Jordan v. US Bureau of Prisons ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARK JORDAN, )
)
Plaintiff, )
)
v. ) Civil Action No. 21-cv-00614 (CKK)
)
)
US BUREAU OF PRISONS, )
)
Defendant. )
MEMORANDUM OPINION
Plaintiff Mark Jordan is in the custody of the Federal Bureau of Prisons (“BOP”) and is
currently, and at all times relevant to the Complaint (“Compl.”), ECF No. 1, designated to the
United States Penitentiary located in Tucson, Arizona (“USP Tucson”). He sues the BOP under
the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., seeking review of a prison
disciplinary determination. Compl. at 1. BOP has filed a Motion to Transfer (“MTT”), ECF No.
10, this matter pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the District
of Arizona, which Plaintiff opposes, ECF No. 14 (“Opp’n”). 1 For the reasons discussed below,
BOP’s Motion to Transfer will be granted and this matter will be transferred to the District of
Arizona.
I. BACKGROUND
1
On June 14, 2021, Plaintiff filed a Motion for Extension of Time, ECF No. 12, to file his
Opposition, which he then filed on July 28, 2021, approximately a month and a half beyond the
deadline. Plaintiff has shown good cause for an extension, namely, frequent prison-lockdowns
and logistical issues arising from COVID-19 protocols at USP Tucson, as well as delayed receipt
of BOP’s Motion to Transfer. See id. at 1–2. Furthermore, BOP has not opposed this request for
extension. Therefore, the Court will grant nunc pro tunc Plaintiff’s Motion for Extension.
1
Plaintiff initiated this lawsuit on March 5, 2021, “seeking review of an agency decision”
under the APA. Compl. ¶ 1. He asks this Court to declare and overturn “his prison disciplinary
conviction for ‘running a business’ as arbitrary, capricious, an abuse of discretion, unsupported by
substantial evidence, not in accordance with and without procedures required by law, and
otherwise [based] upon factual lacking substantial evidentiary record support.” Id. More
specifically, he seeks to vacate and expunge a determination, resulting from a July 2019 hearing,
and held by the Unit Discipline Committee (“UDC”) at USP Tucson. See id. ¶¶ 21–7; id. at p. 8.
Plaintiff was found guilty of the prohibited act of “conducting a business without authorization.”
See id. ¶¶ 10–24. He was sanctioned with a 120-day loss of commissary privileges. Id. ¶ 23. He
contends that (1) the conviction lacked an adequate evidentiary basis (Claim I), (2) the conviction
was obtained in violation of law because UDC members acted as their own witnesses and
investigators (Claims II and III), and (3) UDC lacked statutory authority to impose any disciplinary
sanction other than a loss of good-conduct time (Claim IV). 2 See id. at pp. 7–8.
As background, on July 15, 2019, USP Tucson prison guards executed a “shakedown” of
Plaintiff’s cell and confiscated various unopened food items and a notebook entitled “store,” that
“contained names and figures.” See id. ¶ 10. Plaintiff maintains that all of these food items were,
as far as he knows, properly purchased from the prison commissary by his cellmate, Nicholas
Turning Bear (“Turning Bear”). See id. ¶¶ 10–13.
2
Plaintiff does not further expound upon this particular point and presents no arguments or
facts in support of the claim. The Court notes that it has already fully addressed this argument in
another matter recently filed by Plaintiff, Jordan v. BOP, No. 20-1478 (D.D.C. filed June 1, 2020),
dismissed pursuant to Federal Rules 12(b)(1) and (b)(6) on September 13, 2021, see Memorandum
Opinion, ECF No. 24, and Order, ECF No. 25, which the Court incorporates herein by reference,
and therefore, need not readdress. That matter is currently on appeal. See Notice of Appeal (Oct.
24, 2021), ECF No. 26.
