UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
STEPHEN C. BALLARD, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1166 (RWR) ) CAROL HOLINKA, et al., ) ) Defendants. )
MEMORANDUM OPINION
This matter is before the Court on defendants’ Motion to Dismiss or, in the Alternative, to
Transfer. For the reasons stated below, the Court will dismiss some claims and transfer the
remaining claims to the United States District Court for the District of Minnesota.
I. BACKGROUND
At all times relevant to the complaint, plaintiff was incarcerated at the Federal
Correctional Institution in Waseca, Minnesota (“FCI Waseca”) and defendant Carol Holinka
(“Holinka”) was its Warden.1
A. July 2006 Issue of American Curves
Bureau of Prisons (“BOP”) Program Statement 5266.10, Incoming Publications
(1/10/2003), permits a warden to block certain material from being delivered to an inmate. It
provides:
1 According to the Federal Bureau of Prisons’ Inmate Locator, plaintiff currently is incarcerated at a community corrections facility in Kansas City, Kansas.
1 The Warden may reject a publication only if it is determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity. The Warden may not reject a publication solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant. Publications which may be rejected by a Warden include but are not limited to publications which [include] sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity.
Id., Sec. 6.b.(7). Only the Warden or Acting Warden may reject an incoming publication. Id. If
the Warden rejects a publication, she “shall promptly advise the inmate in writing of the decision
and the reasons for it [and] [t]he notice must contain reference to the specific article(s) or
material(s) considered objectionable.” Id., Sec. 6.d. In addition, BOP is subject to the Ensign
Amendment, which provides:
None of the funds made available . . . to the Federal Bureau of Prisons may be used to distribute or make available any commercially published information or material to a prisoner when it is made known to the Federal Official having authority to obligate or expend such funds that such information or material is sexually explicit or features nudity.
Id., Sec. 7 (emphasis added).2 In this circumstance, either the Warden or designated Mail Room
staff “shall return the information or material to the publisher or sender.” Id., Sec. 7.a. The
inmate to whom the material is sent is “notified via use of the Notification to Inmate of Return of
Publication or Materials.” Id., Sec. 7.a.(8). The material is returned to the publisher, and the
inmate may not review the material even for the purpose of filing an inmate grievance. See id.,
Sec. 7.a.(7), (9). For purposes of the Ensign Amendment, the term “nudity” means “a pictorial
2 “[T]he Ensign Amendment . . . was originally enacted as part of the Omnibus Consolidated Appropriations Act of 1997. See Pub. L. No. 104-208, § 614, 110 Stat. 3009 (1996). The amendment . . . has been reenacted in each subsequent appropriations act and is now codified at 28 U.S.C. § 530C(b)(6)[.]” Ramirez v. Pugh, 486 F. Supp. 2d 421, 424 (M.D. Pa. 2007) (footnote omitted), appeal dismissed, 273 Fed. Appx. 159 (3d Cir. Apr. 8, 2008).
2 depiction where genitalia or female breasts are exposed.” Id., Sec. 7.b.(2). Information or
material “features” nudity if it:
contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues. Publications containing nudity illustrative of medical, educational, or anthropological content may be excluded from this definition.
Id., Sec. 7.b.(3).3 “Sports magazine swimsuit issues” are “examples of commercial publications
which . . . may be distributed to inmates even though they may contain nudity because the
publication[s] do[] not feature nudity.” Id., Sec. 7.b.(3). (emphasis in original). However,
“[a]ny publication may change a single issue . . . at any time which would allow it to become . . .
non-acceptable for distribution.” Id.
