United States District Court, D. South Carolina
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
matter arises under the Federal Tort Claims Act (âFTCAâ) and
comes before the court pursuant to 28 U.S.C. Â§ 636 and Local
Civil Rule 73.02(B)(2) (D.S.C.) on the defendant's
(âGovernment'sâ) motion to bifurcate (or sever) the
plaintiff's claims and transfer some of the claims to the
âappropriateâ district in North Carolina. The plaintiff is an
inmate in the federal Bureau of Prisons (âBOPâ) and asserts
claims of negligence and medical malpractice against the
Government. For the reasons that follow, the Government's
motion is denied. (ECF No. 16.)
here, the plaintiff's claims arise out of a shoulder
injury he sustained while an inmate at the Federal
Correctional Institution in Estill, South Carolina. The
plaintiff alleges that the Government was negligent in
failing to timely treat his injury. Eventually, medical
personnel at FCI-Estill determined that the plaintiff needed
shoulder surgery and transferred him to the Federal
Correctional Complex in Butner, North Carolina for the
physicians there to perform the surgery. However, the surgery
was delayed for over eleven months after his arrival there.
plaintiff points out, the Government does not dispute that
venue is proper in the District of South Carolina with
respect to events that occurred here. See generally
28 U.S.C. § 1402(b) (“Any civil action on a tort
claim against the United States . . . may be prosecuted only
in the judicial district where the plaintiff resides or
wherein the act or omission complained of
occurred.”); (see also Def.'s Mem. Supp.
Mot. Transfer at 4, ECF No. 16 at 4). Rather, it contends
that venue is appropriate in North Carolina with regard to
the acts and omissions complained of there.
the applicable venue statute, venue for a tort claim against
the United States may properly lie in more than one judicial
district. See, e.g., Morris v. United
States, No. 2:13-cv-02246, 2013 WL 6623886, at *2 (W.D.
La. Dec. 16, 2013) (recognizing in an FTCA case where a BOP
inmate was alleged to have received inadequate medical care
at two BOP facilities that venue was proper in the Northern
District of Florida and the Northern District of Texas where
the acts or omissions occurred and in the Western District of
Louisiana where the decedent's personal representative
resided). Accordingly, venue is proper in this district.
Therefore, whether to sever the plaintiff's claims and
transfer the ones based on alleged omissions that occurred in
North Carolina is a determination to be made under §
1404(a) and is within the sound discretion of the court.
See Dicken v. United States, 862 F.Supp. 91, 92 (D.
Md. 1994) (finding that transfer of venue was discretionary
under § 1404(a) where venue was proper in two districts
under § 1402(b)); Grayson Consulting, Inc. v.
Cathcart, No. 2:07-CV-02992-DCN, 2014 WL 1512029, at *2
(D.S.C. Apr. 8, 2014) (“Under Rule 21, ‘a court
has virtually unfettered discretion in determining whether or
not severance is appropriate.' ”) (quoting 17th
St. Assocs., LLP v. Markel Int'l Ins. Co. Ltd., 373
F.Supp.2d 584, 604 n.9 (E.D. Va. 2005)).
generally apply four factors in considering whether to
exercise their discretion to change venue. See
generally 28 U.S.C. § 1404(a); see also
Trustees of the Plumbers & Pipefitters Nat'l Pension
Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th
Cir. 2015). They include: “(1) the weight afforded to
[the] plaintiff's choice of venue; (2) witness
convenience and access; (3) convenience of the parties; and
(4) the interest of justice.” Trustees, 791
F.3d at 444. Court have recognized that unless the balance is
strongly in the defendant's favor, the plaintiff's
choice of forum should not be disturbed. Collins v.
Straight, Inc., 748 F.2d 916, 921-22 (4th Cir. 1984).
the factors weigh against severance and transfer. Cf.
Morris, 2013 WL 6623886 (declining to transfer venue in
an FTCA case from the district where the plaintiff resided to
one of the two districts where the alleged medical negligence
within the BOP occurred). As to witness convenience and
access, the court observes that, other than the plaintiff,
the witnesses appear to be employees under the control of the
Bureau of Prisons rather than third-party medical provider
witnesses. Moreover, severing the claims and potentially
requiring witnesses to present testimony in two forums about
the plaintiff's injuries and treatment does not further
the goal of convenience to either the witnesses or the
parties. The interests of justice would also not be served by
requiring the plaintiff to litigate his claims in two forums
and compel testimony in two districts when all of the
evidence relates to his treatment for a single injury
sustained in this district.
Government's arguments to the contrary are not availing.
While it argues that the alleged delay in treatment of the
plaintiffs injury was greater at its North Carolina facility
than the delay alleged at the South Carolina facility, the
fact remains that venue is proper here. And, despite the
Government's efforts to parse its agents' acts or
omissions into separate claims and characterize them like a
Bivens case where the doctors and medical providers
are often named as individual defendants, here the actors are
employee witnesses of the BOP whose acts or omissions all
constitute part and parcel of the same claims against one
defendant. Litigating those claims in two different districts
could also present a risk of inconsistent rulings, jury
confusion, and prejudice to the plaintiff. Finally, although
the Government argues that the court will have to apply the
law of North Carolina and South Carolina separately to
consider the plaintiffs claims, it identifies no meaningful
distinction warranting bifurcation and transfer.
the defendant's motion (ECF No. 16) is denied.
IS SO ORDERED.
 Cf. 28 U.S.C. § 1391
(containing the general venue statute which includes in
subsection (b)(2) a provision laying venue in “a
judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred”)
 As the plaintiff points out, what the
Government seeks to do here is not to sever a claim as
contemplated under Rule 21, but rather to create two claims
in each instance where the plaintiff has alleged only one.
(See Pl.'s Resp. Opp'n at 2, ECF No. 17 at
2) (“Plaintiff appropriately pled Defendant's
conduct in the two states as unified claims: the actions were
committed by the same Defendant related to the same injury as
part of a single, continuous course of conduct.”)
(citing Beattie v. United States, 756 F.2d 91, 101
(D.C. Cir. 1984) (venue proper under 28 U.S.C. § 1402(b)
where acts occurred in two places but could “accurately
be described as a single cause of action with two grounds for