MEMORANDUM OPINION
This matter is before the Court on defendants’ motion to dismiss. For the reasons discussed herein, the Court will deny the motion without prejudice, and transfer this action to the United States District Court for the Eastern District of North Carolina.
I. BACKGROUND
Plaintiff is a federal prisoner who currently is incarcerated at a Federal Correctional Institution in Butner, North Carolina (“FCI Butner”). He is legally blind, see Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”), Ex. B (Health Services Clinical Encounter dated June 9, 2009) at 1, and has undergone transplants of both corneas, Compl. at 8 (page number designated by the Court). 1
In February 2007, plaintiff began to “experience [ ] extreme eye pain,” Compl. at 8, which he reported to medical staff at the Butner Federal Medical Center (“FMC Butner”) on several occasions, id. Both eyes had become infected, and plaintiff underwent a procedure at the Duke Medical Center in May 2007 designed to stop the leakage of fluid from the eyes and to relieve the pain. Id. Apparently the procedure was not effective, and plaintiff again experienced extreme pain. Id. He complained of his condition to medical staff, and in June 2008 he was returned to the Duke Medical Center for treatment. Id. Notwithstanding instructions to return one month later, plaintiff was not sent back to Duke Medical Center until December 18, 2008. Id. at 9. Plaintiff neither has received further treatment at FMC Butner staff nor has been referred elsewhere for treatment. Id.
Plaintiff attributes the deterioration of his eyesight and eye pain to defendants’ refusal to provide adequate medical care for his eyes, see Compl. at 8-9, and defendants’ alleged deliberate indifference to his medical needs have “caused [him] to suffer and endure extreme harm and physical damages, in addition to excru[c]iating pain to the eyes.” Id. at 10. These allegations are the basis of his claim under the Eighth Amendment to the United States Constitu *274 tion “to be free from Cruel and Unusual Punishment])]” Id. Because defendants allegedly have refused to address grievances he has filed through the BOP’s Administrative Remedy Program, he alleges violations of his rights to due process and equal protection under the Fifth Amendment to the United States Constitution. Id. at 10. In addition, plaintiff contends that the defendants “conspired to and have also deprived [him] of his Civil and Constitutional Rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments.” Id. at 11. He demands injunctive relief and compensatory and punitive damages. Id. at 12.
Defendants Lappin, Ramsey, Libero, Blair, Bonner, Spiller, Hunter-Busky, and Autry are sued both in their official capacities and in their individual capacities under
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
In addition, plaintiff brings a negligence claim against the United States under the Federal Tort Claims Act (“FTCA”), see 28 U.S.C. 1346(b), and demands damages of $1 million. 3 See Compl. at 2-3; Defs.’ Mem., Ex. J (Cox Deck), Ex. C (Claim for Damage, Injury, or Death dated October 9, 2008).
II. DISCUSSION
Defendants move to dismiss on the grounds that the Court lacks subject matter jurisdiction and personal jurisdiction, improper venue, insufficient service of process, and for failure to state a claim upon which relief can be granted. Although certain of defendants’ arguments are meritorious, the Court focuses on one: improper venue.
See
Defs.’ Mem. at 16-17. “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,
Plaintiff asserts that the District of Columbia “is ... the most convenient forum” because “two of the defendants, including Harley G. Lappin, Director of the [BOP], is located in Washington, D.C.” Compl. at 3. Defendants argue that, “[t]o the extent [the] complaint can be construed as making claims against the [i]ndividual [defendants personally,” the complaint must be dismissed for improper venue. Defs.’ Mem. at 16.
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). Insofar as the BOP is headquartered in the
*275
District of Columbia and its Director and Administrator of National Appeals are named defendants in their official capacities, venue in this district is not improper.
See Nestor v. Hershey,
An action brought under the FTCA “may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” 28 U.S.C. § 1402(b).
4
“Under the prevailing interpretation of section 1402(b), venue is proper in the District of Columbia if sufficient activities giving rise to plaintiffs cause of action took place here.”
Franz v. United States,
In a case filed in a jurisdiction in which venue is improper, the Court shall either dismiss or, in the interest of justice, 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,
Plaintiff remains incarcerated at FCI Butner, and most of the individual defendants apparently reside in North Carolina and work at FCI Butner. It appears that the Eastern District of North Carolina has personal jurisdiction over most of the individual defendants, and any deficiencies with respect to the service of process can be corrected. It is likely that witnesses, medical records and other evidence are located in North Carolina.
Assuming without deciding that the claims set forth in the complaint are meritorious, they are better addressed in the United States District Court for the Eastern District of North Carolina. The Court will transfer this action.
See, e.g., Galindo v. Gonzales,
An Order accompanies this Memorandum Opinion.
Notes
. Plaintiff represents that he "received cornea transplants at the Aspen Center, Dallas Texas, ... in the fall of 1988, and did not experience any sight difficulties until Februar[y] 1995, when he was incarcerated and medications were taken from him by the United States [M]arshal[ ]s.” Pl.’s Mot. and Argument in Opp'n to Defs.' Mot. to Dismiss at 2. He alleges that the deprivation of medications and lack of proper treatment while incarcerated "resulted in the need for ... cornea transplant operation^] in 2004 and 2005.” Id. at 2.
. Defendant Presbyla has been dismissed. See September 29, 2009 Minute Order.
. In his FTCA claim, plaintiff alleged that his "sight began to get worser [sic]” after cornea transplants in 2004 and 2005. Defs.' Mem., Ex. J (Cox Deck), Ex. C (FTCA claim dated October 9, 2008). The BOP denied the claim on October 27, 2008. Id., Ex. D (October 27, 2008 letter from M.T. Finseyamore, Regional Counsel, Mid-Atlantic Region, BOP, regarding Administrative Tort Claim Number TRT-MXR-2007-00417). Plaintiff described his injury as follows:
Irreversable [sic] damages and injury to eyes do [sic] to medical staff’s refusal to act immediately to treat the first injury and allowing me not to get the medical attention at right time.
Id., Ex. C.
. Only the United States is a proper defendant to a claim under the FTCA. 28 U.S.C. §§ 1346(b)(1), 2679(a);
Cox v. Sec'y of Labor,