2
Plaintiff and Turning Bear were then summoned to the “USP Tucson lieutenant's office,
where they were met by SIS Technician Anthony Gallion.” Id. ¶ 13. Plaintiff contends that, at the
meeting with Gallion, Turning Bear admitted that the food items and the “store” ledger solely
belonged to him. Id. ¶ 13. Gallion then had Turning Bear formally acknowledge his responsibility
by signing “BOP Form 402, Confiscation and Disposition of Contraband Form.” Id. ¶ 14; see
Compl. Exhibits (“Exs.”), ECF No. 1-1, at Ex. A, at 3 (Form 402). According to Plaintiff, Gallion
also “advised Turning Bear that he would not be receiving an incident report but would have to
donate the [confiscated] property to the institution[.]” Compl. ¶ 14
According to Plaintiff, on the following day, July 16, 2019, he and Turning Bear “were
again summoned to the lieutenant's office,” and once there, “Lieutenant O. Lopez” informed them
that they would each be receiving incident reports and would be charged with “violations of BOP
prohibited act codes 305 (Possessing Unauthorized Items) and 334 (Conducting a Business
Without Authorization).” Id. ¶ 16. Plaintiff and Turning Bear were confused and contested the
issuance of these impending incident reports, given the contradictory information they had
purportedly received the day before from Gallion. See id. Plaintiff explained to Lopez that he
could not have plausibly had any involvement because “had only just recently been assigned to
the cell [with Turning Bear] from the segregation unit.” See id. ¶ 16. He also explained that “he
had no excessive property or ledger and did not think it was a ‘store.’ ” Id.Nonetheless, Plaintiff “was assigned Incident Report #3279425, while Turning Bear was
assigned Incident Report #3279426.” Id. ¶ 18; see Compl. Ex. A at 1 (Turning Bear’s Incident
Report); Ex. B at 1 (Plaintiff’s Incident Report). The incident reports are identical, providing a
list of the confiscated “commissary items,” and alleging that “both inmates appeared to be running
a business with an excessive amount of commissary items . . . [that] could not be stored inside
3
their wall locker or issued storage bag,” further evidenced by the ledger. See Compl. ¶ 18 (citing
Compl. Ex. A at 1; Compl. Ex. B at 1). The incident reports also state that the “inmates denied
ownership of the items found,” Compl. Ex. A at 1; Compl. Ex. B. at 1, which Plaintiff contends
contradicts Turning Bear’s prior ownership admission to Gallion, and his execution of Form 402,
see Compl. ¶ 17.
Thereafter, Plaintiff and Turning Bear had separate hearings. See id. ¶¶ 18–24. On July
17, 2019, UDC held a hearing for Turning Bear. Id. ¶ 19. According to Plaintiff, the UDC hearing
officials attempted to pressure Turning Bear into implicating Plaintiff, but Turning Bear continued
to take full responsibility for the food items and ledger, absolving Plaintiff of any participation.
See id.Meanwhile, UDC’s documentation indicates that, at his hearing, Turning Bear admitted to
both his and, ostensibly, Plaintiff’s involvement, testifying that “[y]es, we were running a store[,]”
Compl. Ex. A at 2 (UDC Hearing Determination for Turning Bear); see Compl. ¶ 20. Based on
this admission, and in conjunction with the incident report, the confiscated food items and ledger,
and prison trust fund account statements (which evidenced suspicious financial deposits), UDC
found that Turning Bear was guilty of “prohibited acts of both codes 305 and 334, sanctioning him
to 30 days commissary restriction.” See id.Later that morning, UDC held Plaintiff’s hearing. See Compl. ¶ 21; Compl. Ex. B at 2
(UDC Hearing Determination for Plaintiff). Plaintiff states that, “at the outset of the hearing,” he
requested to “call witnesses,” more specifically, Turning Bear, but he was informed by the UDC
hearing officials that witnesses could not be called at a UDC proceeding. See Compl. ¶ 21.
Plaintiff now acknowledges that he was not, in fact, entitled to call witnesses. See id. (citing 28
CFR 541.7) (other citation omitted). At his hearing, Plaintiff again denied ownership of any of
4
the confiscated food items, and recounted Turning Bear’s prior admissions of responsibility. See
id. ¶ 22; Compl. Ex. B at 2.
