Void-El v. O'Brien , 811 F. Supp. 2d 255 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
:
BRUCE E. VOID-EL, :
:
Plaintiff, :
:
v. : Civil Action No. 11-0255 (JEB)
:
TERRY O’BRIEN, et al. :
:
Defendants. :
___________________________________ :
MEMORANDUM OPINION
Plaintiff Bruce Void-El has brought this action seeking to obtain good-time credits in
order to reduce his murder sentence. Although the pleading and procedural history is somewhat
tortuous, the Court ultimately finds that, as venue here is improper, the case should be dismissed.
I. Background
Approximately twenty years ago in the Superior Court of the District of Columbia, a jury
found Plaintiff guilty of conspiracy to distribute and possess with the intent to distribute PCP and
cocaine and of first-degree murder while armed. United States v. Void, 631 A.2d 374, 376 (D.C.
1993). He received a term of 3-9 years’ imprisonment on the conspiracy conviction, to be served
consecutively to a mandatory-minimum term of 20 years to life on the murder conviction. Defs.’
Mot. to Set Aside Default, Statement of Material Facts not in Dispute, at ¶ 2. Plaintiff, whose
aggregate minimum term of imprisonment is thus 23 years, has been transferred to the custody of
the Federal Bureau of Prisons.
Plaintiff originally filed the Complaint in this case in the Superior Court on Oct. 30,
2010. At the time, he was designated to the United States Penitentiary in Bruceton Mills, West
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Virginia (“USP Hazleton”). He has since been designated to the Federal Correctional Institution
in Cumberland, Maryland. In its entirety, the Complaint states:
THE DESIGNATION AND SENTENCE COMPUTATION
CENTER, AND THE RECORDS OFFICE (INMATE SYSTEMS
MANAGERS OFFICE) AT USP HAZELTON BOTH HAVE
MISS CALCULATED MY SENTENCE COMPUTATION BY
NOT APPLYING THE “DISTRICT OF COLUMBIA
GOODTIME CREDITS ACT” FOR OFFENSES COMMITTED
ON OR AFTER APRIL 11, 1987, UNTIL JUNE 21, 1994.
SPECIFICALLY, 24 DSC § 428 INSTITUTION GOOD TIME,
OFF THE MINIMUM AND MAXIMUM TERM, AND 24 DSC §
429 EDUCATION GOOD TIME OFF THE MINIMUM AND
MAXIMUM TERM. THEREBY MAKING (MYSELF) MISS
MY PAROLE ELIGIBILITY DATE BY ONE YEAR, AND
COUNTING. I HAVE EXHAUSTED ALL ADMINISTRATIVE
REMEDIES. I AM SEEKING $7,000,000 IN ACTUAL
DAMAGES, AND RELEASE FROM INCARCERATION.
Plaintiff named two Defendants: Terry O’Brien, the Warden of USP Hazelton, see Defs.’
Opp. to Pl.’s Mot. to Remand, Decl. of Terry O’Brien, ¶ 1, and Jose Santana, the Chief of the
BOP’s Designation and Sentence Computation Center (“DSCC”). Id., Decl. of Jose Santana, ¶
1. Each Defendant is a full-time career employee of the BOP and has held his position since
2010. O’Brien Decl. ¶¶ 1, 3; Santana Decl. ¶¶ 1, 3.
The Superior Court for some reason classified Plaintiff’s case as a personal-injury
lawsuit. See Information Sheet, Civ. No. 8231-10 (D.C. Super. Ct., filed Oct. 30, 2010).
According to the Superior Court docket, summonses were issued on November 10, 2010, and
service by certified mail was made on Defendant O’Brien on November 4, 2010, and on
Defendant Santana on November 5, 2010. Neither Defendant responded to the Complaint, and
the Clerk of Superior Court entered a default as to both on January 20, 2011. Four days later,
Plaintiff filed a motion for default judgment, following which Defendants removed the matter to
this Court under 28 U.S.C. §§ 1441 and 1442(a)(1) on January 31, 2011.
