Free Case Transferred Out to Another District - District Court of California - California

Case 3:08-cv-00427-J-AJB

Document 3

Filed 03/17/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Plaintiff, currently incarcerated at Salinas Valley State Prison located in Soledad, vs. MARLIN SNYDER, et al. Defendants. MANUEL TAMAYO TORRES, Jr., CDCR #V-12118, Plaintiff, ORDER TRANSFERRING CIVIL ACTION FOR LACK OF PROPER VENUE TO THE EASTERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. § 84(b), 28 U.S.C. § 1391(b) AND 28 U.S.C. § 1406(a) Civil No. 08-0427 J (AJB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

17 California, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges his 18 constitutional rights were violated by prison officials while he was incarcerated at the California 19 Correctional Institution in Tehachapi, California. Plaintiff did not prepay the $350 civil filing fee 20 mandated by 28 U.S.C. § 1914(a); instead he has filed a Motion to Proceed In Forma Pauperis 21 ("IFP") pursuant to 28 U.S.C. § 1915(a). 22 I. 23 Lack of Proper Venue Upon initial review of the Complaint, the Court finds that Plaintiff's case lacks proper

24 venue. Venue may be raised by a court sua sponte where the defendant has not yet filed a 25 responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 26 1488 (9th Cir. 1986). "A civil action wherein jurisdiction is not founded solely on diversity of 27 citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district 28 where any defendant resides, if all defendants reside in the same State, (2) a judicial district in

K:\COMMON\EVERYONE\_EFILE-PROSE\J\08cv0427-transferED.wpd

1

08cv0427

Case 3:08-cv-00427-J-AJB

Document 3

Filed 03/17/2008

Page 2 of 2

1 which a substantial part of the events or omissions giving rise to the claim occurred, or a 2 substantial part of property that is the subject of the action is situated, or (3) a judicial district in 3 which any defendant may be found, if there is no district in which the action may otherwise be 4 brought." 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth 5 Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). "The district court of a district in which is filed 6 a case laying venue in the wrong division or district shall dismiss, or if it be in the interests of 7 justice, transfer such case to any district in or division in which it could have been brought." 28 8 U.S.C. § 1406(a). 9 Here, Plaintiff claims constitutional violations originally arising out of events which 10 occurred at California Correctional Institution in Tehachapi, California, which is located in Kern 11 County. No claim is alleged to have arisen in San Diego or Imperial Counties, and no Defendant 12 is alleged to reside here. Therefore, venue is proper in the Eastern District of California pursuant 13 to 28 U.S.C. § 84(b), not in the Southern District of California. See 28 U.S.C. § 1391(b); Costlow, 14 790 F.2d at 1488. 15 II. 16 17 18 19 20 21 22 DATED: March 17, 2008 23 24 25 26 27
1

Conclusion and Order Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall transfer this

case for lack of proper venue, in the interests of justice and for the convenience of all parties, to the docket of the United States District Court for the Eastern District of California pursuant to 28 U.S.C. § 84(b), 28 U.S.C. § 1391(b) and 28 U.S.C. § 1406(a).1

HON. NAPOLEON A. JONES, JR. United States District Judge

28 IFP [Doc. No. 2] to the Eastern District, and expresses no opinion as to whether Plaintiff's Complaint
alleges facts sufficient to survive the mandatory sua sponte screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
K:\COMMON\EVERYONE\_EFILE-PROSE\J\08cv0427-transferED.wpd

Because the Court finds transfer appropriate, it defers ruling on Plaintiff's Motion to Proceed

2

08cv0427