Ultimately, UDC found that Plaintiff “committed the prohibited act of code 334, running a
business without authorization, and sanctioned him to loss of commissary for 120 days,” which
Plaintiff contends has prohibited him from purchasing “items essential to his religious exercise.”
Id. ¶ 23; Compl. Ex. B at 2; see Compl. Ex. C at 1–3 (Plaintiff’s Separate Administrative
Complaints and Appeal in re: Denial of Religious Expression). UDC predicated its findings on
Plaintiff’s incident report, Turning Bear’s admission (at his own hearing) that he and Plaintiff were
“running a store,” and trust fund accounting. See Compl. ¶ 24; Compl. Ex. B at 2. It does not
appear that UDC ultimately pursued the other charge against Plaintiff, namely, “Code 305
(possessing anything unauthorized).” See Compl. ¶ 23; Compl. Ex. B at 2.
Plaintiff argues that there is no evidence in UDC’s record to support its reliance on the trust
fund accounting, and to the extent that the accounting is derived from “evidence the UDC obtained
through independent investigation,” he contends that UDC violated 28 CFR 541.7(b), which
prohibits UDC members from acting as investigators.” Compl. ¶ 25. He further challenges the
legitimacy of UDC’s determination, arguing that it had no right to rely on Turning Bear’s
testimony at a different hearing, because Plaintiff could not call him as a witness at his own. See
id. ¶ 27. Moreover, Plaintiff maintains that Turning Bear’s hearing admission makes the UDC
hearing officials the sole de facto “witnesses” to Turning Bear’s testimony, in contravention of 28
CFR 541.7(b). See id. ¶¶ 27, 29. Finally, Plaintiff denies that his incident report was incriminating
or could serve as a basis for the UDC’s findings, because he UDC “cleared [him] . . . of the Code
305 charge of possessing any unauthorized items (commissary/store items or ledger).” Id. ¶ 26.
He seems to imply that the incident report pertains primarily to the alleged possession of
5
unauthorized commissary items, rather than the charge he was eventually convicted of, namely,
running a store, see id., though the Court notes that the incident report charges Plaintiff with both
“Code 305” and “Code 334,” see Compl. Ex. B at 1.
Thereafter, Plaintiff unsuccessfully pursued relief from UDC’s determination through
BOP’s Administrative Remedy Program, see id. ¶¶ 28, 30, first through his Complex Warden at
USP Tucson (“Warden”), see Compl. Ex. B at 3–8 (Plaintiff’s Appeal Documents & Denial
Determination from Appeal to Warden), then to Gene Beasley, the BOP Regional Director for the
Western Region (“WXR”), see id. at 9–11 (Plaintiff’s Appeal Documents & Denial Determination
from Appeal to WXR) (located in Stockton, California), see id. at 8 (indicating that WXR is in
Stockton), and finally, to National Inmate Appeals Administrator (“NIAA”) located in BOP’s
Central Office in the District of Columbia, see id. at 12–14 (Plaintiff’s Appeal Documents to BOP
Central Office). 3
II. STANDARDS
A. Venue for APA Claims
“APA and constitutional claims are governed by the general federal venue provision 28
U.S.C. § 1391,” which applies to civil actions brought against the United States and its agencies,
or its officials acting in their official capacity. Colley v. James, 254 F. Supp. 3d 45, 70–1 (D.D.C.
3
Plaintiff attaches his initial Form and Memorandum (dated March 16, 2020) in support of
his Central Office/NIAA appeal, Compl. Ex. B at 12–13, as well as subsequent correspondence
(dated July 6, 2020) from Central Office/NIAA granting his request for additional time to submit
arguments and documentation and providing him with a submission deadline of August 15, 2020.
id. at 14. He does not, however, submit a copy of his additional documentation, or more
importantly, the final determination from the Central Office/NIAA regarding the challenged
determination. For the purposes of this Motion, and taking Plaintiff at his word, see Compl. ¶ 30
(attesting to full exhaustion), the Court assumes that he received a final Central Office/NIAA
determination, however, the Court notes that under the APA, a “final agency action” is necessary
prior to judicial review, see 5 U.S.C. § 704; see also McCoy v. Cardamone, 646 F. Supp. 1143,
1144–45 (D.D.C. 1986).
