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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD JOYNER, Individually, : No. 04cv489

and as personal representative of the :

Estate of Frank Joyner, Jr., : Judge Jones

:

Plaintiff :

v. :

:

FEDERAL BUREAU OF PRISONS, et al., :

:

Defendants :

MEMORANDUM AND ORDER

November 17, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Dismiss or, in the Alternative, for

Summary Judgment (“the Motion”) (doc. 21) filed by Defendants on July 5, 2005. 

For the reasons that follow, the parties will be provided with ten (10) days from the

date of this Order to render a submission or otherwise show cause as to why this

case should not be transferred back to the United States District Court for the

District of Columbia. If the Court does not receive such a submission within ten

(10) days then the Court will transfer this action back to the United States District

Court for the District of Columbia. 

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PROCEDURAL HISTORY:

The Plaintiff, Richard Joyner (“Plaintiff”) individually and as the personal

representative of the Estate of Frank Joyner, Jr., deceased, filed a complaint in the

United States District Court for the District of Columbia on or about August 16,

2000. The complaint named the District of Columbia and the United States

Penitentiary at Lewisburg, Pennsylvania (“USP Lewisburg”) as Defendants. After

filing an answer to the complaint on November 24, 2000, USP Lewisburg filed a

motion to dismiss the complaint or, in the alternative, to transfer the case to the

Middle District of Pennsylvania. On December 13, 2001, the District of Columbia

filed a motion to dismiss the complaint. 

On or about March 21, 2002, Plaintiff filed a motion for leave to amend the

complaint, which was granted by an April 3, 2002 order. The amended complaint

names the following additional Defendants: Bureau of Prison (“BOP”); Odie

Washington, Director, District of Columbia Department of Corrections; John

Ashcroft, Attorney General of the United States; Scott Dodrill, Warden, USPLewisburg; and Unknown Defendants. 

On April 15, 2002, the District of Columbia filed a motion for judgment on

the pleadings, and to dismiss the amended complaint. The same day, the federal

Defendants filed a motion to dismiss the amended complaint or, in the alternative,

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to transfer the case to the Middle District of Pennsylvania. By June 2, 2003

Memorandum and Order, the United States District Court for the District of

Columbia dismissed the case against the District of Columbia, Anthony Williams,

Margaret Moore, and Odie Washington and transferred the case against the federal

Defendants to this Court, which we will discuss in more detail in this narrative. 

The case was certified to this Court on March 3, 2004. 

On April 29, 2005, a telephonic conference was held regarding Plaintiff’s

discovery requests and a pending request by the Federal BOP to stay discovery. 

By April 29, 2005 Order, the Court removed the case sub judice from the

November 2005 trial list and placed it on the February 2006 trial list. We placed a

moratorium on all discovery for a ninety day period, commencing with the date of

the April 29, 2005 Order. (Rec. Doc. 20). 

On July 5, 2005, the remaining Defendants filed the instant Motion, which

has been fully briefed by the parties. 

FACTUAL BACKGROUND:

This action arises out of the death of Plaintiff, Sgt. Richard Joyner’s father,

Frank Joyner, at USP Lewisburg. In the amended complaint brought pursuant to

42 U.S.C. § 1983 (“§ 1983"), Plaintiff asserts violations of his father’s Fifth,

Eighth, and Fourteenth Amendment rights, and has asserted negligence and

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intentional infliction of emotional distress supplemental state law claims. Plaintiff

asserts that his father was originally housed in the Lorton Institution in Washington

D.C., but was subsequently transferred to USP Lewisburg. Plaintiff’s father had

been housed at USP Lewisburg for approximately ten years at the time of his death

on August 28, 1997, during which time he had allegedly been subjected to physical

and emotional abuse by inmates and Lewisburg corrections staff. 

In the amended complaint, Plaintiff alleges that members of the Lewisburg

corrections staff were not properly trained, that Defendants failed to properly

classify its prison population, and that Defendants failed to protect Frank Joyner

from attacks by other inmates, notwithstanding actual notice of such danger on a

daily basis. (Am. Compl. ¶ 15). On August 28, 1997, Frank Joyner was stabbed to

death “approximately 92 times,” allegedly by other inmates, “as members of the

Lewisburg correctional staff stood by, taking no effective action to intervene.” Id.

¶ 16. Plaintiff has brought this action seeking compensatory and punitive damages

for the injuries and losses he has suffered as the result of the death of his father. 

