Armstrong v. United States of America

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
IESHA NICOLE ARMSTRONG, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-25-500-SLP
)
UNITED STATES OF AMERICA, 	)
)
Defendant. 	)
REPORT AND RECOMMENDATION
Plaintiff Iesha Nicole Armstrong, a pro se federal prisoner,1 filed a Complaint
against the United States of America in the United States District Court for the Northern
District of West Virginia, alleging five claims under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671–80. (Doc. 1). After it dismissed Claims One through Four,
the Court for the Northern District of West Virginia transferred the remaining claim to this
Court for proper venue. (Doc. 18). United States District Judge Scott L. Palk referred this
matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. §
636(b)(1)(B)–(C). 	(Doc. 	21). 	For 	the 	reasons 	set 	forth 	below, 	the 	undersigned
recommends that the Court DISMISS Plaintiff’s Claim Five.
1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard
than formal pleadings drafted by lawyers.” 	Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 	But the court
cannot serve as Plaintiff’s advocate, creating arguments on his behalf. 	See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
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I. 	Plaintiff’s Complaint and Procedural Background
Plaintiff is a federal inmate currently confined at the Federal Correctional Institution
(“FCI”) in Tallahassee, Florida. (See Doc. 1, at 1); see also BOP Register No. 16857-899,
https://www.bop.gov/inmateloc (last visited Oct. 21, 2025). 	Plaintiff was previously
confined at the Federal Transfer Center (“FTC”) located in Oklahoma City, Oklahoma, for
approximately six days. (See Doc. 1, at 8–9; Doc. 18, at 4). Before that, she was confined
at the FCI in Hazelton, West Virginia. (See Doc. 1, at 2).
In her Complaint, Plaintiff alleged five claims against the United States under the
FTCA. (See Doc. 1). After Defendant filed a motion to dismiss and Plaintiff responded,
four of the claims were dismissed with prejudice. (See Doc. 18, at 18). Claim Five was
transferred to this district because the Court for the Northern District of West Virginia
found that Plaintiff’s alleged harm occurred at the FTC. (See id.). Plaintiff alleges in this
remaining claim that, when she was at the FTC on November 20, 2023, she “fainted and
injured [her] left foot” and this injury “was never treated” and caused “significant pain
daily for six months.” 	(Doc. 1, at 8). 	The United States provided supplemental briefing
on July 9, 2025, as to why this claim should be dismissed. (See Doc. 26).
II. 	Analysis
A. 	Standards of Review
Defendant argues that the Complaint should be dismissed for failure to state a claim
according to Rule 12(b)(6). 	(Id. at 1). 	“To survive a motion to dismiss [under Rule
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12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also, e.g., Abdi v.
Wray, 942 F.3d 1019, 1025 (10th Cir. 2019). 	“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also, e.g.,
Sinclair Wyoming Refin. Co. v. A & B Builders, Ltd., 989 F.3d 747, 765 (10th Cir. 2021).
This includes 	a determination 	of 	“whether 	the complaint sufficiently alleges 	facts
supporting all the elements necessary to establish an entitlement to relief.” 	Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Therefore, to survive a Rule 12(b)(6) motion, Plaintiff must allege facts supporting
all elements of her FTCA claim. Plaintiff must show her claim is:
[1] against the United States, [2] for money damages, . . . [3] for injury or
loss of property, or personal injury or death [4] caused by the negligent or
wrongful act or omission of any employee of the Government [5] while
acting within the scope of his office or employment, [6] under circumstances
where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred.
Brownback v. King, 592 U.S. 209, 212 (2021) (quoting F.D.I.C. v. Meyer, 510 U.S. 471,
477 (1994)). To determine the final element, a court “resolve[s] questions of liability under
the FTCA in accordance with the law of the state where the alleged tortious activity took
place.” Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir. 1993).
A failure to allege all six elements of an FTCA claim also deprives a court of
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subject-matter jurisdiction over the claim. 	“[I]n the unique context of the FTCA, all
elements of a meritorious claim are also jurisdictional.” Brownback, 592 U.S. at 217. This
means that a plaintiff whose FTCA claim is dismissed under Rule 12(b)(6) for failure to
state a claim also finds their claim dismissed under Rule 12(b)(1) for lack of subject-matter
jurisdiction. Id. at 217–18.
B. 	Plaintiff Has Failed To State a Claim for Negligence Under Oklahoma
Law.
In the supplemental briefing, Defendant argues that Plaintiff’s claim must be
dismissed because “Plaintiff has wholly failed to allege how her foot injury was caused by
a negligent or wrongful act or omission of an employee at the [FTC].” (Doc. 26, at 2). The
undersigned agrees.