6
2017); Poullard v. Federal Bureau of Prisons, 535 F. Supp. 2d 146, 148–50 (D.D.C. 2008) (finding
same). Section 1391 holds that an action “may be brought in any judicial district in which (A) a
defendant in the action resides, (B) 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 (C)
the plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 1391(e)(1).
B. Motion to Transfer Venue
Federal venue statute, 28 U.S.C. § 1406(a), 4 requires that a district court “dismiss, or if it
be in the interest of justice, transfer” a case, which is filed “in the wrong division or district.”
“Whether venue is ‘wrong’ or ‘improper’ depends exclusively on whether the court in which the
case was brought satisfies the requirements of federal venue laws[.]” Id. While this provision
allows for dismissal of a case filed in the wrong venue, BOP has not requested dismissal, but
instead seeks a transfer of this matter to the District of Arizona pursuant to 28 U.S.C. § 1404(a).
Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other district or division where it might
have been brought.” Id.“Under Section 1404(a), the moving party bears the burden of establishing that transfer is
proper.” Gulf Restoration Network v. Jewell, 87 F. Supp. 3d 303, 310 (D.D.C. 2015) (citing Trout
Unlimited v. U.S. Dep't of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996)). First, the moving party
must show that “venue is proper in the transferee court,” Montgomery v. Barr, 502 F. Supp. 3d
165, 173 (D.D.C. 2020), and if successful, transfer under Section 1404(a) is justified “[e]ven where
4
“[T]he framework for assessing a transfer under § 1406(a) is essentially identical to that
under § 1404(a)[.]” Melnattur v. Citizen. & Immig. Srvs., No. 20-3013, 2021 WL 3722732, at *3
n.4 (D.D.C. Aug. 23, 2021).
7
a plaintiff has brought its case in a proper [transferring] venue.” Preservation Soc'y of Charleston
v. U.S. Army Corps of Eng'rs, 893 F. Supp. 2d 49, 53 (D.D.C. 2012). Fundamentally, this question
“turns on the general venue statute, 28 U.S.C. § 1391.” Melnattur, 2021 WL 3722732, at *2
(citation and internal quotation marks omitted). Furthermore, “[w]hen the events occur in more
than one district, a court can consider which jurisdiction has the stronger factual nexus to the
claims.” Miller v. Insulation Contractors, Inc., 608 F. Supp. 2d 97, 102 (D.D.C. 2009) (citation
omitted).
If the moving party meets this threshold, the Court then weighs ‘a number of case-specific
factors’ to decide whether a transfer is warranted.” Id. (quoting Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 29 (1988)). These factors concern both private and public interests. See Spotts v.
United States, 562 F. Supp. 2d 46, 52 (D.D.C. 2008). The private interest factors are (1) the parties’
choices of forum, (2) where the claim arose, (3) the convenience of the parties and witnesses,
including the availability of compulsory processes to compel the attendance of unwilling
witnesses, and (4) “the ease of access to sources of proof.” Id. (citations omitted); SEC v. Page
Airways, 464 F. Supp. 461, 463 (D.D.C. 1978).
The public interest factors are (1) the transferee court's familiarity with governing law, (2)
the respective congestion within the transferor and transferee courts’ dockets, (3) “the local interest
in deciding local controversies at home[,]” Spotts 562 F. Supp. 2d at 52–3, and (4) and any “other
practical aspects of expeditiously and conveniently conducting a trial[,]” Page Airways, 464 F.
Supp. at 463. “Courts do not apply these factors mechanically,” Montgomery, 502 F. Supp. 3d at
174 (citing Starnes v. McGuire, 512 F.2d 918, 933 (D.C. Cir. 1974) (en banc)), and the Court has
“discretion . . . to adjudicate motions for transfer according to an “individualized, case-by-case
consideration of convenience and fairness.’ ” Stewart, 487 U.S. at 29 (quoting Van Dusen v.
