Case: 20-30132 Document: 00516089454 Page: 1 Date Filed: 11/10/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 10, 2021
No. 20-30132
Lyle W. Cayce
Clerk
Arthur Flemming Moler,
Plaintiff—Appellant,
versus
Officer Wells; Ian Connors, Counsel; United States of
America,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:19-cv-982
Before Dennis, Higginson, and Costa, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Arthur Fleming Moler appeals the district court’s dismissal of his
Federal Tort Claims Act (FTCA) suit. Because the Western District of
Louisiana may be an improper venue for Moler’s FTCA claim, and because
venue may be a jurisdictional issue in FTCA cases, we VACATE the district
court’s order dismissing Moler’s FTCA claim and REMAND the case for
determination of whether venue is proper. Additionally, we AFFIRM the
district court’s implicit denial of Moler’s implicit motion to amend his
complaint to include a Bivens claim.
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I.
While in the custody of the Bureau of Prisons (BOP), Moler filed a pro
se lawsuit in the Western District of Louisiana against a federal correctional
officer named Wells and a BOP lawyer named Ian Connors. Moler alleged
that he was denied proper medical treatment after his shoulder was injured
while Officer Wells was escorting him to the shower, and he sought relief
under the FTCA. The magistrate judge granted Moler’s request to proceed
in forma pauperis and ordered Moler to file an amended complaint that, in
compliance with the pleading requirements of Federal Rule of Civil
Procedure 8, (1) named the United States as the defendant for his FTCA
claim; (2) provided evidence that he had exhausted his administrative
remedies; and (3) included sufficient details about what medical treatment
he believed he was denied, the dates he requested medical care, the identity
of the persons from whom he requested medical care, and the responses to
those requests. Moler then filed an amended complaint, along with
supporting exhibits. The amended complaint named the United States as the
first defendant and removed any reference to Connors.
The magistrate judge determined that Moler’s amended complaint
failed to provide sufficient details regarding Moler’s medical treatment
claim. Accordingly, the magistrate judge recommended dismissing Moler’s
complaint for failure to state a claim on which relief may be granted, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii). Moler filed written objections to the
magistrate judge’s report and recommendation. After conducting an
independent review of the record and considering Moler’s objections, the
district court accepted the magistrate judge’s findings as correct and
dismissed Moler’s complaint with prejudice. Moler filed a timely notice of
appeal.
2
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II.
We first address the issue of venue. Claims 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).
Moler’s complaint and the exhibits attached to it1 allege that Moler was
inappropriately denied medical care after injuring his arm while incarcerated
at the Federal Correctional Institute in Oakdale, Louisiana (FCI-O).
However, because Moler thought his injury “was just something pulled and
not something more serious,” he “did not see Medical” while at FCI-O.2
And though Moler later mentioned his arm pain to the intake nurse at the
Oklahoma City Transit Center, he did not “particularly expect anything to
be done at that time.” Rather, it was not until Moler was transferred to the
Federal Correctional Institute in Forrest City, Arkansas (FCI-FC) that he
allegedly sought but did not receive adequate medical care.3 Thus, the
omissions that Moler complains of took place exclusively in Forrest City,
which is in the Eastern District of Arkansas.4 For this reason, venue is not
1
“A copy of a written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.” FED. R. CIV. P. 10(c).
2
After his injury, Moler “did notify Medical Department at [FCI-O] without
response,” but he makes it clear that at the time, “[w]hile I felt pain in my left arm, I
thought it was minor.”
3
Specifically, Moler alleges: (1) that after arriving at FCI-FC in late September
2018, he notified staff that he had pain in his arm; (2) that he received an X-ray on October
30, 2018; (3) that on November 23, 2018 and December 1, 2018, he sent electronic staff
requests to Health Services at FCI-FC regarding his continued arm pain, which were
ignored; (4) that he was told to get ibuprofen and naproxen from the commissary on
December 18, 2018; (5) that he received an MRI on May 30, 2019, which found that he
“could [have] a long segment partial tear of the [supraspinatus] tendon”; and (6) that as of
July 20, 2019, he had not received surgery and was still in pain.
4
Indeed, Moler states in his complaint that the care he received “does not meet
the minimal standard of care in Arkansas,” showing that he views Arkansas as the place
where the omissions he complains of occurred.
3
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proper in the Western District of Louisiana under the second prong of the
FTCA venue statute. See 28 U.S.C. § 1402(b).5
Venue is also proper “in the judicial district where the plaintiff
resides.” 28 U.S.C. § 1402(b). In his complaint, Moler states that he resides
in Forrest City, Arkansas, at FCI-FC. However, for purposes of venue,
“[o]ne does not change his residence to the prison by virtue of being
incarcerated there.” Ellingburg v. Connett,
457 F.2d 240, 241 (5th Cir. 1972)
(quoting Cohen v. United States,
297 F.2d 760, 774 (9th Cir. 1962)). Rather,
an incarcerated person resides in the district where he was legally domiciled
before his incarceration. Id.6 The record does not reflect where Moler lived
5
Courts have interpreted the second prong of § 1402(b) to mean that a complained
of act or omission can give rise to proper venue in only one judicial district. See Reuber v.