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On Feb. 22, 2011, Defendants moved to set aside the Superior Court default and also
sought dismissal or summary judgment. In their pleadings, Defendants argued that dismissal
was proper whether they were sued in their individual or official capacities, and that the United
States, were it substituted as a party, should also be dismissed. Mot. at 4-14. Plaintiff responded
that removal was improper because he “did not file a civil action against the Federal Bureau of
Prisons, or the United States or an officer thereof, but Plaintiff did file a civil action against
independent contractors, Terry O’Brien and Jose Santana . . . .” Pl. Rep. to Defs.’ Notice of
Removal at 1-2 (emphasis original). The Court construes this pleading as a motion for remand
under 28 U.S.C. § 1447(c). The Government then filed a Supplemental Motion to Dismiss,
which included a certification that O’Brien and Santana “were acting within the scope of their
employment as employees of the [BOP] at the time of the allegations stated in the complaint.”
Supp. Mot. to Dismiss, Certification of Rudolph Contreras, Chief, Civil Division, Office of the
United States Attorney for the District of Columbia, dated April 1, 2011.
II. Legal Standard
Rule 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a
claim upon which relief can be granted.” When the sufficiency of a complaint is challenged
under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be
liberally construed in plaintiff’s favor. Leatherman v. Tarrant Cty. Narcotics & Coordination
Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are “not meant to impose a great
burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she
must thus be given every favorable inference that may be drawn from the allegations of fact.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555,
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“a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation
omitted). Plaintiff must put forth “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. Though a plaintiff may
survive a 12(b)(6) motion even if “recovery is very remote and unlikely,” Twombly, 550 U.S. at555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint
“must be enough to raise a right to relief above the speculative level.” Id. at 555.
When ruling on a motion to dismiss for improper venue, the Court is not limited to the
pleadings where extrinsic material is submitted. Faulkenberg v. CB Tax Franchise Systems, LP,
637 F.3d 801, 809-10 (7th Cir. 2011). In such a motion, the pleadings need not be accepted as
true, and the Court may accept facts outside the pleadings. Murphy v. Schneider National, Inc.,
362 F.3d 1133, 1137 (9th Cir. 2004).
III. Analysis
A. Removal
In seeking a remand back to Superior Court, Plaintiff first challenges the propriety of
Defendants’ removing the case to this Court. A notice of removal must be filed “within thirty
days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. §
1446(b). Plaintiff argues that, as Defendants were served more than thirty days prior to the filing
of the notice of removal, such notice is untimely. Pl.’s Rep. at 2. Defendants correctly point out,
however, that they were never properly served. Under Federal Rule of Civil Procedure 4(i), a
plaintiff suing an employee of the United States in his individual or official capacity must serve
the United States. In this case, this requires delivery of the summons and complaint to the
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United States Attorney for the District of Columbia and the Attorney General of the United
States. Rule 4(i)(1). The Supreme Court has interpreted the statute to require formal service in
order for the thirty-day removal period to begin running. Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344 (1999). Given that the 30-day period never commenced here,
Plaintiff cannot prevail on his remand argument.
Since no service was properly effected, furthermore, the entry of default against
Defendants was improper. Under Rule 55(c), “[t]he court may set aside an entry of default for
good cause.” “In exercising its discretion, the district court is supposed to consider whether (1)
the default was willful, (2) a set-aside would prejudice plaintiff, and (3) the alleged defense was
meritorious.” Mohamad v. Rajoub, 634 F.3d 604, 606 (D.C. Cir. 2011) (internal quotations and
citation omitted). The default was not willful where Defendants, not having been served, had no
duty to respond to the Complaint, and their alleged defenses are meritorious. In addition,
Plaintiff is not prejudiced where he did not comply with the Federal Rules. Vacating the default
is thus clearly appropriate. See Bennett v. United States, 462 F. Supp. 2d 35, 38 (D.D.C. 2006)
(Court found that good cause existed to set aside default because federal defendant was not
properly served in accordance with Fed. R. Civ. P. 4(i)); PEPCO v. China Constr. America Inc.,