8
Barrack, 376 U.S. 612, 622 (1964)); see Gulf Rest. Net., 87 F. Supp. 3d at 310–11 (“These factors
are not statutory; rather, they are intended to elucidate the concerns implied by the phrase in the
interest of justice.”) (citation and internal quotation marks omitted).
The District of Columbia Circuit has also established additional “factors that generally will
be relevant to a decision whether to transfer” a matter filed by a prisoner. See Starnes, 512 F.2d
at 929. The “Starnes factors” are (1) the prisoner's difficulty in communicating with counsel, (2)
the difficulty of transferring the prisoner, (3) the availability of witnesses and files, (4) where the
prisoner's immediate custodian is located, (5) the speed of final resolution, and (5) whether the
case involves a national policy issue that may require the testimony of policymakers. Id. at 928–
32; see also Pinson v. Dep't of Justice, 74 F. Supp. 3d 283, 293 n.19 (D.D.C. 2014) (listing the
Starnes factors); Thomas v. United States, 779 F. Supp. 2d 154, 158 (D.D.C. 2011) (same).
III. DISCUSSION
BOP seeks transfer of this matter, contending that venue is proper in the District of Arizona
under 28 U.S.C. §1391, because the crux of the Plaintiff’s claims arise from challenges to actions
and determinations rendered by officials and staff at USP Tucson. See MTT Memorandum (“MTT
Mem.”), ECF No. 10, at 5–6. The Court agrees that, aside from the brief involvement of the
NIAA and WXR (the latter of which is, incidentally, not located in this District), every single
occurrence giving rise to Plaintiff’s claims occurred at USP Tucson, by individuals located at USP
Tucson. Therefore, at the outset, the Court finds that this case could have been properly brought
in the District of Arizona. See Montgomery, 502 F. Supp. 3d at 173. “Having established the
propriety of venue” in the District of Arizona, “the Court now turns to whether it is in the interest
of justice to transfer this case to either proposed of those courts.” Melnattur, 2021 WL 3722732,
at *4.
9
Plaintiff maintains that venue is “appropriate in this district under 28 USC [§] 1391 because
it is the district in which the defendant resides.” Compl. ¶ 4. In opposition to transfer, he first
argues that the District of Arizona is improper because, despite his incarceration there, “he is a
resident of Pennsylvania,” and that, in the near future, he may be transferred “to a prison with[]in
500 driving miles of his Pennsylvania residence as mandated by the First Step Act, 18 USC [§]
3621(b).” Opp’n at 2–3; see Plaintiff’s Supplemental Exhibits (“Supp. Exs.”), ECF No. 13, at 3–
4 (Plaintiff’s Separate Appeal Documents & Central Office/NIAA Denial Determination in re:
Plaintiff’s Request for Transfer to Lesser Security Prison closer to Pennsylvania). Second, he
argues that this matter should remain in this District because he is challenging a final agency action
under the ADA, which he eventually exhausted through the BOP Central Office, located in the
District of Columbia. See Opp’n at 2, 5–6; see also Compl. Ex. B at 12–14. Ultimately, the Court
finds Plaintiff’s arguments unpersuasive.
First, though a court gives some deference to a plaintiff’s forum choice, it gives
“substantially less deference when the forum preferred by” a plaintiff “is not his home forum.”
McGlamry v. Lappin, No. 06-143, 2006 WL 1382185, at *2 (D.D.C. May 18, 2006) (citing Piper
Aircraft v. Reyno, 454 U.S. 235, 255–56 (1981) and Boers v. United States, 133 F. Supp. 2d 64,
65 (D.D.C. 2001)). The District of Columbia is not Plaintiff’s home forum. And, despite his
arguments to the contrary, see Opp’n at 2–3, according to the law of the District of Columbia
Circuit, for venue purposes, a prisoner “resides” where he is incarcerated. See In re Pope, 580
F.2d 620, 622 (D.C. Cir. 1978) (per curiam) (citation omitted); Void–El v. O'Brien, 811 F. Supp.