Plaintiff describes Claim Five as one arising from “personal injury” after she
“fainted while in shackles” at the FTC. 	(Doc. 1, at 8). 	While she does not allege the
specific cause of action, the undersigned liberally construes it to be one of negligence. See
Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009) (noting that the FTCA
provides for personal injury claims caused by negligence). 	“Oklahoma law requires
Plaintiff to establish proof of the following three elements to support a claim of negligence:
(1) a duty owed by the defendant to protect the plaintiff from injury; (2) a breach of that
duty by the defendant; and (3) the plaintiff’s injury was proximately caused by the
defendant’s breach of that duty.” 	Sanders v. United States, No. 14-1302-D, 2015 WL
3936973, at *2 (W.D. Okla. June 26, 2015).
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In her Response to Defendant’s Motion to Dismiss, Plaintiff explains that
I fainted at the Oklahoma transfer center as a result of being woke up at
approximately 12:00 - 1:00 a.m., to prepare to board the bus for the ride to
[FCI] Aliceville, AL. The nurse told me that the HCTZ blood pressure
medication that I was on drops your blood pressure way low during the
middle of the night and that is why I fainted. 	Had I never been transferred
from [FCI]-Hazelton due to no reason other than SIS Wood filing a false
report on me, I would have never been at the Oklahoma transfer center having
to wake up in the middle of the night to get shackled and handcuffed to board
a bus.
I was programing, working, and taking college correspondence courses while
at [FCI]-Hazelton. I was incident report free as well. When SIS Woody wrote
that report, he knew it was a lie. He abused his authority and he should be
held liable and accountable.
(Doc. 16, at 1). 	Plaintiff fails to identify how any actions of an FTC employee were in
breach of a duty of care owed to her or were the proximate cause of her injury. She does
not, for instance, allege that she was improperly shackled or handcuffed or improperly
administered medication by an FTC employee. Accordingly, Plaintiff has not alleged facts
supporting each element of a negligence claim under Oklahoma law.
For the same reasons, Plaintiff would not survive Defendant’s Motion to Dismiss
even if she intended to argue a claim not based on negligence. Plaintiff has alleged no facts
supporting the fourth or fifth elements required of every FTCA claim. She has not shown
causation between her injury and a negligent or wrongful act or omission of any employee
of the United States in the Western District of Oklahoma, nor has she shown that any such
act or omission occurred while an employee was acting within the scope of his office or
employment. Accordingly, Plaintiff’s claim should be dismissed under both Rule 12(b)(6)
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and Rule 12(b)(1).
C. 	Transfer of Claim Five Back to the Northern District of West Virginia
Is Not in the Interests of Justice.
It appears the reason Plaintiff did not allege negligence against any FTC employee
– or any employee of the FCIs where she sought treatment for her foot – is that she blames
her foot injury, failure to receive treatment, and subsequent pain entirely on a staff member
at FCI Hazelton. She states,
[t]he cognizable nexus between the investigation and my fall is that had [he]
never lied, I would not have been transferred and I would not have been woke
up during the middle of the night to be handcuffed and shackled to board a
bus. My injury and everything that I have described is directly due to the SIS
investigator lying and falsifying that incident report and I respectfully ask the
court to hold him liable.
(Doc. 16, at 2). Indeed, Plaintiff lists this employee, Special Investigative Services (“SIS”)
officer Woody, as the sole Defendant for Claim Five. (Doc. 1, at 9). 	Woody’s alleged
wrongdoing took place at FCI Hazelton, in the Northern District of West Virginia.
The venue provision of the FTCA provides that “[a]ny 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.” 28 U.S.C. §
1402(b). While it is not clear where Plaintiff “resides,”2 there is no evidence or allegation
2 When the plaintiff is a prisoner, the residency analysis in complicated by “a split of
authority on the question [of] whether an inmate retains his residence when incarcerated.”
Bailey v. United States, 1992 WL 331320, at *1 (D. Kan. Oct. 23, 1992). One court in this
circuit has determined that residence for purposes of § 1402(b) is at the prisoner’s “last
chosen place of residence prior to his incarceration.” Id. Another determined the opposite,
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to support an inference that she resides in Western District of Oklahoma. 	The Supreme
Court has held that the location where the “act or omission occurred” for purposes of which
substantive law to apply in FTCA cases means “the law of the place where the negligence
occurred” and not the law of “the place where the negligence had its operative effect.”
Richards v. United States, 369 U.S. 1, 9-10 (1962). 	At least one circuit has applied this
same 	rationale 	to 	the 	proper 	venue 	under 	§ 	1402(b), 	noting 	that 	“[a]lthough
the Richards Court did not decide the proper interpretation of the phrase ‘where the act or
omission occurred’ for purposes of venue, we share its inability ‘to conceive of any more
precise language Congress could have used than the words it did employ in the Tort Claims
Act.’” Reuber v. United States, 750 F.2d 1039, 1047 (D.C. Cir. 1984) (quoting Richards,
369 U.S. at 9), overruled on other grounds by, Kauffman v. Anglo-Am. Sch. of Sofia, 28
F.3d 1223 (D.C. Cir. 1994). Accordingly, under Plaintiff’s theory of causation, venue over
Claim Five would not be appropriate in Western District of Oklahoma. 	Venue would,
however, be appropriate in the Northern District of West Virginia.
