised therein by severing White’s claims into three total cases. In this case,
the following counts will remain: 37, 38, 41(b) and 42(b), concerning conduct that occurred at
USP Canaan, located within the jurisdiction of the Middle District of Pennsylvania. Counts 41(a)
and 42(a), concerning conduct that occurred at FCI Loretto, located within the jurisdiction of the
Western District of Pennsylvania, will be severed from this case into a separate, new case. Counts
47 and 48, concerning conduct that occurred at FTC Oklahoma, located within the jurisdiction of

6

The court notes that Judge Gilbert denied the United States’ motion to dismiss White’s FTCA claims
concerning events in the Southern District of Illinois, and those claims are proceeding toward trial.

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