Agofsky v. Bureau of Prisons

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SHANNON AGOFSKY, Plaintiff, v. BUREAU OF PRISONS, et al., Defendant.

Civil Action No. 23-1511 (TSC)

United States District Court, District of Columbia

February 2, 2024

MEMORANDUM OPINION

TANYA S. CHUTKAN, UNITED STATES DISTRICT JUDGE

Plaintiff Shannon Agofsky sues the Bureau of Prisons (“BOP”), its Director and the Regional Director for its North Central Regional Office, and his Acting Complex Warden for violations of the Administration Procedure Act (“APA”) and his First Amendment rights. Plaintiff is incarcerated at the Federal Correctional Complex at Terre Haute (“FCC Terre Haute”) in Terre Haute Indiana. He filed a Complaint on May 25, 2023, ECF No. 1, and a Motion for Preliminary Injunction on June 8, 2023, ECF No 5. Before the court are Plaintiff's Motion for Preliminary Injunction and Memorandum in Support, ECF No. 6 (“Pl.'s Mot.”), and Defendants' Motion to Transfer, ECF No. 16 (“Defs.' Mot.”), which is opposed. See Mem. in Opp'n to Mot. to Transfer, ECF No. 18 (“Pl.'s Opp'n”). For the reasons set forth below, the court will GRANT Defendants' Motion to Transfer. Accordingly, the court will not reach Plaintiff's Motion for a Preliminary Injunction in deference to the decision of the transferee court.

I. BACKGROUND

Plaintiff claims that Defendants refused to process his request to place his wife on his visiting list “solely on the basis” that he and his spouse-whom he met and married during his incarceration-had no relationship prior to his incarceration. Compl. ¶ 11; Pl.'s Mot. at 1, 6-7.

As relevant to the Motion to Transfer, Plaintiff argues that BOP's refusal violated the APA by applying a prior relationship requirement, previously applicable only to an inmate's friends and associates, to immediate family members arbitrarily and without notice and comment. Pl.'s Mot. at 1, 5-7; compare 28 C.F.R. § 540.44(a) (directing BOP staff “to compile a visiting list for each inmate after suitable investigation” which may include “members of the immediate family,” including an inmate's spouse, who are to be placed on the list “absent strong circumstances which preclude visiting”), with 28 C.F.R. § 540.44(c) (directing that the “visiting privilege ordinarily will be extended to friends and associates having an established relationship with the inmate prior to confinement”). According to Plaintiff, “BOP's new policy categorically bars visits by inmates' spouses who did not know them before they were incarcerated, and also bars visits by inmates' children and siblings born after those inmates' incarceration.” Pl.'s Mot. at 1.

Defendants contest that the final decision imposed a prior relationship requirement on visitation requests by immediate family members, and deny that BOP modified the substantive regulation. Defs.' Mot. at 1-2. They argue that the decision instead “merely upheld the discretion of prison officials to inquire about the existence of a prior relationship as a factor in evaluating Agofsky's request based on safety considerations applicable to him.” Id. at 2. Defendants claim that inquiry was consistent with the underlying regulation. Id. at 3. Plaintiff argues that the plain text of the regulation, and BOP's statement during a 2003 rulemaking that “[t]he prior relationship requirement does not apply to immediate family members,” bars expansion of the requirement making a prior relationship a prerequisite for visitation by an immediate family member. Pl.'s Opp'n at 3, 5-6; Visiting Regulations: Prior Relationship Requirement, 68 Fed.Reg. 10656, 10658 (Mar. 6, 2003). Plaintiff also argues that whether BOP's request regarding his prior relationship with his spouse is “framed as a denial or a request for more information,” it improperly applied a prior relationship requirement that BOP knew he could not satisfy, thereby effectively denying his request. Pl.'s Opp'n at 9.

II. LEGAL STANDARD

A case may be transferred to another venue “[f]or the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). The moving party “bears the burden of establishing that transfer of the action is proper.” Smith v. Yeager, 234 F.Supp.3d 50, 55 (D.D.C. 2017) (quoting Greater Yellowstone Coal. v. Bosworth, 180 F.Supp.2d 124, 127 (D.D.C. 2001)). Defendants must make two showings to justify transfer: (1) that the action “might have been brought” in their choice of forum, and (2) that the private and public “interest factors” weigh in favor of transfer. Ctr. for Env't Sci., Accuracy & Reliability v. Nat'l Park Serv., 75 F.Supp.3d 353, 356 (D.D.C. 2014); Stern v. Fed. Bureau of Prisons, 515 F.Supp.2d 153, 155 (D.D.C. 2007). District courts “retain broad discretion in balancing the asserted convenience and fairness to the parties.” Onyeneho v. Allstate Ins. Co., 466 F.Supp.2d 1, 3 (D.D.C. 2006) (citing Sheraton Operating Corp. v. Just Corp. Travel, 984 F.Supp. 22, 25 (D.D.C. 1997)).

