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Barroca v. United States

United States District Court, N.D. California

November 5, 2019




         Before the Court is defendant United States of America's “Second Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a), ” filed August 27, 2019. Plaintiff Robert Barroca has filed opposition, to which defendant has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.[1]


         Plaintiff, a federal prisoner currently incarcerated at Federal Correctional Institution Beckley, in Beaver, West Virginia (“FCI Beckley”), alleges that medical professionals employed at the Bureau of Prisons (“BOP”) have provided him with negligent medical care at various federal prisons.

         In particular, plaintiff alleges that, in 2009 at a federal prison in Terre Haute, Indiana (“FCI Terre Haute”), he received negligent treatment, specifically, a failure to perform recommended surgery for “severe popping, grinding, decreased range of motion, and severe pain in his right elbow” (see First Amended Complaint (“FAC”) ¶ 6). Plaintiff further alleges such failure to provide surgery continued after his transfer, in May 2012, to a federal prison in Lompoc, California (“USP Lompoc”), his transfer, in September 2014, to a federal prison in Leavenworth, Kansas (“USP Leavenworth”), his transfer, in March 2017, to a federal prison in Victorville, California (“FCI Victorville”), his transfer, in January 2018, to a federal prison in Terminal Island, California (“FCI Terminal Island”), his transfer, in April 2018, to a federal prison in Lexington, Kentucky (“FMC Lexington”), and his transfer to his current placement at FCI Beckley.[2]

         Additionally, plaintiff alleges that, during his incarceration at USP Leavenworth, he was negligently treated for esophageal reflux disease, pain in his knees and left elbow, and an injury to his right foot, which negligent care allegedly continued at each of the federal prisons to which he was transferred thereafter.

         Based on the above allegations, plaintiff asserts six Counts of medical negligence and seeks, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, compensatory and punitive damages, as well as attorney's fees and costs.


         “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). By the instant motion, defendant seeks an order transferring the above-titled action to the District of Kansas.

         At the outset, the Court finds the instant action could have been brought in the District of Kansas, given the numerous acts and omissions that are alleged to have occurred during plaintiff's incarceration at USP Leavenworth. See 28 U.S.C. § 1402(b) (providing, for action under FTCA, venue is proper in district “where the act or omission complained of occurred”). The Court next addresses the question of convenience.

         “A motion to transfer venue under § 1404(a) requires the court to weigh multiple factors in its determination whether transfer is appropriate in a particular case.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir.), cert. denied, 531 U.S. 928 (2000). In that regard, the Ninth Circuit has provided a list of non-exclusive factors a district court “may consider, ” which, in addition to the convenience of the witnesses, include: “(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.” See id. at 498-99. The Court addresses the relevant factors in turn.

         The first factor, location of relevant agreements, is inapplicable here, as the instant action sounds in tort, rather than contract. Accordingly, the first factor weighs neither in favor of nor against transfer.

         As to the second factor, familiarity with governing law, the Court expects the majority of plaintiff's claims will be decided under Kansas law, in that the tortious acts and omissions giving rise to those claims are alleged to have first occurred at USP Leavenworth. See Tekle v. United States, 511 F.3d 839, 853 (9th Cir. 2007) (providing federal courts, “in assessing the United States' liability under the FTCA, . . . are required to apply the law of the state in which the alleged tort occurred.” (internal bracket omitted)); S.H. by Holt v. United States, 853 F.3d 1056, 1061-62 (9th Cir.) (holding that under the FTCA “an injury ‘occurs' where it is first suffered, even if a negligent act later results in further or more serious harm”). In particular, Kansas law is controlling as to Counts Two, Three, Five and Six, as well as Count Four to the extent such claim is based on treatment other than for plaintiff's right elbow. To the extent Count Four is based on treatment of plaintiff's right elbow, such claim, along with Count One, which is entirely based on plaintiff's right elbow, will be governed by the law of Indiana, plaintiff having alleged such negligent treatment first occurred at FCI Terre Haute. In short, the majority of the causes of action alleged in the complaint will be decided under Kansas law, and, consequently, the District of Kansas is likely the district “most familiar with the governing law.” Accordingly, the second factor weighs in favor of transfer.

         As to the third factor, plaintiff's choice of forum, plaintiff alleges he was a resident of the Northern District of California (“Northern District”) prior to his incarceration and that he intends to relocate to such district, either through his request for transitional “Residential Re-entry Center” placement in 2019 (see Opp'n at 5:22-23) or following his anticipated release from BOP custody in July 2020. Plaintiff, however, has resided outside the Northern District since at least September 15, 2005, [3] on which date, plaintiff alleges, he was in federal custody in Oklahoma, en route to FCI Terre Haute. And although plaintiff alleges “the vast majority of the negligent care [he] complains about . . . has occurred within California” (see FAC ¶ 1), most of plaintiff's allegations concern events in Kansas, not California, and the only tortfeasors he names in his complaint are alleged to have provided treatment in Kansas. Further, although plaintiff alleges he was subjected to negligent medical care while incarcerated in California, namely at USP Lompoc, FCI Victorville, and FCI Terminal Island, all of those prisons are located in the Central District of California, not in this district, which is situated a substantial distance to the North. Under such circumstances, plaintiff's choice of forum is entitled to “little deference.” See Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 693 (9th Cir.2009) (holding district court did not err in giving “little deference” to foreign corporation's choice of Washington State as forum; noting ...

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