## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-1506

___________ Blanche Elizabeth Dyer, * * Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. United States of America, * * [UNPUBLISHED] Appellee. *

___________ Submitted: February 28, 1997 Filed: March 21, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ PER CURIAM. Blanche Elizabeth Dyer appeals the district court's grant of summar yjudgment to defendants in her action filed under th e Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (FTCA). We reverse and remand with instructions to transfer the case to the Northern District of Illinois. After exhausting her administr ative remedies, Dyer filed this actionalleging that in February 1989, while she was a federa l inmate housed at the Polk County, Iowa Jail (the jail), she began to choke and was diagnosed by Physician's Assistant Michael Farley as having a thyroid condition. Farley scheduled her to see a specialist on March 7 and notified the United States Marshal' s-2-

Se rvice (USMS) so they could make arrangements for he r transportation. On March 2, however, Dyer was transferred to the-3-

Metropolitan Corrections Cente r (MCC), a Federal Bureau of Prisons (BOP) facility, in Chicago, Illinois. At MCC, Dyer was placed on several medications, but she did not see a specialist until she was final lytransferred to the Federal Corrections Institute i n Pleasa nton, California, in May 1989. She was diagnosed wit h Graves' Disease and was treated with radiation pills. Dyer alleged tha t she suffered weeks of needless pain and eventually require d more treatment than would have been needed had she receive d immediate treatment. The district court granted summary judgment to the governmen t, finding that the government was not liable under the FTCA for the alleged negligence of the jail medical staff, and the USMS's mere knowle dge of the scheduled appointment with a specialist wa s insufficient to impose liability on the USMS. This court reviews the district court's grant of summary judgment de novo, applyin g the sa me standard as the district court; summary judgment i s appropriate when, viewing the record in the light most favor able to the nonmoving party, there is no genuine issue of material f act and the moving party is entitled to judgment as a matter of law. See Earnest v. Courtney , 64 F.3d 365, 366-67 (8th Cir. 1995) (pe r curiam). While the USMS may not have be en responsible for Dyer's delay ins eeing a specialist, as it did not have custody of her on th e date of her March 7 appointment, we conclude that a questio n remains as to whether the BOP was negligent in failing to ta ke Dyer to a specialist for several mo nths. The government did not submit any evidence to dispute Dyer's allegations that she was harmed by the BOP's lack of proper treatment. Although Dyer's administrativeclaim was filed with the USMS, that agency had the responsibility to transfer the claim to th e-4-

app ropriate federal agency if it could be determined from th e claim. See 28 C.F.R. § 14.2(b)(1). Dyer complained in her-5-

admi nistrative claim about the delay in seeing a specialis t follow ingher transfer to federal custody. Because the USM S response to her claim disavowe d any USMS responsibility for Dyer's treatment, and stated the BOP had provided treatment after she was tra nsferredto Illinois, the USMS could have determined that th e claimsh ould have been transferred to the BOP, and thus Dyer ca n pursue against the United States her claim that she did not receive pro permedical care while incarcerated. See Greene v. Unite d States , 872 F.2d 236, 237 (8th Cir. 1989) (when federal agenc y fails to transfer FTCA claim to appropriate agency, claim is deemed timely presented and properly exhausted).

Becaus e the proper focus of Dyer's complaint is on action s that occurred when she was in Illinois, the Iowa district court no lo ngerprovides the proper venue for her claim. See 28 U.S.C
. § 1402(b) (FTCA claim may be prosecuted in district where pl aintiff resides or where "the act or omission complained of occurred "). As Dyer would now be precluded from refiling her claim in Illinois , andher be lief that the action was properly filed in Iowa wa s reasonable, we direct the district court to transfer the case t o the Northern District of Illinois. See 28 U.S.C. § 2401(b) (FTCA claim must be brought within six months of denial of adminis trative claim); 28 U.S.C. § 1406(a) (d istrict court shall transfer case to proper venue if in the interest of justice); cf. Minnette v. Time Warner , 997 F.2d 1023, 1027 (2d Cir. 1993) (transfer of Title VII action to court with proper venue when statute of limitations has run is in the interest of justice).-6-

A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.