Opinion
Case No. 4:05-CV-1676 MLM.
October 31, 2005
ORDER AND MEMORANDUM
This matter is before the Court upon the application of Joseph L. Simmons for leave to commence this action without payment of the required filing fee. See U.S.C. § 1915(a). Upon consideration of the financial information provided with the application, the Court will grant plaintiff provisional leave to file this action.
The Complaint
Plaintiff, a prisoner currently confined at the Western Missouri Correctional Center ("WMCC"), seeks monetary and injunctive relief pursuant to 42 U.S.C. § 1983. Named as defendants are the "MDOC-Records Office," the "MBPP" (Missouri Board of Probation and Parole), the State of Missouri, Marcie Ireland (a WMCC staff member), and Robin Thorne (a WMCC staff member). Plaintiff claims that he has a liberty interest in parole and that defendants have deprived him of his liberty interest without due process of law.
Discussion
Pursuant to 28 U.S.C. § 1391(b), venue for this action is proper where (i) any defendant resides, if all the defendants reside in the same state; (ii) a substantial part of the events or omissions giving rise to the claim occurred; or (iii) where any defendant may be found, if there is no district in which the action may otherwise be brought. All of the events described in the complaint occurred at WMCC, which is located in the Western District of Missouri. See 28 U.S.C. § 105(b)(3). Also, defendants can be found in the Western District of Missouri. Therefore, venue is not proper in the Eastern District of Missouri.
Pursuant to 28 U.S.C. § 1406(a), the District Court in which is filed a case laying venue in the wrong district may dismiss the case or, in the exercise of its discretion and in the interest of justice, transfer the petition to any District Court in which such action could have been brought. In cases involving a plaintiff who is proceeding pro se and in forma pauperis, especially a prisoner, the usual practice is to transfer the case to the proper district. Therefore, this action shall be transferred to the United States District Court for the Western District of Missouri. Because venue is not proper in the Eastern District, no determination has been made as to whether the complaint is frivolous or fails to state a claim, or both, pursuant to 28 U.S.C. § 1915(e)(2)(A)(B).
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is PROVISIONALLY GRANTED, subject to modification by the Western District of Missouri upon transfer.
IT IS FURTHER ORDERED that the Clerk of Court shall not issue process or cause process to issue upon the complaint, because this action will be transferred to the Western District of Missouri.
An appropriate order of transfer shall accompany this order and memorandum.