Summary
transferring habeas challenge to conditions of confinement because petitioner's custodian was warden of Indiana prison, "a person not subject to the personal jurisdiction" of the court
Summary of this case from Stewart v. SchultOpinion
00 Civ. 6338 (SAS)
September 11, 2000
Ismael Gonzalez, Esq., New York, New York, For Petitioner.
Krishna R. Patel, Assistant United States Attorney, New York, New York, For Government.
MEMORANDUM OPINION ORDER
Petitioner has brought an action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking equitable relief. In particular, petitioner seeks to be transferred from the United States Penitentiary in Terre Haute, Indiana ("Terre Haute Penitentiary"), where he is currently incarcerated, to either a psychiatric hospital in the New York City area or the Federal Correctional Institution at Fort Dix, New Jersey. For the following reasons, all of the defendants except Harley G. Lappin are dismissed from this action. The remainder of this suit will be transferred to the Southern District of Indiana.
Although it is unclear from the petition, for present purposes it will be assumed that petitioner is suing all defendants on both causes of action.
FACTS
On February 5, 1992, petitioner was convicted in the United States District Court for the Southern District of New York for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846; distribution of cocaine in violation of 21 U.S.C. § 841; and possession of a firearm used during a drug trafficking crime in violation of 18 U.S.C. § 924(c). See Presentence Report, Ex. B to Affirmation of Ismael Gonzalez, petitioner's attorney, in Support of Petition for Equitable Relief and/or Writ of Habeas Corpus, dated August 18, 2000 ("Gonzalez Aff."), at ¶ 19. On June 18, 1992, he was sentenced to 211 months in custody. See Judgment in a Criminal Case, Ex. A to Gonzalez Aff., at 2.
While the fact that petitioner was sentenced in the Southern District of New York would have supported jurisdiction if petitioner was filing under 28 U.S.C. § 2255, it is irrelevant to the jurisdictional inquiry under 28 U.S.C. § 2241.
Petitioner's projected release date is May 27, 2007. See Declaration of Michael D. Tafelski, Deputy Regional Counsel for the Northeast Region of the Federal Bureau of Prisons, dated August 29, 2000, ¶ 3.
DISCUSSION I. Petitioner's Writ of Habeas Corpus
It is well settled that "[i]n order for a court to entertain a habeas corpus action, it must have jurisdiction over the petitioner's custodian." Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976). Thus, a "§ 2241 petition challenging execution of sentence, i.e., the conditions of the inmate's confinement, . . ., normally should be brought in the district court for the district where the prisoner is in custody." Borja-Palacio v. United States, 99 Civ. 734, 1999 WL 816165, at *5 (S.D.N.Y. Oct. 13, 1999) (citing numerous cases including Billiteri). Because petitioner is claiming that the medical care he has been receiving while a federal prisoner has been deficient, his claim clearly relates to the execution of his sentence and not its original imposition. See Cantatore v. United States, 90 Civ. 3649, 1991 WL 81932, at *2 (E.D.N.Y. May 7, 1991). A petition filed under 28 U.S.C. § 2241 is the proper mechanism in which to challenge the conditions of confinement. See United States v. Huss, 520 F.2d 598, 604 (2d Cir. 1975) ("matters of internal prison administration reviewable under the provisions of the general habeas corpus statute" are not reviewable under § 2255).
Challenges to the imposition of sentence are governed by 28 U.S.C. § 2255.
The problem, however, is that petitioner's custodian is defendant Harley G. Lappin, Warden of the Terre Haute Penitentiary, a person not subject to the personal jurisdiction of this Court. "Personal jurisdiction of a federal court over a non-resident defendant is governed by the law of the state in which the court sits — subject, of course, to certain constitutional limitations of due process." Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citations omitted). Petitioner does not allege any contacts between Lappin and the State of New York, much less sufficient contacts that would confer personal jurisdiction over his person. See N.Y. C.P.L.R. § 302(a) (McKinney 1990) (under New York law, personal jurisdiction lies over any nonresident who transacts any business within the state, commits a tortious act inside the state, or commits a tortious act outside the state if certain requirements not relevant here are met).
Petitioner's reliance on Arias-Agramonte v. Commissioner of INS, 00 Civ. 2412, 2000 WL 1059678 (S.D.N.Y. Aug. 1, 2000) for the proposition that venue and, hence, jurisdiction is proper in New York is misplaced. In Arias-Agramonte an INS detainee brought a § 2241 habeas petition against the Commissioner of the INS even though the petitioner was being held in an INS facility in Louisiana. The court found it had jurisdiction but distinguished INS cases from general prisoner cases stating: "The Government is correct that, as a general rule, the official with day-to-day control over the petitioner is the custodian for habeas purposes. Yet the great majority of habeas cases . . . involve prisoners held in penal institutions, not in INS detention facilities." Id. at *7 (internal quotation marks and citations omitted). The case at bar, however, is a prisoner case and I am unwilling to extend the holding of Arias-Agramonte beyond the limits found in Billiteri, 541 F.2d at 948 ("[I]t would stretch the meaning of the term [custodian] beyond the limits thus far established by the Supreme Court to characterize the Parole Board as the 'custodian' of a prisoner who is under the control of a warden and confined in a prison, and who is seeking, in a habeas corpus action, to be released from precisely that form of confinement."). Moreover, petitioner appears to confuse the concepts of venue and jurisdiction. See United States ex rel. Rudick v. Laird, 412 F.2d 16, 20 (2d Cir. 1969) (traditional principles of venue apply only after jurisdiction is established).
