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Shorter v. United States

United States District Court, N.D. Florida, Tallahassee Division

July 17, 2019

CHRISTOPHER SHORTER, Plaintiff,
v.
UNITED STATES OF AMERICA, Lieutenant, Special Investigative Supervisor LT. BITTNER, MD/CCHP CARL SCEUSA, PREA Compliance Manager UNKNOWN, Defendants.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion to Transfer Case to the District of New Jersey (ECF Doc. 24) and the Plaintiff's response thereto (ECF Doc. 25). This matter was initially filed in the United States District Court for New Jersey, Camden Vicinage, and was transferred from that court on March 25, 2019, pursuant to 28 U.S.C. § 1404(a). ECF Docs. 20, 21. The order transferring the case was entered before the Defendants were properly served or appeared. Now that Defendants have appeared, they seek to have the case transferred back to the District of New Jersey. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1). For the reasons which follow, the undersigned respectfully recommends that the case be transferred to the District of New Jersey.

         I. Procedural Background

         Plaintiff Christopher “Chrissy” Shorter, proceeding pro se and in forma pauperis, initially filed this Bivens[1] suit, against ten (10) individuals, including several officials of Fort Dix Federal Correctional Institution (“Fort Dix FCI”), in the District of New Jersey. ECF Doc. 12 at 6-8. At the time Plaintiff filed this suit, she was an inmate at Miami FCI in Miami, Florida, located in the Southern District of Florida. ECF Doc. 1 at 3-4. Plaintiff's complaint arises out of events that occurred while she was incarcerated at Fort Dix FCI, an institution located in the District of New Jersey. The crux of her complaint is that she arrived at Fort Dix FCI as a transgender inmate “at risk” for sexual victimization, that Defendants were aware of Plaintiff's status and that Defendants failed to protect Plaintiff, intervene to prevent or stop assaults against Plaintiff and failed to investigate assaults against Plaintiff (ECF Doc. 12 at 12-14). She also asserts a claim against the United States under the Federal Tort Claims Act (“FTCA”) arising out of the same events and alleged wrongful conduct. Id. at 14-19.

         Plaintiff's original complaint was filed on October 23, 2017. ECF Doc. 1. Upon screening, the District Court administratively terminated the case, subject to it being reopened after Plaintiff submitted a proper and completed IFP application. ECF Doc. 2. The District Court further advised Plaintiff of certain deficiencies with her Bivens claims, and “reserve[d] the Bivens issue until such time as Plaintiff states a cognizable Due Process Claim.” ECF Doc. 2 at 16. The District Court reviewed the FTCA claim and stated that if the Plaintiff did not file an amended complaint, the Court would dismiss the Bivens claim without prejudice and allow only the FTCA claim to proceed. ECF Doc. 2 at 17. The Plaintiff filed her amended complaint on June 5, 2018 (ECF Doc. 7)[2], and the District Court reopened the matter on January 22, 2019. ECF Doc. 10.[3]

         On February 4, 2019, Plaintiff filed a notice of change of address and a motion to transfer venue under 28 U.S.C. § 1404, seeking to have the case transferred to the Northern District of Florida, on the basis that she is to be released from prison on February 14, 2019, and will be moving to Quincy, FL, a city located in the Northern District of Florida. ECF Doc. 13; ECF Doc. 14 at 1.

         On March 25, 2019, the United States District Court for the Northern District of New Jersey issued an opinion and order granting Plaintiff's motion to transfer. ECF Docs. 20, 21. In the District Court's opinion, the court found that “Plaintiff's pro se status, lack of financial resources, and her release from prison to a residence within the Northern District of Florida, Tallahassee Division makes that District Court the most convenient forum.” ECF Doc. 20 at 3.

         II. Analysis

         Defendants seek to have this case transferred back to the District of New Jersey on two grounds. First, they seek a transfer under 28 U.S.C. § 1406(a), on the ground that venue in this district is improper. Second, they contend that even if venue in this district is proper, the case should be transferred under § 1404(a) because the District of New Jersey is a more convenient forum. Because the undersigned finds that venue in this district is improper, the undersigned need not address the Defendants' forum non conveniens argument.

         Pursuant to 28 U.S.C. § 1406(a), “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). Defendants argue that because this case could not originally have been brought in this district, it was improvidently transferred under 28 U.S.C. § 1404(a). See Miot v. Kechijian, 830 F.Supp. 1460, 1466 (S.D. Fla. 1993) (denying motion to transfer to the District Court for North Carolina because the action could not have originally been brought in that district under 28 U.S.C. § 1391(a)). Thus, Defendants argue this case must be transferred to the District of New Jersey.

         Under 28 U.S.C. § 1404(a), a court may transfer a case “[f]or the convenience of the parties and witnesses [or] in the interest of justice” “to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). When venue is contested, determining whether to transfer a case under § 1404(a) involves two inquiries: “First, the court must determine whether the action could originally have been brought in the proposed transferee district court, ” and “[s]econd, the court ‘must determine whether the action should be transferred for the convenience of the parties and the interest of justice.'” See APR, LLC v. American Aircraft Sales, Inc., 985 F.Supp.2d 1298, 1303 (M.D. Ala. 2013) (citing C.M.B. Foods, Inc. v. Corral of Middle Georgia, 396 F.Supp.2d 1283, 1285 (M.D. Ala. 2005)). Thus, to determine whether this case is laying in the wrong venue, the undersigned must consider whether this case could originally have been brought in this district.

         As stated above, Plaintiff has filed a claim under Bivens and an FTCA claim. Proper venue for those claims are determined by 28 U.S.C. § 1391(b) and 28 U.S.C. § 1402(b), respectively. Section 1391 provides the venue for Plaintiff's Bivens claims. See New Alliance Party of Ala. v. Hand, 933 F.2d 1568, 1570 (11th Cir. 1991) (per curiam) (applying Section 1391(b) venue provision to Section 1983 action). Under 1391(b) Plaintiff's action can be brought in any of these three districts:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the ...

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