Opinion
Civil Action 21-933
07-20-2021
GREGORY KINNARD, Plaintiff, v. JOHN WETZEL, Defendant.
Hon. Marilyn J. Horan, United States District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that this case be transferred to the United States District Court for the Middle District of Pennsylvania forthwith.
II. REPORT
Gregory Kinnard (“Plaintiff”) is a state prisoner currently incarcerated at the State Correctional Institution at Forest (“SCI-Forest”), located in Marienville, Pennsylvania. Plaintiff initiated this matter by submitting a Complaint, ECF No. 1, which was received by the United States District Court for the Eastern District of Pennsylvania on June 22, 2021. The Complaint was not accompanied by the required filing fee, or a motion of leave to proceed in forma pauperis.
All of the alleged acts and omissions recited in the Complaint occurred at the State Correctional Institution at Coal Township (“SCI-Coal Township”), located in Coal Township, Pennsylvania. ECF No. 1 at 4 and 5. See also https://www.cor.pa.gov/Facilities/StatePrisons/ Pages/Coal-Twp.aspx (last visited July 20, 2021).
On July 19, 2021, under the belief that SCI-Coal Township was located in Marienville, Pennsylvania, United States District Judge Wendy Beetlestone ordered this case to be transferred to this Court. ECF No. 3 at 1 and n.1. However, SCI-Coal Township is not located in Marienville
- it is in Coal Township, which is in Northumberland County, and thus within the confines of the Middle District of Pennsylvania. 28 U.S.C. § 118(b). Thus, for the reasons articulated in footnote 1 of Judge Beetlestone's Order, venue is proper in the Middle District of Pennsylvania.
In the event that a case is filed in an incorrect district, district courts are permitted to transfer it to the district where venue would be proper. 28 U.S.C. § 1406(a). Non-precedential opinions from the United States Court of Appeals for the Third Circuit are somewhat divergent regarding the ability of district courts to transfer venue sua sponte. See, e.g., Decker v. Dyson, 165 F. App'x. 951, 954 n.3 (3d Cir. 2006) (“Under 28 U.S.C. § 1406(a), a district court, upon a motion or sua sponte, may transfer a case to a court of proper jurisdiction when such a transfer is in the interest of justice”). See also Lafferty v. St. Riel, 495 F.3d 72, 75 and n.3 (3d Cir. 2007), as amended (July 19, 2007), as amended (Nov. 23, 2007) (“The decision to transfer [sua sponte] under § 1406(a) thus turns on a question of fact, subject to the District Court's discretion. We do not disturb it here.”). Cf. Fiorani v. Chrysler Grp., 510 Fed.Appx. 109, 111 (3d Cir. 2013) (holding that a district court's sua sponte dismissal for lack of venue was erroneous because it should have considered transfer under § 1406(a)). But see Henderson v. Keisling, 341 Fed.Appx. 769 (3d Cir. 2009) (vacating district court's sua sponte transfer for improper venue). This Court has raised the issue of venue sua sponte. See, e.g., Nation of Islam v. Pennsylvania Dep't of Corr., No. CIV.A. 12-82, 2012 WL 529546, at *2 (W.D. Pa. Feb. 1, 2012), report and recommendation adopted, No. CIV.A. 12-82, 2012 WL 529238 (W.D. Pa. Feb. 17, 2012).
Having considered all of the factors governing venue, see, e.g., Calkins v. Dollarland, Inc., 117 F.Supp.2d 421, 428 (D.N.J. 2000) (setting forth the factors to consider for transferring venue in the context of 28 U.S.C. § 1404), and in the interests of justice, it is recommended that the Clerk should be directed to transfer this case forthwith to the Middle District of Pennsylvania, as venue is more proper therein.
III. CONCLUSION
For the reasons stated herein, it is respectfully recommended that this case be transferred to the United States District Court for the Middle District of Pennsylvania forthwith.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.