On or about June 27, 2006, plaintiff received a notice that his July 2006 issue of
American Curves magazine was rejected and returned to the publisher on the ground that the
BOP cannot use appropriated funds to distribute a magazine which features nudity. See
Complaint (“Compl.”) ¶¶ 4-6 & Ex. A (Notification to Inmate of Return of Publication or
Materials) (exhibit designation by the Court).4 Plaintiff promptly availed himself of the
Administrative Remedy Program by filing a grievance to “appeal[] the rejection of [the] July
2006 issue of American Curves.” Id., Ex. B (Informal Resolution Attempt). His request was
3 The definitions of the terms “nudity” and “features” are identical to those set forth in 28 C.F.R. § 540.72(b)(2), (3), the regulation implementing 28 U.S.C. § 530C(b)(6). Under 28 U.S.C. § 530C(b)(6), no “funds available to the Attorney General for the Federal Prison System may be used . . . to distribute or make available to a prisoner any commercially published information or material that is sexually explicit or features nudity.” 4 Plaintiff’s complaint includes a three-page preprinted form to which he attached a statement in six typewritten pages numbered 1-6. In the typewritten statement, plaintiff sets forth his allegations in sequentially numbered paragraphs. References to the Complaint in this Memorandum Opinion are references to the typewritten six-page statement.
3 denied at each stage. See id.¶¶ 22-25 & Ex. D (Warden Holinka’s September 15, 2006
Administrative Remedy Response), Ex. F (October 27, 2006 Response to Regional
Administrative Remedy Appeal) & Ex. H (January 27, 2007 Response by the Administrator of
National Inmate Appeals).
According to plaintiff, the July 2006 issue of American Curves “is a sports magazine
swimsuit issue,” Compl. ¶ 13, which “does not contain depictions of nudity or sexually explicit
conduct on a routine or regular basis.” Id. ¶ 11. He asserts that American Curves does not
“feature nudity” as these terms are defined in Program Statement 5266.10, such that defendants
“acted with malice or reckless disregard for Plaintiff Ballard’s First Amendment rights” in
rejecting the July 2006 issue. Id. ¶ 36. In the alternative, plaintiff asserts that Program Statement
5266.10 is void for vagueness because it does not define the phrase “routine or regular basis.”
Id. ¶¶ 37-39.
B. Limits on the Purchase of Stamps
BOP Program Statement P4500.05, Trust Fund/Deposit Fund Manual (1/22/2007)
provides that:
Ordinarily, the Commissary shall sell no more than 60 postage stamps (for first-class, domestic, one-ounce mailing), or the equivalent per Commissary visit. An exception may be made where visits are limited to one per week or less, in which case, the Associate Warden may authorize additional purchases of stamps.
Id., Ch. 3, Sec. 3.4 f.(4) (emphasis added) (listing postage stamps among categories and
examples of products approved for sale in BOP commissaries).
According to plaintiff, the Warden “instituted a policy [at] FCI Waseca limiting inmate
stamp purchases to 20 first-class stamps per week, although an inmate is allowed to possess 60
4 first-class stamps.” Compl. ¶ 40. As a result of the policy, plaintiff alleges that he “was unable
to mail letters.” Id. ¶ 41. He challenges the Warden’s policy on the ground that it is “arbitrary
and capricious.” Id. ¶ 43.
Plaintiff availed himself of the Administrative Remedy Program by filing a grievance.
See Compl., Ex. I (March 1, 2006 Request for Administrative Remedy). His request was denied
at each stage. Id., Ex. J (Warden Holinka’s April 5, 2006 Administrative Remedy Response),
Ex. L (June 2, 2006 Response to Regional Administrative Remedy Appeal) & Ex. N (August 23,
2006 Response by the Administrator of National Inmate Appeals). Because inmates have “the
proclivity . . . to hoard postage stamps and use such as currency,” the BOP “established a limit of
20 postage stamps per commissary visit,” a number deemed “reasonable and sufficient to meet
the social correspondence needs of the overwhelming majority of the inmate population.” Id.,
Ex. N.
Plaintiff brings this action pro se under 42 U.S.C. § 1983 against Warden Holinka,
Harrell Watts, the Administrator of National Inmate Appeals, and Harley Lappin, BOP’s
Director, in both their official and individual capacities, see Compl. (caption), for their alleged
violations of his First Amendment rights, and under the Administrative Procedure Act, 5 U.S.C.
§ 701 et seq. See id. at 3. He demands a declaratory judgment, compensatory and punitive
damages plus costs, and injunctive relief. Id. Defendants move to dismiss the complaint,
alleging among other things, a lack of subject matter and personal jurisdiction, and failure to state
a claim upon which relief can be granted. They seek in the alternative to transfer venue.