DISCUSSION:

We initially note that the Honorable Reggie B. Walton (“Judge Walton”),

United States District Judge for the District of Columbia, transferred the instant

case to this Court based on 28 U.S.C. § 1404(a). Section 1404(a) of Title 28 of the

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United States Code states, in pertinent part, as follows:

(a) For 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.

28 U.S.C. § 1404(a) (emphasis added). Under § 1404(a), two showings must be

established for the case to be transferred to another district or division. First, a

threshold question to consider is whether the action “might have been brought” in

the proposed transferee district, the Middle District of Pennsylvania. High River

P’ship v. Mylan Labs., Inc., 353 F.Supp.2d 487, 492 (M.D. Pa. 2005); see also

Measurement Specialities, Inc. v. Stayhealthy.com, 275 F.Supp.2d 638, 640 (E.D.

Pa. 2003). “If this limitation is met, the court must then weigh a list of factors.” 

High River P’ship, 353 F.Supp.2d at 492 (emphasis added). Stated another way, a

showing must be made that the transfer will serve the convenience of the parties

and the witnesses, and the interests of justice. Savoy Owners Associates, Inc. v.

Corporation of New York, 2003 U.S. Dist. LEXIS 3317, at *3 (S.D.N.Y. 2003). 

In considering the Motion before the Court, it became apparent to us that the

learned District Judge, likely through inadvertence, disregarded the abovereferenced dictates of § 1404(a) in transferring this case to the Middle District of

Pennsylvania, for the reasons that follow. 

As Defendants accurately submit, in a Bivens v. Six Unknown Named

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 We note that Plaintiff’s submissions indicate that the Federal Tort Claims Act

(“FTCA”) claims are voluntarily withdrawn. The remaining civil rights claim in the amended

complaint is a Bivens claim. 

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Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens action”),

where no federal statute of limitations exists, state time limits are adopted if not

inconsistent with federal law.1

 Sameric Corp. v. City of Philadelphia, 142 F.3d

582, 599 (3d Cir. 1998) (concerning a suit brought pursuant to 42 U.S.C. § 1983). 

Section 1983 claims, which are equivalent to Bivens-type actions, are governed by

the relevant state’s statute of limitations for personal damages. Id. It is wellestablished that in Pennsylvania, actions to recover for personal damages must be

commenced within two years and a cause of action accrues when the plaintiff

knows or has reason to know of the damages that are the basis of the action. 42

Pa.C.S. § 5524(2); see also Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993);

Deary v. Three Un-Named Police Officers, 746 F.2d 185, 193-4 (3d Cir. 1984). In

contrast to Pennsylvania’s applicable two year statute of limitations, the District of

Columbia applies a three year statute of limitations to Bivens cases. See Arshal v.

Dalton, 1996 U.S. App. LEXIS 32875, at *6 n.3 (9th Cir. 1996) (citing Hobson v.

Wilson, 737 F.2d 1, 32 n. 99 (D.C. Cir. 1984)(holding that the District of

Columbia’s statute of limitations for Bivens actions is three years). It is

undisputed by the parties that Frank Joyner was murdered on August 28, 1997. 

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 We note that in their submissions before the United States District Court for the District

of Columbia, the Federal Defendants requested that the District of Columbia dismiss Plaintiff’s

complaint or, alternatively, transfer this case to the Middle District of Pennsylvania. In

requesting such transfer, the Federal Defendants addressed both 28 U.S.C. §§ 1404 and 1406. 

We find it puzzling that the Federal Defendants would request a transfer to this Court pursuant to

§ 1404, which was granted by Judge Walton as per his June 2, 2003 Memorandum and Order,

and now argue before this Court that Judge Walton appears to have concluded that venue was

improperly laid in the District of Columbia under § 1406, despite his references to § 1404(a). 

A further puzzling aspect to this case is that it does not appear that Plaintiff referenced

the two year Pennsylvania statute of limitations issue, that would likely arise if this case were

transferred to the Middle District of Pennsylvania, in submissions to the United States District

Court for the District of Columbia. Instead, it appears that Plaintiff focused upon the fact that it

would be overly onerous and burdensome on him and other family members if the case were to

be transferred. 