2009 WL 3163058 at *1 (D.D.C. 2009) (vacating Superior Court default in removed case).
B. Individual and Official Capacities
Plaintiff claims he is bringing this action against O’Brien and Santana in their individual
capacities because they are “independent contractors,” rather than federal government
employees. Pl. Rep. at 1. Simply saying so, however, does not make it so, and the record shows
the contrary. Each defendant is a full-time career employee of the BOP and has held his position
since 2010. O’Brien Decl. ¶¶ 1, 3; Santana Decl. ¶¶ 1, 3. Whether this action purports to be one
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against Defendants in their individual or official capacities, it must be converted to one against
the United States. As the D.C. Circuit has explained:
The Federal Tort Claims Act is a limited waiver of the
Government's sovereign immunity. Under the FTCA, plaintiffs
may sue the United States in federal court for state-law torts
committed by government employees within the scope of their
employment. 28 U.S.C. §§ 1346(b), 2671-80. But the FTCA does
not create a statutory cause of action against individual
government employees.
If a plaintiff files a state-law tort suit against an individual
government employee, a companion statute-the Westfall Act-
provides that the Attorney General may certify that the employee
was acting within the scope of employment “at the time of the
incident out of which the claim arose.” 28 U.S.C. § 2679(d)(1).
Upon the Attorney General's certification, the tort suit
automatically converts to an FTCA “action against the United
States” in federal court; the Government becomes the sole party
defendant; and the FTCA's requirements, exceptions, and defenses
apply to the suit. Id.Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008) (footnote omitted). In this case, since
the Westfall Act certification has been made, the United States is the only proper Defendant. See
Contreras Cert. Plaintiff does not dispute this, nor could he given that sentence calculations by
prison officials are clearly acts taken within the scope of their employment.
As the United States is the sole proper Defendant here, the Court must now determine
whether venue is proper under the FTCA.
C. Improper Venue
Venue for any FTCA claim lies only in the judicial district where the plaintiff resides or
where the cause of action arose. 28 U.S.C. § 1402(b); Shipley v. Bureau of Prisons, 729 F. Supp. 2d
272, 275 (D.D.C. 2010). Plaintiff currently resides in Maryland, not the District of Columbia, since
he is incarcerated at FCI Cumberland, having been transferred from USP Hazelton. Venue would
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only be proper, therefore, if the cause of action arose here in the District. Under the FTCA, a tort
claim arises at the place where the alleged tortious act occurred. Beattie v. United States, 592 F.
Supp. 780, 784 (D.D.C. 1984), aff’d, 756 F.2d 91 (D.C. Cir. 1984). Plaintiff’s allegations here relate
to events -- namely, the alleged miscalculation of his sentence -- that he believes took place at USP
Hazelton or at DSCC in Grand Prairie, Texas. In other words, there is no allegation that any
calculation of his prison sentence took place in the District. As a result, the District of Columbia is
an improper venue for Plaintiff’s FTCA claims. See Hemmings v. United States, 373 Fed. Appx. 82(D.C. Cir. 2010) (affirming dismissal of FTCA claims for lack of venue because appellant did not
live in the District of Columbia and his claims related to alleged mistreatment at facilities outside of
D.C.).
D. Habeas Claim
Although it is not styled as such, Plaintiff’s claim is in actuality one that should have
been brought in a habeas corpus petition. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)
(habeas is exclusive remedy for state prisoner’s attack on revocation of good-time credits). If he
had done so, however, venue here would still be improper. This is because he is not confined in
the District of Columbia, and the acts he complains of did not occur here. See, e.g., Rumsfeld v.
Padilla, 542 U.S. 426, 442 (2004) (traditional rule has been that “Great Writ is issuable only in
the district of confinement”) (internal quotation and citation omitted); In re Mendez, 2009 WL
2981978 at *1 (D.C. Cir. 2009) (“Even if petitioner has asserted damages claims that do not
sound in habeas, venue is appropriate in that judicial district[] where petitioner is confined and a
substantial part of the events or omissions giving rise to the claims occurred.”) (Citation
omitted); Wyatt v. United States, 574 F.3d 455, 460 (7th Cir. 2009) (“the proper venue for filing
a § 2241 petition is the district in which the prisoner is confined”) (citations omitted).
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IV. Conclusion
The Court will thus issue an Order this day that dismisses the case without prejudice for
Plaintiff to refile, if he so chooses, in the appropriate forum.
JAMES E. BOASBERG
United States District Judge
DATE: September 12, 2011
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