Free Order on Motion for Leave to Proceed in forma pauperis - District Court of California - California

Case 3:08-cv-00093-JAH-JMA

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Plaintiff, a former state prisoner currently detained at San Diego Correctional Facility in JEANNE WOODFORD, Director; JOHN MARSHALL, Warden, ROBERT L. AYERS, Warden; CALIFORNIA DEPT. OF CORRECTIONS MEDICAL DEPT.; ELISON WES, Parole Officer, Defendants. vs. MANUEL CABRERA ALEJANDRE, Inmate No. 09376-097, Plaintiff, Civil No. ORDER: 1) DISMISSING CIVIL ACTION FOR LACK OF PROPER VENUE PURSUANT TO 28 U.S.C. § 1391(b) AND 28 U.S.C. § 1406(a) AND 2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT [Doc. No. 2] 08-0093 JAH (JMA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

23 San Diego, California, has submitted a civil rights Complaint pursuant to 42 U.S.C. § 1983. 24 Plaintiff claims the former Director of the California Department of Corrections, the Marshal and 25 medical staff at California Men's Colony ("CMC") in San Luis Obispo, a Warden at San 26 Quentin State Prison and a state parole officer all denied him adequate medical care in violation 27 of the Eighth Amendment while he was in state custody in 1994 and 1995. See Compl. at 1-6. 28 Plaintiff seeks injunctive relief as well as general and punitive damages. Id. at 7.
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Case 3:08-cv-00093-JAH-JMA

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Plaintiff has also filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28

2 U.S.C. § 1915(a) [Doc. No. 2]. 3 4 5 I. Venue An initial review of this action reveals that Plaintiff's case lacks proper venue. Venue

6 may be raised by a court sua sponte where the defendant has not yet filed a responsive pleading 7 and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). 8 "A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except 9 as otherwise provided by law, be brought only in (1) a judicial district where any defendant 10 resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part 11 of the events or omissions giving rise to the claim occurred, or a substantial part of property that 12 is the subject of the action is situated, or (3) a judicial district in which any defendant may be 13 found, if there is no district in which the action may otherwise be brought." 28 U.S.C. 14 § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 15 834, 842 (9th Cir. 1986). "The district court of a district in which is filed a case laying venue 16 in the wrong division or district shall dismiss, or if it be in the interests of justice, transfer such 17 case to any district in or division in which it could have been brought." 28 U.S.C. § 1406(a). 18 Here, while Plaintiff is currently incarcerated in San Diego, he claims constitutional

19 violations based on events which are alleged to have occurred at CMC in San Luis Obispo and 20 San Quentin State Prisons. (Compl. at 1.) CMC is located in San Luis Obispo County; San 21 Quentin in Marin County. Moreover, no defendant is alleged to reside in the Southern District. 22 See 28 U.S.C. 84(d) ("The Southern District [of California] comprises the counties of Imperial 23 and San Diego."). Instead, Defendants are instead alleged to reside in Sacramento, San Luis 24 Obispo, Marin and Monterey. (Compl. at 2.) 25 Thus, venue may be proper in the Central District of California, Western Division,

26 pursuant to 28 U.S.C. § 84(c)(1), the Eastern District of California pursuant to 28 U.S.C. § 84(b), 27 or the Northern District of California pursuant to 28 U.S.C. § 84(a), but not in the Southern 28 / / /
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1 District of California.1 See 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. 2 3 4 II. Conclusion and Order Accordingly, IT IS HEREBY ORDERED that this case is DISMISSED without prejudice

5 for lack of proper venue pursuant to 28 U.S.C. §§ 1391(b) and 1406(a), and Plaintiff's Motion 6 to Proceed IFP [Doc. No. 2] is DENIED as moot. 7 8 9 10 DATED: January 30, 2008 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Plaintiff is cautioned, however, that should he elect to proceed with these claims by filing a Complaint in the Central, Eastern or Northern Districts of California, along with a Motion to Proceed IFP, his Complaint will be subject to the sua sponte screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and is likely to be dismissed insofar as the allegations on the face of his pleading are, at the very least, untimely. See Vaughan v. Grijalva, 927 F.2d 476, 479 (1991) (permitting dismissal under FED.R.CIV.P. 12(b)(6) for failure to state a claim when the "running of the limitations period is apparent on the face of the complaint."); See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) "not only permits but requires" the court to sua sponte dismiss an in forma pauperis complaint that fails to state a claim); see also Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (discussing sua sponte screening required by 28 U.S.C.§ 1915A(b)).
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The Clerk shall close the file. IT IS SO ORDERED.

JOHN A. HOUSTON United States District Judge

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