2d 255, 260 (D.D.C. 2011); Zakiya v. United States, 267 F. Supp. 2d 47, 58–59 (D.D.C. 2003).
Therefore, Plaintiff is considered a resident of Arizona.
10
Additionally, though Plaintiff anticipated a potential transfer to a prison closer to
Pennsylvania, the renewed consideration for his transfer was apparently conducted on or about
July 28, 2021, see Opp’n at 2–3; see Supp. Exs. at 4, and to date, Plaintiff remains at USP Tucson.
Even if Plaintiff was, in fact, transferred to a facility in or near Pennsylvania, he would still not
likely be considered a resident of the District of Columbia. And then even if he were, in fact,
transferred to a prison in the District of Columbia, it would not necessarily make the District of
Arizona any less appropriate for purposes of venue. Regardless, these are all hypothetical
situations, as Plaintiff remains at USP Tucson.
Second, and as noted by BOP, see MTT Mem. at 5–6, courts in this jurisdiction must
examine venue “carefully to guard against the danger that a plaintiff might manufacture” it in the
District of Columbia. Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). By bringing
suit against a federal agency, see id., or by “recasting local determinations as ‘broad national policy
directives,’ ” PSV Enters. LLC v. U.S. Citizen. & Imm. Srvs., No. 20-cv-2287, 2021 WL 2115251,
at *3 (D.D.C. May 25, 2021) (quoting EfficientIP, Inc. v. Cuccinelli, No. 20-cv-01455, 2020 WL
6683068, at *3 (D.D.C. Nov. 12, 2020)), a plaintiff could attempt to bring a suit in the District of
Columbia that should be pursued elsewhere. “Many, if indeed not most,” civil cases “filed by
prisoners not confined in the District of Columbia and not sentenced here originally, will tend to
involve factors that make transfer to the place of incarceration appropriate.” Starnes, 512 F.2d at
926.
Here, Plaintiff seeks review of a disciplinary determination rendered at USP Tucson and
alleges that staff and officials at USP Tucson engaged in wrongdoing. While Plaintiff may have
exhausted, or attempted to exhaust, his appeal of that determination through BOP’s NIAA/Central
Office, the mere presence of an agency’s headquarters in this District is not automatically enough,
11
standing alone, to necessitate venue here, because “he has not described any [] behavior emanating
from BOP headquarters to invoke national policy.” Thomas, 779 F. Supp. 2d at 159 (proposing
transferring prisoner-plaintiff’s remaining claims to his district of incarceration, pursuant to
Section 1404(a), where the only connection to this District was plaintiff’s administrative
exhaustion through the BOP Central Office/NIAA); see Montgomery, 502 F. Supp. 3d at 176–78
(transferring prisoner-plaintiff’s case pursuant to Section 1404(a), which included APA claims
against the BOP, to her district of incarceration, and finding that “this is not a case that challenges
far-reaching national policies that emanate from Washington, D.C. and belongs in this district.
Instead . . . it is a local conditions-of-confinement case.”); see also Melnattur, 2021 WL 3722732,
at *2–3, *5–6 (explaining that transfer of an APA case, challenging a denial determination by
United States Citizenship and Immigration Services, was warranted under Sections 1404(a) and
1406(a) because, while the agency itself is located in this District, the “underlying” “decision-
making process” took place in the District of Nebraska).
If the Court were to predicate venue based on Plaintiff’s proposed analysis, then not only
would every single prisoner seeking review under the APA of any fully exhausted prison
disciplinary determination be heard in this District, but any plaintiff seeking review of any fully
exhausted APA claim would thus bring suit in this District. This is untenable. “[T]here is certainly
no reason why all cases involving . . . a federal statute should be litigated in the District of
Columbia.” Starnes, 512 F.2d at 925 n.7. While undoubtedly some APA claims may be brought
in this District by plaintiffs residing in other jurisdictions, once challenged, there commonly must
be more of a connection to this District than the axiomatic denial of the third stage of an
administrative appeal by the BOP Central Office. See Montgomery, 502 F. Supp. 3d at 175
(finding that not all APA cases, and not even all “national policy” cases may be automatically
12
heard in this District, and instead require a case-by-case determination) (citing Starnes, 512 F.2d
at 928).
