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

Case 3:07-cv-02212-JLS-NLS

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Filed 12/04/2007

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

JOSE AYON, CDCR #P-22590, Plaintiff, vs. T. RICHARDSON, et al., Defendants.

Civil No.

07-2212 JLS (NLS)

ORDER TRANSFERRING CIVIL ACTION FOR LACK OF PROPER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. § 84(a), 28 U.S.C. § 1391(b) AND 28 U.S.C. § 1406(a)

Jose Ayon ("Plaintiff"), a prisoner currently incarcerated in Kern Valley State Prison

20 ("KVSP"), in Delano, California, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. 21 Plaintiff claims that a Sergeant and several unidentified correctional officials at Salinas Valley 22 State Prison ("SVSP") violated his Eighth Amendment rights while he was incarcerated there 23 from December 2000 through May 2005. 24 compensatory and punitive damages. (Id. at 9.) 25

(See Compl. at 1-5.)

Plaintiff seeks both

Plaintiff has not prepaid the $350 civil filing fee mandated by 28 U.S.C. § 1914(a);

26 instead has he filed a Motion to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a) 27 [Doc. No. 2]. 28 / / /

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07cv2212

Case 3:07-cv-02212-JLS-NLS

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I. LACK OF PROPER VENUE Upon initial review of the Complaint, the Court finds that Plaintiff's case lacks proper

4 venue. Venue may be raised by a court sua sponte where the defendant has not yet filed a 5 responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 6 1488 (9th Cir. 1986). "A civil action wherein jurisdiction is not founded solely on diversity of 7 citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district 8 where any defendant resides, if all defendants reside in the same State, (2) a judicial district in 9 which a substantial part of the events or omissions giving rise to the claim occurred, or a 10 substantial part of property that is the subject of the action is situated, or (3) a judicial district 11 in which any defendant may be found, if there is no district in which the action may otherwise 12 be brought."

28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v.

13 Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). "The district court of a district 14 in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in 15 the interests of justice, transfer such case to any district in or division in which it could have 16 been brought." 28 U.S.C. § 1406(a). 17 Here, Plaintiff is currently incarcerated at KVSP, but he claims constitutional violations 18 arising out of events which are alleged to have occurred at SVSP in Soledad, California, which 19 is located in Monterey County. (See Compl. at 1-2.) Moreover, all Defendants are alleged to 20 21 22 23 24 25 26 27 28

work at SVSP (and presumably reside) in Monterey County; none is alleged to reside in the Southern District, which is comprised only of San Diego or Imperial Counties. (Id.) See also 28 U.S.C. § 84(a) ("The Northern District [of California] comprises the count[y] of ... Monterey...."); 28 U.S.C. 84(d) ("The Southern District [of California] comprises the counties of Imperial and San Diego."). Therefore, venue is proper in the Northern District of California pursuant to 28 U.S.C. § 84(a), but not in the Southern District of California. See 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. ///
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07cv2212

Case 3:07-cv-02212-JLS-NLS

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II. CONCLUSION AND ORDER Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall transfer this

4 case for lack of proper venue, in the interests of justice and for the convenience of all parties, to 5 the docket of the United States District Court for the Northern District of California pursuant to 6 28 U.S.C. § 84(a), 28 U.S.C. § 1391(b) and 28 U.S.C. § 1406(a).1 7 8 9 DATED: December 4, 2007 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Because the Court finds transfer appropriate, it defers ruling on Plaintiff's Motion to Proceed IFP [Doc. No. 2] to the Northern 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). See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (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); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (sua sponte screening provisions of 28 U.S.C. § 1915A(b)(1) & (2) require court to dismiss complaints filed by prisoners which are frivolous, malicious, fail to state a claim or seeking damages from immune defendants).
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Honorable Janis L. Sammartino United States District Judge

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07cv2212