United States, 750 F.2d 1039, 1048-49 (D.C. Cir. 1984) (“Congress has specified the
district in which the act occurred as the ‘only’ district, other than that where the plaintiff
resides, where a claim may be brought and thereby created a strong negative presumption
against courts finding discretionary pendent venue elsewhere.” (citation omitted)),
abrogated on other grounds by Kauffman v. Anglo-American School of Sofia,
28 F.3d 1223 (D.C.
Cir. 1994); Andrade v. Chojnacki,
934 F. Supp. 817, 829 n.24 (S.D. Tex. 1996) (concluding
that “the operative language in Section 1402(b), ‘wherein the act or omission complained
of occurred,’ suggests that . . . venue in FTCA actions (at least when based solely on this
ground) is proper in only one district” and that when the acts or omissions complained of
occurred in multiple districts, a “preponderance of the contacts test” should determine
where venue is proper); Lopez v. U.S. Gov’t,
68 F. Supp. 2d 688, 691 (M.D.N.C. 1999)
(adopting Andrade’s interpretation of § 1402(b)). Because the omissions Moler complains
of occurred exclusively in Forrest City, Arkansas, we do not need to address whether venue
could be proper in more than one district under the second prong of § 1402(b).
6
See also Urb. Indus., Inc. of Kentucky v. Thevis, 670 F.2d 981, 983, 986 (11th Cir.
1982) (holding that a person who had lived in Georgia before his incarceration in Indiana
“retained his Georgia residence” while incarcerated); Brimer v. Levi,
555 F.2d 656, 658
(8th Cir. 1977) (explaining that a prisoner does not reside at his place of incarceration
because his presence in that district is “involuntary and temporary”). But see In re Pope,
580 F.2d 620, 622 (D.C. Cir. 1978) (acknowledging that “[t]here is considerable support
for the notion that one does not change his residence to the prison by virtue of being
incarcerated there” but holding that, under circuit precedent, “a prisoner has his residence
at his place of confinement”).
4
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prior to his incarceration. If Moler resided in the Western District of
Louisiana before his incarceration, venue would be proper in that district.7
“Because we may not proceed without requisite jurisdiction, it is
incumbent upon federal courts trial and appellate to constantly examine the
basis of jurisdiction, doing so on our own motion if necessary.” Save the Bay,
Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th Cir. 1981). Venue may be a
jurisdictional issue in FTCA cases. “The United States, as sovereign, is
immune from suit save as it consents to be sued, and the terms of its consent
to be sued in any court define that court’s jurisdiction to entertain the suit.”
United States v. Sherwood,
312 U.S. 584, 586 (1941) (citations omitted). Based
on this language, the D.C. Circuit has suggested that “it is unclear whether a
district court even has jurisdiction to hear an FTCA claim anywhere but in
the district specified by
28 U.S.C. § 1402(b).” Reuber v. United States,
750 F.2d 1039, 1049 n.11 (D.C. Cir. 1984), abrogated on other grounds by
Kauffman v. Anglo-American School of Sofia,
28 F.3d 1223 (D.C. Cir. 1994).
On the other hand, the Eighth Circuit has held that § 1402(b) is not “a
jurisdictional statute.” Upchurch v. Piper Aircraft Corp.,
736 F.2d 439, 440
(8th Cir. 1984).
Because venue may be a jurisdictional issue in this FTCA case, and
because the record does not contain enough information to determine
7
The record suggests that Moler, who was released from prison during the
pendency of this appeal, now resides in Sterrett, Alabama. However, “venue [is]
determined at the outset of litigation and [is] not affected by subsequent events.” Smilde v.
Snow, 73 F. App’x 24, 26 (5th Cir. 2003) (unpublished); see also Exxon Corp. v. FTC,
588
F.2d 895, 899 (3d Cir. 1978) (holding that “venue is determined at the outset of the
litigation”); Harris v. Black Clawson Co.,
961 F.2d 547, 549 (5th Cir. 1992) (explaining that,
when determining whether diversity jurisdiction exists, the court looks to “the citizenship
of the parties at the time suit was filed”). Accordingly, venue would be proper in the district
where Moler was legally domiciled at the time that he filed his complaint, not necessarily
in the district where Moler is currently domiciled.
5
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whether venue is proper in the Western District of Louisiana, we do not
address the merits of Moler’s appeal. Instead, we VACATE the district
court’s order dismissing Moler’s FTCA claim and REMAND the case to
the district court for a determination of whether venue is proper and for
further proceedings not inconsistent with this opinion. See Molett v. Penrod
Drilling Co., 872 F.2d 1221, 1228 (5th Cir. 1989) (“Where, as here,
jurisdiction is not clear from the record, but there is some reason to believe
that jurisdiction exists, the Court may remand the case to the district court
for amendment of the allegations and for the record to be supplemented.”);
Ellingburg,
457 F.2d at 242 (“This record is silent as to Ellingburg’s
domicile/residence. Accordingly, we remand the case to the district court for
it to determine Ellingburg’s ‘residence.’”).8
III.