III. ANALYSIS

A. Where the Action Might Have Been Brought

An action “might have been brought” against a federal defendant where (1) “a defendant in the action resides;” (2) “a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is subject of the action is situated;” or (3) a “plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 1391(e)(1); Nat'l Park Serv., 75 F.Supp. at 356. Because the court finds that Plaintiff resides in the Southern District of Indiana, and no real property is involved in this action, venue is proper in that district and the court need not reach the alternative bases. Plaintiff is currently housed in the Special Confinement Unit at FCC Terre Haute, a special housing unit for inmates under a death sentence. Pl.'s Mot. at 6; Defs.' Mot. at 4. 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); Jordan v. U.S. Bureau of Prisons, No. 21-cv-614-CKK, 2022 WL 579442, at *6 (D.D.C. Feb. 25, 2022). Plaintiff therefore resides in Terre Haute, which is located in the Southern District of Indiana. Venue exists in the proposed transferee district.

Plaintiff does not concede that venue would be proper in the Southern District of Indiana. Pl.'s Opp'n at 14 (“Even assuming that venue would be proper in the Southern District of Indiana, these considerations weigh in favor of keeping the case in this District . . .”). He contends he had “good reason to believe he could not have brought this case in the Southern District of Indiana,” pointing to a “virtually indistinguishable” case brought and later voluntarily dismissed by another death row inmate at FCC Terre Haute. Id. at 15; see also Compl. ¶ 25; Compl., Troya v. Hurwitz, No. 2:18-cv-311 (S.D. Ind. July 10, 2018), ECF No. 1. In that case, a similar set of defendants named in their official capacities denied that venue was properly asserted in the Southern District of Indiana. Pl.'s Opp'n at 15 (citing Am. Answer of Official Capacity Defs. at 4 ¶ 2, Troya v. Hurwitz, No. 2:18-cv-311 (S.D. Ind. May 20, 2019), ECF No. 44).

Defendants are correct that Troya is distinguishable. Unlike the Complaint here, Troya's complaint asserted individual capacity claims for monetary damages under Bivens. Mem. in Reply ISO Mot. to Transfer at 4, ECF No. 19 (“Defs.' Reply”). Troya asserted venue in the Southern District of Indiana, relying on 28 U.S.C. § 1391(b)(2). Compl. ¶ 2, Troya v. Hurwitz, No. 2:18-cv-311 (S.D. Ind. July 10, 2018), ECF No. 1. That provision governs suits against individuals for money damages. In contrast, actions “in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority” are governed by 28 U.S.C. §1391(e)(1). In Troya, the government, responding on behalf of the official-capacity defendants, appropriately denied that subsection 1391(b)(2) conferred venue over the official capacity defendants. Defs.' Reply at 3-4. As Defendants here explain, “that denial was not an assertion that venue was improper for officialcapacity claims in the Southern District of Indiana, but that it was improper under 28 U.S.C. § 1391(b)(2) as alleged by Troya.” Id. at 5 (internal quotations omitted). Consequently, the government has not “pull[ed] the rug out from under” Plaintiff by requesting transfer to an appropriate transferee court. Pl.'s Opp'n at 16.

B. Private and Public Interest Factors^[1]

At the second step of the transfer analysis, the court considers several factors related to the private and public interest. Here, three of the private interest factors weigh in favor of transfer, two weigh against, and one is neutral. One of the three public-interest factors tips in favor of transfer, one weighs slightly against, and the other is neutral.

As a threshold matter, the parties dispute whether BOP changed its policy at all. Supra at 2-3.^[2] Plaintiff contends that BOP implemented a new policy that expands Section 540.44(c)'s prior relationship rule for friends and associates so that it also applies to immediate family members covered by Section 540.44(a). Pl.'s Mot. at 1. Defendants counter that BOP's decision “did not state that a prior relationship was a prerequisite for a spouse to be permitted to visit, but only that a prior relationship was a factor that can be considered as part of the Warden's exercise of discretion to approve or deny visitors.” Defs.' Mot. at 11-12; see also Decl. of Todd Royer ¶ 9, ECF No. 16-2 (“I have regularly denied visitation requests for spouses . . . if there appears to be a security or safety risk, and whether or not the spouse had a prior relationship with the inmate (i.e., one that pre-dates incarceration) is relevant to that assessment.”).

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