5 II. DISCUSSION
A. Claims Against Defendants Holinka, Watts and Lappin in their Individual Capacities
1. This Court Lacks Personal Jurisdiction Over Defendant Holinka5
It is plaintiff’s burden to make a prima facie showing that the Court has personal
jurisdiction over the defendants. See First Chicago Int’l v. United Exch. Co., 836 F.2d 1375,
1378-79 (D.C. Cir. 1988). “Plaintiff must allege specific facts on which personal jurisdiction can
be based; [he] cannot rely on conclusory allegations.” Moore v. Motz, 437 F. Supp. 2d 88, 91
(D.D.C. 2006) (citations omitted).
“A District of Columbia court may exercise personal jurisdiction over a person domiciled
in, organized under the laws of, or maintaining his or its principal place of business in, the
District of Columbia as to any claim for relief.” D.C. Code § 13-422. Here, plaintiff identifies
Holinka as the Warden at FCI Waseca. See Compl. ¶¶ 19, 23 & Ex. D. Plaintiff does not allege
that she either resides within or maintains a principal place of business in the District of
Columbia.
In this situation, the Court engages in a two-part inquiry to determine whether it may
exercise personal jurisdiction over Holinka, a non-resident defendant. First, the Court must
determine whether jurisdiction may be exercised under the District of Columbia’s long-arm
statute. See GTE New Media Servs., Inc. v. Bell South Corp., 199 F.3d 1343, 1347 (D.C. Cir.
2000). Second, the Court must determine whether the exercise of personal jurisdiction satisfies
due process requirements. Id. (citing United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir.
5 The Court presumes without deciding that service of process on Holinka in her individual capacity was effected properly.
6 1995)). This portion of the analysis turns on whether a defendant’s “minimum contacts” with the
District of Columbia establish that “the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945) (internal quotation marks omitted). These minimum contacts must arise from “some act
by which the defendant purposefully avails [herself] of the privilege of conducting activities with
the forum state, thus invoking the benefits and protections of its laws.” Asahi Metal Indus. Co.,
Ltd. v. Super. Ct. of Cal., Solano Cty., 480 U.S. 102, 109 (1988) (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985)). In other words, “the defendant’s conduct and connection
with the forum State are such that [she] should reasonably anticipate being haled into court
there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
The District of Columbia long-arm statute allows a court in the District of Columbia to
exercise personal jurisdiction over a non-resident defendant with regard to a claim arising from
the defendant’s conduct in:
(1) transacting business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.
D.C. Code § 13-423(a).6
6 The alternative bases set forth under the long-arm statute are inapplicable.
7 Plaintiff argues that this Court may exercise personal jurisdiction over Holinka because
she “is located at an outpost that responds to the directives issued from the Washington offices”
of the BOP. Plaintiff’s Response to Motion to Dismiss and Transfer (“Pl.’s Opp’n”) at 3. Such
assertions alone are not sufficient. Cf. FC Inv. Group LC v. IFX Markets, Ltd., 479 F. Supp. 2d
30, 39 (D.D.C. 2007) (concluding that “defendant’s ‘regular’ phone calls into the District of
Columbia from elsewhere do not constitute ‘transacting business’ in the District of Columbia”),
aff’d, 529 F.3d 1087 (D.C. Cir. 2008).
Plaintiff does not allege specific facts showing that Holinka transacts any business or
contracts to supply services in the District of Columbia. Although persistent conduct undertaken
in a person’s individual capacity may constitute transacting business for purposes of the D.C.
long-arm statute, see Pollack v. Meese, 737 F. Supp. 663, 666 (D.D.C. 1990), the complaint sets
forth no allegations that Holinka has any personal connection with the District of Columbia other
than her federal employment. The mere fact that Holinka is an employee of the BOP, which is
headquartered in this district, does not render her subject to suit in her individual capacity in the
District of Columbia. Pollack v. Meese, 737 F. Supp. at 666 (concluding that the court had no
basis for asserting personal jurisdiction over a BOP Warden “whose office is in Springfield,
Missouri” because he “surely does not transact any business in the District of Columbia”); see Ali
v. District of Columbia, 278 F.3d 1, 7 (D.C. Cir. 2002) (dismissing claims of District of
Columbia offender housed under contract in a Virginia facility against Virginia officials in their
individual capacities over whom this district court lacked personal jurisdiction).
