United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION AND ORDER
R. Wilhoit. Jr. United States District Judge
Franklin Woody is an inmate confined at the Federal
Correctional Institution in Ashland, Kentucky. Proceeding
without counsel, Woody has filed a complaint asserting a
claim against the United States pursuant to the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b), 2671-80
("FTCA") and claims against federal officers
pursuant to the doctrine announced in Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
[D. E. No. 1] Woody has also filed a motion to proceed in
forma pauperis. [D. E. No. 3]
Court must conduct an initial screening of lawsuits filed by
prisoners against government officials. 28 U.S.C. §
1915A. Because Woody filed this case prematurely, in the
wrong court, and is ineligible to proceed as a pauper, the
Court will exercise its discretion to dismiss this case. It
will do so without prejudice to Woody's right to file a
new case at the right time and in the proper venue.
complaint, Woody states that on July 22, 2017, he hurt his
hand while exercising in the yard of the Federal Transfer
Center in Atlanta, Georgia. When the pain didn't subside
for several days, Woody sought medical attention. An x-ray
performed on July 26, 2017 showed that he had fractured his
left thumb. While prison officials expressed their intent to
send him to an outside specialist, that did not occur. After
nothing happened for a week, Woody obtained an ACE bandage
and a metal brace to stabilize his hand while awaiting
August 16, 2017, Woody was transferred by bus to FCI-Ashland.
He was given a medical screening upon arrival, at which time
a nurse stated that he needed prompt surgery for his broken
thumb. Six days later, Woody was taken to an outside hospital
where surgery was performed to insert a pin into his thumb to
stabilize the bone. [D. E. No. 1 at 3-6]
complaint, Woody contends that the failure by Atlanta prison
officials to ensure prompt medical care for his injury, and
the decision to transport him by bus without protection for
his hand, constituted negligence and deliberate indifference
to his serious medical needs in violation of the Eighth
Amendment. All of the conduct about which he complains
occurred in Atlanta, Georgia, and all of the named individual
defendants are officers at the prison there. Woody asserts
that Georgia law controls on the question of negligence. [D.
E. No. 1 at 7-10] On September 25, 2017, Woody sent a letter
requesting administrative settlement of his claims to the
Bureau of Prisons; he indicates that he has had no response
as of October 31, 2017. [D. E. No. 1-17, 1-18]
preliminary matter, the Court must deny Woody's motion to
proceed in forma pauperis because 28 U.S.C. § 1915(g)
bars him from proceeding as a pauper. Woody has filed three
or more cases as a prisoner that were dismissed as frivolous
or for failure to state a claim. Woody v. Francis,
No. 1: 07-CV-93-IMK (N.D. W.Va. 2007); Woody v. Compr.
Nursing, Inc., No. 2: 09-CV-2-RWS (N.D.Ga. 2009);
Woody v. Couch, No. 2: 09-CV-10-WCO (N.D.Ga. 2009);
Woody v. Cronic, No. 2: 09-CV-173-RWS (N.D.Ga.
2009). See Woody v. Geo Group, Inc., No. 1:
10-CV-64-RWS (N.D.Ga. 2010) (noting that Woody was subject to
the "three strikes" bar of § 1915(g)).
Woody's claims relate solely to past - not present or
future - medical care, and his allegations do not remotely
suggest that he is in imminent danger of serious physical
harm. To the contrary, he indicates that he received prompt
and appropriate medical care upon his arrival at FCI-Ashland.
He therefore falls outside the narrow scope of the exigent
circumstances exception to § 1915(g)'s "three
the Court would afford Woody the opportunity to pre-pay the
entire filing fee up front, as § 1915(g) only prevents
him from paying it in installments. But other defects warrant
dismissal of his complaint. This Court lacks personal
jurisdiction over the officers living in Georgia for claims
based solely upon their conduct in that state. Cf.
Cardona v. Bledsoe, 596 Fed.Appx. 64, 66 (3d Cir.
2015); Gowadia v. Stearns, 596 Fed.Appx. 667, 669
(10th Cir. 2014). And Georgia, not Kentucky, is the only
proper venue for Woody's claims under Bivens and
the FTCA. 28 U.S.C. §§ 1391(b), 1402(b).
not formally relevant at this stage, there is no indication
that Woody made any effort to exhaust his Bivens
claims by filing inmate grievances with the BOP before he
filed suit. And it is plain that Woody filed suit before the
BOP considered his request for administrative settlement, and
hence his FTCA claim is clearly premature and must be
dismissed. 28 U.S.C. § 2675(a).
Woody became liable for payment of the entire filing fee the
moment he filed this case. McGore v. Wrigglesworth,
114 F.3d 601, 605 (6th Cir. 1997). This is still true even
where § 1915(g) prevents him from proceeding in forma
pauperis. In re Alea, 286 F.3d 378, 382 (6th Cir.
2002). That said, the Court will exercise its discretion to
not order collection of the $400.00 filing fee. Woody's
allegations are troubling, but he must present them to the
right court after he has exhausted his administrative
remedies under the FTCA, Bivens, or both.
is cautioned that the indulgence the Court has afforded him
by not ordering the filing fee collected from his account
will be reconsidered if he persists in pursuing his claims in
this case, whether by filing a motion to reconsider the
dismissal of his complaint or by filing an appeal in this
case. The present complaint is plainly not proper for the
reasons stated. The Court's dismissal of it -without
prejudice - is designed to permit Woody to correct these
defects and then file a new complaint asserting his claims in
the proper place and time.
IT IS ORDERED that:
Woody's complaint [D. E. No. 1] is DISMISSED WITHOUT