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Accordingly, in order to meet the requisite time limitations for an action to recover

personal damages in Pennsylvania, Plaintiff’s complaint must have been filed on or

before August 28, 1999; however, it was not filed until August 25, 2000. Plaintiff

therefore brought this action within the District of Columbia’s three year statute of

limitations, but Pennsylvania’s applicable two year statute of limitations clearly

reflect that this case could not have originally been brought in Pennsylvania. The

transfer of this case to the Middle District of Pennsylvania pursuant to 28 U.S.C. §

1404(a) effectively gave rise to a potentially complete statute of limitations

defense, which is exactly what the dictates and plain language of § 1404(a) were

designed to prevent.2

 

To the extent that Defendants argue in their submissions, and will likely

argue in future submissions, that the United States District Court for the District of

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Columbia “appears to have concluded that venue was improperly laid in the

District of Columbia,” we are guided by the clear language of Judge Walton’s June

2, 2003 Memorandum and Order. (Rec. Doc. 32, at 9-12). In the June 2, 2003

Memorandum and Order, Judge Walton acknowledges that having deciding that

the claims against the District of Columbia and its officials must be dismissed, the

court was then to consider whether the case should remain in the District of

Columbia or be transferred to the Middle District of Pennsylvania. In reviewing

the issue of whether to transfer this case, Judge Walton first and foremost cited to

the plain language of 28 U.S.C. § 1404(a), as well as caselaw addressing such

statute. Joyner v. District of Columbia, Civil No. CV-00-2006, at 9 (D.D.C. June

2, 2003). As Defendants submit, § 1404(a) operates on the premise that the

plaintiff has properly exercised his or her venue privilege, whereas § 1406(a)

provides for transfer from forums in which venue is wrongly or improperly laid. 

Van Dusen v. Barrack, 376 U.S. 612, 634 (1964). 

After dismissing the District of Columbia and District of Columbia officials

as Defendants, Judge Walton noted that the only connection this action has with

the District of Columbia is the situs of the BOP and the Attorney General’s

headquarters. Joyner, Civil No. CV-00-2006, at 10. Although Judge Walton

explained that the interest of justice and convenience of the parties and witnesses

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dictate that the case should be transferred to the Middle District of Pennsylvania, it

is notable that the District Judge did not indicate that the District of Columbia was

an improper venue in which the Plaintiff brought suit pursuant to 28 U.S.C. §

1406(a). Instead, Judge Walton determined that the Middle District of

Pennsylvania was a more convenient venue for this action under a different statute,

that of 28 U.S.C. § 1404(a). We decline to read into Judge Walton’s order

rationale under § 1406(a) which is nowhere present therein. 

Finally, the parties disagree as to whether the statute of limitations of the

transferor or the transferee court applies to this Bivens action. Although the parties

appear to agree the Supreme Court instructed that when a defendant in a diversity

action moves for a transfer of venue under § 1404(a), the state law that would have

applied in the transferor court adheres to the case, Van Dusen v. Barrack, 376 U.S.

612 (1964), the state of the law is neither settled nor uniform regarding the proper

statute of limitations law to apply with regard to federal question cases, such as the

instant one. We need not reach this issue however, nor do we express any opinion

as to the merits of Defendants’ Motion, because our intention under the

circumstances of this case is to transfer it back to the United States District Court

for the District of Columbia. It would be a supreme injustice to the Plaintiff in our

opinion if we were to determine that Pennsylvania’s two year statute of limitations

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is an absolute bar to this action, which appears to us to at least colorably have been

properly brought in the United States District Court for the District of Columbia. It

is likewise clear to us, as previously noted, that it was not Judge Walton’s intention

to transfer this case to our docket in order to allow it to be dismissed on statute of

limitations grounds which were not available in his jurisdiction. 

Accordingly and as stated, justice dictates that our only course of action

under the circumstances is to transfer this case back to the United States District

Court for the District of Columbia. We truly hesitate to take this unorthodox step

which has the appearance of judicial “ping-pong;” however, we see no other way

to resolve what is an evident problem. As we previously indicated, the parties will

be provided with ten (10) days from the date of this Order to render a submission

or otherwise show cause as to why this case should not be transferred back to the

United States District Court for the District of Columbia. If the Court does not

receive such a submission within ten (10) days from the date of this Order, then we

will transfer this action back to the United States District Court for the District of

Columbia. 

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NOW, THEREFORE, IT IS ORDERED THAT:

1. The parties will be provided with ten (10) days from the date of this

Order to render a submission or otherwise show cause as to why this

case should not be transferred back to the United States District Court

for the District of Columbia. 

2. If the Court does not receive such a submission within ten (10) days,

then the Court will transfer this action back to the United States

District Court for the District of Columbia. 

s/ John E. Jones III

John E. Jones III

United States District Judge

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