Plaintiff is no more successful in establishing that Holinka caused any tortious injury in
the District of Columbia. The actual injuries of which plaintiff complains occurred in Minnesota
8 while he was incarcerated at FCI Waseca. Regardless of whether this defendant acted in or
outside of the District of Columbia, plaintiff suffered no injury here. The Complaint is devoid of
factual allegations supporting the exercise of personal jurisdiction over her based on her
purposeful or repeated contacts with this forum, and there is no showing that Holinka could
reasonably anticipate being haled into court here. For these reasons, the Court concludes that it
lacks personal jurisdiction over Holinka. However, since this case will be transferred to a district
where personal jurisdiction over Holinka can be exercised, as is discussed below, Holinka will
not be dismissed as a defendant at this stage.
2. Defendant Lappin Cannot Be Held Liable Under a Respondeat Superior Theory
The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. __, __, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). A motion under Rule 12(b)(6) does not test a plaintiff’s likelihood of
success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes the factual
allegations of the complaint to be true and construes them liberally in the plaintiff’s favor. See,
e.g., United States v. Phillip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2001). Although
“detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a plaintiff
must offer “more than labels and conclusions” to provide “grounds” of “entitle[ment] to relief.”
Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1964-65. Thus, the complaint’s “[f]actual allegations
9 must be enough to raise a right to relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 1965 (citations omitted).
The Court construes plaintiff’s claims against Lappin in his individual capacity as claims
brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). “A Bivens action is the federal analog to suits brought against state officials under . . . 42
U.S.C. § 1983.”7 Marshall v. Fed. Bureau of Prisons, 518 F. Supp. 2d 190, 193 (D.D.C. 2007)
(citing Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) (internal citation omitted)). Under
Bivens, a plaintiff has “an implied private action for damages against federal officers alleged to
have violated [his] constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001).
Critical to a Bivens claim is an allegation “that the defendant federal official was personally
involved in the illegal conduct.” Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 369
(D.C. Cir. 1997).
According to plaintiff, Lappin “enforced[] or acquiesced in the . . . rejection of the July
2006 issue of American Curves,” Compl. ¶ 21, and thus was a participant in the “causal chain” of
events giving rise to his cause of action. Pl.’s Opp’n at 3. Plaintiff has neither pled nor shown
that Lappin himself took part in rejecting the magazine or otherwise directly caused plaintiff
injury. In his capacity as Director of the BOP, Lappin has supervisory and oversight
responsibility for the agency’s activities. To the extent that the plaintiff’s theory of the case is to
hold Lappin liable for the unconstitutional acts of his subordinates Watts and Holinka, plaintiff
7 “To state a claim under [42 U.S.C. §] 1983, a plaintiff must allege both (1) that he was deprived of a right secured by the Constitution or laws of the United States, and (2) that the defendant acted ‘under color of’ the law of a state, territory or the District of Columbia.” Hoai v. Vo, 935 F.2d 308, 312 (D.C. Cir.1991).
10 cannot prevail. Lappin’s supervisory role as the BOP’s Director does not render him personally
liable for the alleged wrongful acts of the BOP’s employees. See Monell v. New York City Dep’t
of Soc. Servs., 436 U.S. 658, 691 (1978) (holding that respondeat superior liability cannot form
the basis of liability for a § 1983 claim); see also Cameron v. Thornburgh, 983 F.2d 253, 258
(D.C. Cir. 1993) (concluding that a complaint naming the Attorney General and the BOP
Director as defendants based on theory of respondeat superior, without allegations specifying
their involvement in the case, does not state a claim against them under Bivens); Epps v. United
States Attorney General, 575 F. Supp. 2d 232, 239 (D.D.C. Sept. 8, 2008) (citing Marshall v.
