United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-1506

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Blanche Elizabeth Dyer, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

United States of America, *

* [UNPUBLISHED]

Appellee. *

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 Submitted: February 28, 1997

 Filed: March 21, 1997

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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

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PER CURIAM.

Blanche Elizabeth Dyer appeals the district court's grant of

summary judgment to defendants in her action filed under the

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 administrative remedies, Dyer filed this

action alleging that in February 1989, while she was a federal

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
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Service (USMS) so they could make arrangements for her

transportation. On March 2, however, Dyer was transferred to the
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Metropolitan Corrections Center (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

finally transferred to the Federal Corrections Institute in

Pleasanton, California, in May 1989. She was diagnosed with

Graves' Disease and was treated with radiation pills. Dyer alleged

that she suffered weeks of needless pain and eventually required

more treatment than would have been needed had she received

immediate treatment.

The district court granted summary judgment to the government,

finding that the government was not liable under the FTCA for the

alleged negligence of the jail medical staff, and the USMS's mere

knowledge of the scheduled appointment with a specialist was

insufficient to impose liability on the USMS. This court reviews

the district court's grant of summary judgment de novo, applying

the same standard as the district court; summary judgment is

appropriate when, viewing the record in the light most favorable to

the nonmoving party, there is no genuine issue of material fact 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) (per

curiam).

While the USMS may not have been responsible for Dyer's delay

in seeing a specialist, as it did not have custody of her on the

date of her March 7 appointment, we conclude that a question

remains as to whether the BOP was negligent in failing to take Dyer

to a specialist for several months. 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 administrative claim was filed with the USMS,

that agency had the responsibility to transfer the claim to the
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appropriate federal agency if it could be determined from the

claim. See 28 C.F.R. § 14.2(b)(1). Dyer complained in her
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administrative claim about the delay in seeing a specialist

following her transfer to federal custody. Because the USMS

response to her claim disavowed any USMS responsibility for Dyer's

treatment, and stated the BOP had provided treatment after she was

transferred to Illinois, the USMS could have determined that the

claim should have been transferred to the BOP, and thus Dyer can

pursue against the United States her claim that she did not receive

proper medical care while incarcerated. See Greene v. United

States, 872 F.2d 236, 237 (8th Cir. 1989) (when federal agency

fails to transfer FTCA claim to appropriate agency, claim is deemed

timely presented and properly exhausted).

Because the proper focus of Dyer's complaint is on actions

that occurred when she was in Illinois, the Iowa district court no

longer provides the proper venue for her claim. See 28 U.S.C.

§ 1402(b) (FTCA claim may be prosecuted in district where plaintiff

resides or where "the act or omission complained of occurred"). As

Dyer would now be precluded from refiling her claim in Illinois,

and her belief that the action was properly filed in Iowa was

reasonable, we direct the district court to transfer the case to

the Northern District of Illinois. See 28 U.S.C. § 2401(b) (FTCA

claim must be brought within six months of denial of administrative

claim); 28 U.S.C. § 1406(a) (district 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).
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A true copy.

Attest:

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