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Stine v. Bureau of Prisons

United States District Court, D. Colorado

May 24, 2018

BUREAU OF PRISONS, et al., Defendants.



         I. Introduction

         Plaintiff, a federal prisoner proceeding pro se, filed a civil rights action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and also filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. As discussed below, the undersigned orders that plaintiff's second claim in his amended complaint be severed and transferred to the District of Colorado, with a request that the court treat it as a civil rights complaint, along with a copy of plaintiff's request to proceed in forma pauperis, and his recent motion for injunctive relief.

         II. Venue Standards

         The federal venue statute provides that a civil action “may be brought in (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 subject of the action is situated, or (3) if there is no district in which an action may otherwise be brought as provided in this action, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b).

         III. Original Complaint

         On March 29, 2018, plaintiff filed a complaint alleging that various officials with the Bureau of Prisons (“BOP”), including defendants located within this court's jurisdiction, violated plaintiff's rights to due process and wrongfully validated him as an Aryan Brotherhood gang member in retaliation for plaintiff filing federal complaints and administrative filings. As causes of action, plaintiff alleged failure to protect, intentional interference with access to the courts, and cruel and unusual punishment in violation of the Eighth Amendment. (ECF No. 1 at 6.)

         IV. Amended Complaint

         On May 14, 2018, plaintiff filed a first amended complaint as of right. Fed.R.Civ.P. 15. Plaintiff renewed his claim that his due process rights were violated by the alleged wrongful gang validation. But plaintiff also included a second, wholly unrelated claim, identified as “Claim II.”[1]In this second claim, plaintiff alleges that defendants Inch, Director of the BOP, located in Washington, D.C., and Revell, Regional Director, North Central Region, BOP, located in Kansas City, Kansas, have developed and implemented a policy addressing the availability of over the counter medications available to indigent prisoners through the inmate store, and alleges the policy violates plaintiff's constitutional rights. Plaintiff also alleges that defendant Connors had a duty to correct the policy but failed to do so. (ECF No. 6 at 15.)

         This policy is not related to plaintiff's gang validation status, and there are no factual allegations tying the second claim to any defendant located in Sacramento or in the jurisdiction of the Eastern District of California. The challenged policy was implemented at the Florence ADMAX U.S. Penitentiary in Florence, Colorado, where plaintiff is incarcerated, and the two defendants named in connection therewith reside in Washington, D.C., and Kansas City, Kansas. Therefore, plaintiff's second claim should have been filed in the United States District Court for Colorado. In the interest of justice, a federal court may transfer a complaint filed in the wrong district to the correct district. See 28 U.S.C. § 1406(a); Starnes v. McGuire, 512 F.2d 918, 932 (D.C. Cir. 1974). Because the second claim can be severed from the amended complaint, the undersigned will sever plaintiff's second claim, and direct the Clerk of the Court to transfer only those portions relevant to plaintiff's second claim, including exhibits 9-11. (ECF No. 6 at 1-4; 13-15; 17; and 43-48.)[2]

         Plaintiff's first and third claims will proceed in this action, and the undersigned will address such claims by separate order.

         V. Motion for Emergency Injunctive Relief

         In addition, on May 22, 2018, plaintiff filed an emergency motion for temporary restraining order and preliminary injunction, in which he explains how the alleged policy negatively impacts plaintiff's serious medical conditions, alleging that due to his ...

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