Reno, 915 F. Supp. 426, 429-30 (D.D.C. 1996)) (“A superior official cannot be held liable under
Section 1983 or Bivens for the constitutional torts of employees under him or her; the common
law theory of respondeat superior does not pertain to the federal government in this context.”).
3. Qualified Immunity
“[G]overnment officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Under this doctrine of qualified immunity, a government official can
be held liable only if his conduct violates a constitutional right and if it would be clear to a
reasonable official that his conduct was unlawful in the situation at issue. Saucier v. Katz, 533
U.S. 194, 201-02 (2001). An official protected by qualified immunity enjoys “immunity from
suit rather than a mere defense to liability,” which is “effectively lost if a case is erroneously
permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original).
11 Defendant Watts’ involvement came about only because, in his capacity as the National
Inmate Appeals Administrator, he rejected plaintiff’s final Administrative Remedy Program
appeal to BOP’s Central Office. See Compl., Ex. H, K. Federal district courts have determined
that Watts is protected by qualified immunity where the Bivens claims against him arise from
decisions he has rendered on grievance appeals. See Patel v. Warren, No. 7-CA-760, 2007 WL
2818056, at *8 (W.D. Tex. Sept. 26, 2007) (concluding that qualified immunity bars suit against
Watts based on plaintiff’s dissatisfaction with his response to administrative grievance because
prisoners “do not have a constitutionally protected liberty interest in having grievances resolved
to their satisfaction, and so there is no violation of due process when prison officials fail to do
so”) (citation omitted); Hodge v. United States, No. 06cv1622, 2007 WL 2571938, at *13 (M.D.
Pa. Aug. 31, 2007) (adopting magistrate judge’s recommendation to dismiss Bivens claim against
Watts because “prison official’s response or lack thereof to an inmate’s Administrative remedies
is not sufficient alone to hold the official liable in a civil rights action”); accord Walton v. Fed.
Bureau of Prisons, 533 F. Supp. 2d 107, 114 (D.D.C. 2008). The Court concludes that Watts is
protected by qualified immunity and that plaintiff’s claims for damages against him are barred
for failure to state a claim upon which relief can be granted.
B. Claims Against Defendants Holinka, Watts and Lappin in their Official Capacities
Plaintiff brings this action against Holinka, Watts and Lappin in their official capacities
as well. “Official capacity suits . . . generally represent only another way of pleading an action
against an entity of which an officer is an agent,” such that “an official capacity suit is, in all
respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473
12 U.S. 159, 165-66 (1985). Accordingly, the Court treats these claims as if they were brought
against the United States directly.
“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,
212 (1983). Such consent may not be implied, but must be “unequivocally expressed.” United
States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992). The United States has not waived its
sovereign immunity for constitutional tort claims. See Fed. Deposit Ins. Corp. v. Meyer, 510
U.S. 471, 477 (1994) (stating that sovereign immunity precludes damage claims against the
United States government for constitutional violations brought under the Federal Tort Claims
Act). In addition, sovereign immunity extends to governmental agencies such as the BOP and to
their employees where such employees are sued in their official capacities. See id. at 483-86.
“Sovereign immunity is jurisdictional in nature,” id. at 475, and absent a waiver of sovereign
immunity, the court lacks subject matter jurisdiction to entertain plaintiff’s claims for money
damages against the BOP or against the federal government officials sued in their official
capacities here. See id.; Clark v. Library of Congress, 750 F.2d 89, 101-02 (D.C. Cir. 1984);
Meyer v. Reno, 911 F. Supp. 11, 18 (D.D.C. 1996). However, it appears that plaintiff’s claim
under the Administrative Procedure Act survives this motion to dismiss because the statute
waives sovereign immunity to the extent that declaratory judgment or other equitable relief may
be available. See 5 U.S.C. § 702 (authorizing “relief other than money damages” to a “person
suffering legal wrong because of agency action, or adversely affected or aggrieved by agency
action ”).