Moreover, in analyzing the applicable private and public interest factors, see MTT at 6–7;
Reply at 2–4, the Court finds that transfer is warranted. The private interest factors weigh in favor
of the District of Arizona. Plaintiff prefers this District, but that deference is diminished because
he does not live here and “the relevant events occurred elsewhere.” Shapiro, Lifschitz & Schram,
P.C. v. Hazard, 24 F. Supp. 2d 66, 71 (D.D.C. 1998) (citation omitted). BOP prefers the District
of Arizona. While this is an APA case, and the majority of the information will likely be gleaned
from the administrative record, it would be far more convenient for the parties to proceed in the
District of Arizona, where Plaintiff is located. Furthermore, despite the fact that this case is
brought pursuant to the APA, witnesses may be necessary, and additional claims may be explored,
because Plaintiff alleges that UDC officials and other USP Tucson staff have either negligently or
intentionally engaged in coercion, misrepresentation, and other misconduct, see Compl. ¶¶ 16–17,
19–22, 25–29, which has inevitably resulted in violation of his right to religious expression, see
id. ¶ 23.
To that end, all of the UDC decisionmakers, the Warden and prison staff members, Turning
Bear, and any other potential witnesses, are all located at USP Tucson. See Poullard, 535 F. Supp.
2d at 149–50 (transferring, pursuant to Sections 1404(a) and 1406(a), an APA case challenging
disciplinary actions, filed by prisoner-plaintiff, to his district of incarceration due to “the likelihood
that witnesses and relevant evidence are maintained at FCI Beaumont, and given the difficulty of
transferring an incarcerated plaintiff for purposes of pursuing litigation[.]”); see also McGlamry,
2006 WL 1382185, at *2 (transferring APA case pursuant to Section 1404(a) where prisoner-
petitioner sought injunctive relief and expungement of his disciplinary report by “challenging the
13
disciplinary hearing process and the BOP's failure to abide by its agreement . . . events [that]
occurred at FCI-Jessup” and finding that “[d]ecisions on these issues would be in the authority and
discretion of the Warden at FCI-Jessup. All of the relevant witnesses would be prison staff at that
institution.”). Last, the sources of proof and evidence would all be more accessible in the District
of Arizona, where the cell-search was conducted, the charges were waged, the disciplinary
hearings took place, the underlying challenged determination was issued, and where Plaintiff
alleges that he continues to suffer resulting damages. See id.The public interest factors also tip in favor of the District of Arizona. While both courts
would be equally familiar with the governing law, see In re Korean Air Lines Disaster of Sept. 1,
1983, 829 F.2d 1171, 1175 (D.C. Cir. 1987) (citation and alterations omitted) (“the federal courts
comprise a single system in which each tribunal endeavors to apply a single body of law.”), aff'd
sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989), and this Court cannot speak to
congestion of the District of Arizona’s docket, it must also recognize “the local interest in deciding
local controversies at home[,]” Spotts 562 F. Supp. 2d at 52–3; see also Gulf Rest. Net., 87 F.
Supp. 3d at 313 (“In Administrative Procedure Act (“APA”) cases, a defendant's choice of forum
deserves “some weight” where the harm from a federal agency's decision is felt most directly in
the transferee district.”) (quoting Nat'l Wildlife Fed'n v. Harvey, 437 F. Supp. 2d 42, 46–7 (D.D.C.
2006)).
Here, Plaintiff alleges that he was treated unlawfully and unfairly sanctioned by prison staff
and the UDC at USP Tucson. Clearly, the District of Arizona would have a far more vested interest
in the outcome of this matter, as the prison is located there. See Gulf Rest. Net., 87 F. Supp. 3d at
316 (“The importance of respecting localized interests is equally applicable ‘to the judicial review
14
of an administrative decision which will be limited to the administrative record.’ ”) (quoting Trout
Unlimited, 944 F. Supp. at 19).
