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United States District Court, W.D. New York

June 9, 2005.

ROGERS HICKS as Court Appointed Guardian on behalf of Rudy Hicks, and RUDY HICKS, Individually, Plaintiffs,
J.R. JAMES, Warden, Federal Bureau of Prisons, Butner, N.C., DR. ROBERT G. LUCKING, Psychiatrist, FBP, Butner, N.C., MITCHELL SPRINKLE, Case Manager, Mental Health, FBP, Butner, N.C., EDWARD E. LANDIS, III, Ph.D., FBP, Butner, N.C., JOHN DOE #1, Warden, FBP, McKean, SUSAN BATES, ED.D., FBP McKean, and WALTER L. RINEHART, Psychiatrist, FBP, McKean, Defendants.

The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge


Plaintiffs Rogers Hicks, as guardian of Rudy Hicks ("Hicks"), and Rudy Hicks filed this action on January 9, 2004. On December 21, 2004, Defendants filed this motion to dismiss. This motion was argued and submitted on May 20, 2005. For the reasons set forth below, Defendants' motion will be denied without prejudice and this action will be transferred to the Eastern District of North Carolina.

This is an action under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), stemming from the alleged violation of Hicks's Eighth Amendment right to treatment for serious mental illness while he was incarcerated in McKean, a federal prison in Pennsylvania, for two years.*fn2 Hicks's sentence expired on February 11, 1999, but Defendants, various personnel of the Federal Bureau of Prisons, successfully moved in the Eastern District of North Carolina to have Hicks committed by reason of mental illness. Hicks was subsequently transferred from North Carolina to the New York State Psychiatric Center in Buffalo. Plaintiffs seek $5 million for Defendants' alleged failure to treat Hicks for his mental illness while incarcerated in McKean, where he was often placed in solitary confinement due to his refusal to take his medication.

  Defendants seek dismissal on the ground that, inter alia, Plaintiffs failed to properly serve Defendants as required by FRCvP 4(i)(2)(B). Plaintiffs responded by stating that Judge Larimer*fn3 purportedly authorized service in the manner that Plaintiffs purport to have effected service. Defendants also sought dismissal on the ground that this Court lacks personal jurisdiction. Although Plaintiffs argue that venue is proper, they appear to concede that this Court lacks personal jurisdiction over the Defendants. Moreover, at oral argument, the parties noted a possible statute of limitations issue inasmuch as this action was filed one day before the running of the three year statute of limitations.*fn4

  Plaintiffs have not even attempted to satisfy the burden of demonstrating that personal jurisdiction exists over Defendants in this district.*fn5 Rather, Plaintiffs ask this Court to transfer this case to another district. In order to allow Plaintiffs to have their day in court and in the interest of justice, this Court will grant Plaintiffs' request to transfer this action to the Eastern District of North Carolina*fn6 pursuant to 28 U.S.C. § 1406(a).*fn7 Dismissing this action would greatly prejudice Plaintiffs whereas transferring this action would not substantially burden Defendants, who remain free to renew their motion to dismiss with the transferee court.*fn8 Although personal jurisdiction may not lie in the Eastern District of North Carolina with respect to all defendants, that court has jurisdiction over some of the defendants — and it is a district in which a substantial part of the alleged events occurred. Consequently, venue is appropriate in the Eastern District of North Carolina under 28 U.S.C. § 1391(b)(2)*fn9 and the transferee court should determine whether or not personal jurisdiction exists over the non-North Carolina defendants.

  Plaintiffs' counsel, Richard L. Baumgarten, Esq., signed the Complaint in this action, despite the fact that he was not admitted to practice in this district until Chief Judge Arcara re-admitted him effective April 2, 2004. Baumgarten's Affirmation In Opposition To Defendants' Motion To Dismiss stated at its fifth page that "Plaintiffs initially commenced the instant civil rights action, pro-se, and without the assistance of counsel." This assertion is directly refuted by the Complaint, which bears Baumgarten's signature and which suggests that Baumgarten was practicing in this district without having been admitted. This Court finds Plaintiffs' counsel's assertion to be disingenuous. Consequently, this Court will sanction Mr. Baumgarten $350 unless he explains this discrepancy to this Court's satisfaction.

  Accordingly, it is hereby ORDERED that Defendants' motion to dismiss is denied without prejudice, that the Clerk of this Court shall transfer this action to the Eastern District of North Carolina for further proceedings and that Richard L. Baumgarten, Esq. shall, no later than June 27, 2005, submit to this Court a letter of no more than two pages explaining the misleading statement in Plaintiffs' opposition papers or pay the Clerk of this Court $350 by July 1, 2005.

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