The remaining defendants must be dismissed from petitioner's habeas claim outright. Janet Reno, Attorney General of the United States and Kathleen Hawk Sawyer, the Director of Correctional Programs for the Bureau of Prisons, are not proper respondents to petitioner's habeas petition. See Henderson v. INS, 157 F.3d 106, 126 (2d Cir. 1998) ("The Attorney General is designated, pursuant to statute, as the custodian of all federal prisoners, see 18 U.S.C. § 4001 (1994), yet no one seriously suggests that she is a proper respondent in prisoner habeas cases."); cf. English v. Miller, 341 F. Supp. 714, 715 (E.D.Va. 1972), rev'd on other grounds, 481 F.2d 188 (4th Cir. 1973) (state attorney general and state director of corrections were unnecessary parties to habeas petition; appropriate respondent was superintendent of penitentiary who had custody of petitioner). Defendants United States Bureau of Prisons and the Terre Haute Penitentiary must also be dismissed as the proper respondent is the warden or superintendent of the institution in which the petitioner is confined, not the United States, its agencies or the institution itself. Cf. Scott v. United States, 586 F. Supp. 66, 68 n. 1 (E.D.Va. 1984) (citing Copeland v. State of Mississippi, 415 F. Supp. 1271, 1272 n. 1 (N.D.Miss. 1976) (State of Mississippi was not proper respondent in state prisoner's habeas corpus proceeding)).
Sued incorrectly as "Katherine" Hawk Sawyer.
Because this Court lacks jurisdiction over petitioner's custodian, Harley G. Lappin, it cannot entertain his § 2241 petition. However, this Court has broad discretion under 28 U.S.C. § 1406(a) to transfer cases to another judicial district. See Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993) ("Whether dismissal or transfer [under 28 U.S.C. § 1406(a)] is appropriate lies within the sound discretion of the district court.") (citation omitted). To avoid unnecessary delay in reaching the merits of petitioner's medical treatment claim, petitioner's habeas petition will be transferred to the Southern District of Indiana. See Peon v. Thornburgh, 765 F. Supp. 155, 156 (S.D.N.Y. 1991) (transferring § 2241 petition under 28 U.S.C. § 1406(a) "in the interest of justice [and] to avoid unnecessary delay of consideration of the petition's merits").
28 U.S.C. § 1406(a) provides: "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."
While the Government argues that the instant petition should be dismissed for failure to exhaust administrative remedies, I decline to reach the merits of that issue. The Government is free, of course, to renew that application in the Southern District of Indiana.
II. Petitioner's Bivens Action
Bivens provides a remedy for intentional deprivations of constitutional rights by authorizing lawsuits against responsible federal officials in their individual capacities. See Robinson, 21 F.3d at 510. However, to establish a Bivens claim, a plaintiff must allege facts showing that the individual defendants participated in the alleged constitutional violation.
Conclusory allegations, standing alone, are not sufficient. See Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) (plaintiff failed to plead a cognizable claim by not alleging any personal involvement by the defendant supervisor). Thus, to be liable under Bivens, a defendant must: be personally involved in the violation of plaintiff's rights; have created or acquiesced in a policy or practice of poor training or supervision; or have otherwise acted recklessly in managing his or her subordinates. See id. Supervisors are not liable under Bivens based solely on the alleged misconduct of their subordinates. See Ellis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981) (respondeat superior generally does not apply in Bivens-type actions) (citations omitted).
The fact that defendant Kathleen Hawk Sawyer ultimately supervises those persons who allegedly violated petitioner's constitutional rights is not enough to substantiate a Bivens claim against her. See Leonhard v. United States, 633 F.2d 599, 621 n. 30 (2d Cir. 1980) (affirming dismissal of action against federal defendants because there was no allegation that they participated personally in the alleged constitutional deprivation). This argument is even stronger when applied to defendant Janet Reno, who supervises the Department of Justice.
These defendants are therefore dismissed from this action for lack of personal involvement.
A different reason compels the dismissal of defendants United States Bureau of Prisons and the Terre Haute Penitentiary.
Petitioner has failed to state a claim against these defendants because only government officials may be sued in a Bivens action, not the governmental agencies for which they work. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994); Platsky v. CIA, 953 F.2d 26, 28 (2d Cir. 1991) ("even in Bivens actions jurisdictional limitations permit a plaintiff to sue only the federal government officials responsible for violating the plaintiff's constitutional rights; a plaintiff cannot sue the agency for which the officials work") (citations omitted). Accordingly, these entities are not subject to suit under Bivens and must be dismissed. That leaves defendant Lappin who, as stated earlier, is not subject to the personal jurisdiction of this Court.
Because a Bivens claim should be asserted apart from a habeas claim by the filing of a separate complaint, see Borja-Palacio, 1999 WL 816165, at *5 n. 4 (citations omitted), petitioner's Bivens claim against defendant Lappin is dismissed without prejudice subject to re-filing in the Southern District of Indiana.
For the reasons stated above, the Clerk of the Court is directed to transfer the habeas petition to the Southern District of Indiana and close this case.
SO ORDERED.