13 C. Transfer to the District of Minnesota
Defendants move to dismiss on the ground that venue in this district is improper. See
Defs.’ Mot. at 9-10. In the alternative, defendants move to transfer this action to the United
States District Court for the District of Minnesota. See id. at 10. Plaintiff maintains that this
action should proceed in this district principally because the BOP’s Central Office is located in
the District of Columbia. See Pl.’s Opp’n at 5. In addition, he states that Lappin and Watts
perform their duties here. Id. Although Holinka neither resides nor conducts business in this
district, plaintiff asserts that she “is located at an outpost” of the BOP and, therefore, “responds
to the directives issued from the Washington offices.” Id. Lastly, because plaintiff pursued his
Administrative Remedy Program grievances to their final stage, an appeal to the National Inmate
Appeals Administrator, he argues that it is in the District of Columbia that “his relief was denied
once and for all, and his need for relief through the courts began.” Id.
“Courts in this jurisdiction must examine challenges to . . . venue carefully to guard
against the danger that a plaintiff might manufacture venue in the District of Columbia.”
Cameron v. Thornburgh, 983 F.2d at 256. In a civil action where the Court’s jurisdiction is not
based solely on diversity of citizenship, such as this case, venue is proper in “(1) a judicial
district where any defendant resides, if all defendants reside in the same State, (2) a judicial
district in which a substantial part of the events or omissions giving rise to the claim occurred . . .
or (3) a judicial district in which any defendant may be found, if there is no district in which the
action may otherwise be brought.” 28 U.S.C. § 1391(b). Venue is not proper in this district
under any of the provisions of 28 U.S.C. § 1391(b): defendants do not all reside in the District of
Columbia, no substantial part of the events giving rise to plaintiff’s claim took place here, and
14 this is not a case in which no other district is available. Rather, a substantial part of the events
giving rise both to plaintiff’s First Amendment claim and his Administrative Procedure Act
claim occurred in Minnesota while plaintiff was incarcerated at FCI Waseca.
In a case filed in a jurisdiction in which venue is improper, the Court, in the interest of
justice, may transfer the action to any other district where it could have been brought. 28 U.S.C.
§ 1406(a). The decision to transfer an action on this ground is left to the discretion of the Court.
See Novak-Canzeri v. Saud, 864 F. Supp. 203, 207 (D.D.C. 1993). The Court may transfer an
action even though it lacks personal jurisdiction over the defendants. Naartex Consulting Corp.
v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983), cert. denied, 467 U.S. 1210 (1984). Transfer is
appropriate under Section 1406(a) “when procedural obstacles ‘impede an expeditious and
orderly adjudication . . . on the merits.’” Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C. Cir.
1983) (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962)); Crenshaw v. Antokol, 287
F. Supp. 2d 37, 45 (D.D.C. 2003) (stating that the “lack of venue should not bar resolution of the
plaintiff's claims on the merits,” and transferring the case to the district where “venue would be
proper and the defendants would be subject to personal jurisdiction”). Such procedural obstacles
include “lack of personal jurisdiction, improper venue, and statute of limitation bars.” Sinclair v.
Kleindienst, 711 F.2d at 294.
In the interest of justice, the Court will transfer this action to the United States District
Court for the District of Minnesota. See, e.g., Simpson v. Fed. Bureau of Prisons, 496 F. Supp.
2d 187, 194 (D.D.C. 2007) (transferring prisoner’s civil action brought under Bivens and the
Federal Tort Claims Act to the district having “personal jurisdiction over the two defendants
most involved in the underlying disciplinary proceedings and [where] venue” is proper); Zakiya
15 v. United States, 267 F. Supp. 2d 47, 59 (D.D.C. 2003) (transferring case involving challenge to
national BOP policy to the district where the “implementation of the national policy occurred”);
Dorman v. Thornburgh, 740 F. Supp. 875, 879-80 (D.D.C. 1990) (transferring action to the
district where the “operatively significant event of the conspiracy to deprive them of their civil
rights occurred”). It is in the District of Minnesota where the court may exercise personal
jurisdiction, where venue is proper, and where the events giving rise to plaintiff’s claims
occurred.
An appropriate Order accompanies this Memorandum Opinion
Signed this 27th day of February, 2009.
/s/ RICHARD W. ROBERTS United States District Judge