Under 28 U.S.C. § 1406(a), a court may dismiss or, “in the interest of
justice,” transfer a [FTCA] case in which venue is defective. This provision
allows a district court to transfer a case “to any district or division in which
it could have been brought.” Id. The decision as to whether to dismiss or
transfer a case on the basis of improper venue lies within the sound discretion
of the district court. Pierce v. Shorty Small’s of Branson, Inc., 137 F.3d 1190,
1191 (10th Cir. 1998). 	In determining whether to transfer or to dismiss a
case, the determinative question is whether a transfer is in the interest of
though under a different venue statute. 	Brown v. Fed. Bureau of Prisons, 2012 WL
6774822, at *12–13 (D. Colo. Dec. 7, 2012) (“The plaintiff is currently incarcerated in
Florence, Colorado. . . . I find that . . . he resides in Colorado.”).
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justice. 28 U.S.C. § 1406(a). The interest of justice inquiry focuses on such
factors as the statute of limitations, efficiency and economy, and whether the
plaintiff’s belief that venue was correct was reasonable and in good faith:
The reasons for [transfer] are especially compelling if the
statute of limitations has run since the commencement of the
action, so that dismissal might prevent the institution of a new
suit by the plaintiff and a resolution on the merits, or if the
defendant has misled the plaintiff on the facts relevant to
venue. District courts also are likely to order transfer rather
than to dismiss the action if it would be more efficient or
economical to do so or if the plaintiff’s belief that venue was
proper was in good faith and reasonable. These are far from
being the only reasons for a court to prefer transfer rather than
dismissal of the action. Indeed, it is enough simply that the
district judge, in the exercise of his or her discretion, thinks
transfer is in the interest of justice, as many courts have
concluded.
14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure § 3827 (3d ed.).
Lemmons v. United States, No. CIV-10-99-R, 2010 WL 4925242, at *1–2 (W.D. Okla.
Nov. 4, 2010), report and recommendation adopted, 2010 WL 4925237 (W.D. Okla. Nov.
29, 2010); see Keaveney v. Larimer, 2000 WL 1853994 at *1 (10th Cir. Dec. 19, 2000)
(“We review the decision to dismiss rather than transfer [under § 1406(a)] for clear abuse
of discretion.”).
In this case, transfer of Claim Five back to the Northern District of West Virginia is
not in the interests of justice. The statute of limitations has not yet run on Plaintiff’s claim
against SIS Woody (see Doc. 1, at 9, alleging that Plaintiff fainted on November 20, 2023).
See Plaza Speedway Inc. v. United States, 311 F.3d 1262, 1267 (10th Cir. 2002)
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(addressing the FTCA’s two-year statute of limitations and observing that “‘the general
rule under the Act has been that a tort claim accrues at the time of the plaintiff’s injury’”)
(quoting United States v. Kubrick, 444 U.S. 111, 120 (1979)). 	Moreover, Plaintiff has
failed to state a claim. To state a negligence claim under West Virginia law, Plaintiff must
plausibly allege the same elements of duty, breach, and proximate causation as under
Oklahoma law. See City of Charleston, West Virginia v. Joint Commission, 473 F. Supp.
3d 596, 614 (S.D.W. Va. 2020) (explaining elements of negligence). “Under West Virginia
law, proximate cause is distinguished from a remote cause of injury because remote causes
of injury do not constitute actionable negligence. If a defendant’s alleged conduct is too
remote from the alleged harm, it cannot be a proximate cause even if it was foreseeable.”
A.D.A. ex rel. L.R.A. v. Johnson & Johnson, 912 S.E.2d 37, 63 (W. Va. Ct. App. 2024)
(citation modified). 	In this case, SIS Woody’s alleged filing of a false report in West
Virginia is both a remote and unforeseeable cause of Plaintiff’s foot injury in Oklahoma.
Even assuming the filing of the report was the proximate cause of Plaintiff’s transfer to a
different institution, Plaintiff’s fainting from her medication and fall injuring her foot were
not proximately caused by his report. Thus, Plaintiff’s allegations pertaining to Claim Five
fail to state a negligence claim under West Virginia law and thus fail to state a claim under
the FTCA. It would not be in the interests of judicial economy or efficiency to transfer this
matter back to the Northern District of West Virginia for such a determination.
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III. 	Recommendation and Notice of Right to Object
For the reasons stated, the undersigned recommends that Plaintiff’s remaining claim
against Defendant be DISMISSED.
The parties are advised of the right to file an objection to this Report and
Recommendation with the Clerk of Court by November 12, 2025, in accordance with
28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). 	The parties are further advised that
failure to timely object to this Report and Recommendation waives the right to appellate
review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral
to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 22nd day of October, 2025.
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