Finally, an analysis of the Starnes factors demonstrates that transfer is merited. Plaintiff is
currently proceeding pro se. However, if he were to obtain or be appointed counsel, it would be
considerably more difficult for him to communicate with an attorney in or near this District, when
he could instead, if the case proceeds in the District of Arizona, make use of the resources there to
plausibly find an attorney located far closer to USP Tucson.
Additionally, and as already noted, the Warden, prison staff, and UDC officials, are all
located in Arizona, as are the original files and other possible witnesses. If, for whatever reason,
Plaintiff’s in-person court-attendance is required, it would be quite onerous to transport him across
the country to this District, but to the contrary, would be far more efficient in the District of
Arizona. Moreover, all of these factors bode well for the speed of resolution in the District of
Arizona.
And once again, there is no indication whatsoever that this case involves “a national issue
[in which] federal officials in the District of Columbia had significant involvement in the agency
action.” Intrepid Potash–New Mexico, LLC v. U.S. Dep't of Interior, 669 F. Supp. 2d 88, 96
(D.D.C. 2009). Plaintiff is fundamentally challenging a decision affecting the conditions of his
confinement and his treatment at USP Tucson, “rather than a national policy with connections to
this district.” Montgomery, 502 F. Supp. 3d at 175. Indeed, no “evidence [was taken] from
headquarters officials[,]” id. at 177 (citation and internal quotation marks omitted), and to the
contrary, “this suit centers on claims unique to” Plaintiff, id. at 176 (emphasis in original), arising
from “a decision that involved the exercise of discretion by the Warden” and the USP Tucson staff
and officials, id. at 177 (citation and internal quotation marks omitted). Plaintiff is not challenging
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BOP’s statutory authority to promulgate a regulation or to enforce its policies, he is instead
disputing his own disciplinary conviction and the alleged unlawful actions taken by USP Tucson
staff in furtherance of same.
Put simply, “there is nothing in the record indicating that the parties or the facts at issue
are connected to this district.” Colley, 254 F. Supp. 3d at 74 (transferring APA matter pursuant to
Section 1404(a) (citing Miller, 608 F. Supp. 2d at 102)). Based on the foregoing analysis, the
Court finds that it is not only more convenient for this case to proceed in the District of Arizona,
but it would also be in the interest of justice to transfer this matter to that jurisdiction. See Ortiz-
Contreras v. Holder, 126 F. Supp. 3d 127, 131 (D.D.C. 2015) (transferring APA case pursuant to
Section 1406(a) to plaintiff’s district of incarceration, where plaintiff challenged his designation
and the outcome of prison disciplinary proceedings, because the claims arose at his prison and the
only connections to this District were (1) the inclusion of high-raking federal officials as
defendants, (2) claims generally challenging BOP regulations, and (3) the plaintiff’s appeal to the
Central Office/NIAA); Ballard v. Holinka, 601 F. Supp. 2d 110, 121–23 (D.D.C. 2009)
(transferring APA matter pursuant to Section 1406(a), filed by prisoner-plaintiff, to his district of
incarceration because the events arose there, and his pursuit of grievances through the BOP’s
“Administrative Remedy Program . . . to their final stage, an appeal to the National Inmate Appeals
Administrator,” was not enough to establish venue in the District of Columbia).
IV. CONCLUSION
For the reasons set forth above, BOP’s Motion to Transfer is GRANTED and this matter
shall be transferred pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the
District of Arizona. Per its request and for good cause shown, the Court also extends BOP’s time
to respond to Plaintiff's Complaint until 60 days after this case is docketed in the District of
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Arizona, based on BOP’s proffer that it will be represented by different counsel upon transfer and
that counsel will need time to become familiar with the case. An Order consistent with this
Memorandum Opinion will be issued contemporaneously.
Date: February 25, 2022 ______s/s____________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
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