Opinion
No. C 03-5062 MMC (PR), (Docket Nos. 2 3)
January 21, 2004
ORDER OF TRANSFER
This is an action filed by a pro se prisoner incarcerated in Salinas Valley State Prison. He names as defendants the California Department of Corrections, which is located in Sacramento, California, and Peace Officer Eller, an employee of North Kern State Prison in Kern County, California. His complaint arises out of actions or omissions at North Kern State Prison, where plaintiff was formerly housed.
Venue may be raised by the court sua sponte where the defendant has not yet filed a responsive pleading and the time for doing so has not run.See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). When jurisdiction is not founded solely on diversity, venue is proper in (1) the district in which any defendant resides, if all of the defendants reside in the same state; (2) the district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. See 28 U.S.C. § 1391 (b). When venue is improper, the district court has the discretion to either dismiss the case or transfer it "in the interest of justice." See 28 U.S.C. § 1406(a).
As noted, plaintiff's claims arise out of actions alleged to have been committed in Kern County, by defendants located in Kern and Sacramento Counties. Kern and Sacramento Counties are within the venue of the Eastern District of California. 28 U.S.C. § 84(b). Accordingly, in the interest of justice, this action is hereby TRANSFERRED to the United States District Court for the Eastern District of California. In light of this transfer, this Court will not address plaintiff's application to proceed in forma pauperis or his motion for appointment of counsel.
The Clerk is directed to transfer the action forthwith and to terminate all pending motions from this Court's docket.
This order terminates docket numbers 2 3.
IT IS SO ORDERED.