Moler also argues that the district court erred by not construing his
complaint as alleging a Bivens claim against Officer Wells, in addition to an
FTCA claim. A Bivens claim is a lawsuit in which a person who alleges that a
8
If venue is proper, the district court should re-evaluate Moler’s FTCA claim
under Arkansas law. See 28 U.S.C. § 1346(b)(1) (providing that courts must analyze FTCA
claims “in accordance with the law of the place where the act or omission occurred”). If
venue is improper, the district court “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.”
28
U.S.C. § 1406(a); see also
28 U.S.C. § 1631 (providing that if a court lacks jurisdiction over
a case, it “shall, if it is in the interest of justice, transfer such action or appeal to any other
such court . . . in which the action or appeal could have been brought at the time it was filed
or noticed”). We note that because Moler’s FTCA claim appears non-frivolous, see supra
note 4, and because the statute of limitations would prevent him from refiling the claim in
another court if this case were dismissed, see
28 U.S.C. § 2401(b), it likely would be in the
interest of justice to transfer this case if the district court concludes that venue is not
proper. We further note that while the United States has not been served and thus has not
had an opportunity to move for lack of subject-matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1) or improper venue under Rule 12(b)(3), “a district court may
transfer a case upon a motion or sua sponte.” Caldwell v. Palmetto State Sav. Bank of S.C.,
811 F.2d 916, 919 (5th Cir. 1987).
6
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federal actor has violated his constitutional rights seeks to recover damages
in federal court. See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971); McGuire v. Turnbo,
137 F.3d 321, 323 (5th Cir.
1998). Because venue is not a jurisdictional issue in Bivens claims,9 we assume
that the Western District of Louisiana would be a proper venue for this claim
and instead address the merits of the issue.
Moler titled his complaint “FTCA - Federal Tort Claim,” and
nothing in the complaint indicates that he intended also to raise a Bivens
claim. However, he did argue in his objections to the magistrate judge’s
report and recommendation that his complaint states a Bivens claim directly
against Officer Wells. “The district court may construe an issue raised for
the first time in an objection to a magistrate judge’s report and
recommendation as a motion to amend complaint.” United States v. Riascos,
76 F.3d 93, 94 (5th Cir. 1996). The district court noted that Moler objected
to the magistrate judge’s report, but it did not state whether it construed his
objections as a motion to amend his complaint. Construing Moler’s
objections as a motion to amend his complaint,10 we review the district
court’s implicit denial of that motion “for abuse of discretion.” Riascos,
76
F.3d at 94. The permissible bases for denying a motion to amend include
“undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Wright v. Allstate Ins. Co., 415
9
Venue is not a potential jurisdictional issue for Bivens claims because, unlike
FTCA suits, Bivens claims do not rely on a waiver of sovereign immunity.
10
We generally “construe pro se filings liberally.” EEOC v. Simbaki, Ltd., 767 F.3d
475, 484 (5th Cir. 2014).
7
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F.3d 384, 391 (5th Cir. 2005) (alteration in original) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)).
Here, granting Moler’s implicit motion to amend his complaint would
have been futile. Moler stated in his objections that Officer Wells showed
“deliberate indifference to Moler’s medical needs.” Indeed, “deliberate
indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.
Georgia,
428 U.S. 153, 173 (1976)). However, “[d]eliberate indifference ‘is an
extremely high standard to meet.’” Gobert v. Caldwell,
463 F.3d 339, 346 (5th
Cir. 2006) (quoting Domino v. Tex. Dep’t of Crim. Just.,
239 F.3d 752, 756
(5th Cir. 2001)). A prison official shows deliberate indifference only if “the
official knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan,
511 U.S. 825, 837 (1994). Moler has not
alleged that Officer Wells was aware of facts from which he could infer that a
substantial risk of harm to Moler existed, let alone that Wells drew such an
inference. Rather, his complaint states that while Wells was “of course
aware” of his injury, “we thought it was just something pulled and not
something more serious.” Moler’s complaint also states that at the time his
injury occurred, “I felt pain in my left arm,” but “I thought it was minor.”
Thus, under the facts pled in Moler’s complaint, Wells did not have the
requisite knowledge to establish deliberate indifference. Because Moler could
not have stated a Bivens claim against Wells, we AFFIRM the district
court’s implicit denial of Moler’s implicit motion to amend his complaint.
See EEOC v. Simbaki, Ltd.,
767 F.3d 475, 484 (5th Cir. 2014) (explaining that
even “[p]ro se litigants must properly plead sufficient facts that, when
liberally construed, state a plausible claim to relief”).
8
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IV.
In conclusion, we VACATE the district court’s order dismissing
Moler’s FTCA claim, we AFFIRM the district court’s implicit denial of
Moler’s implicit motion to amend his complaint to include a Bivens claim,
and we REMAND the case to the district court for further proceedings not
inconsistent with this opinion.
9
