Opinion
4:22-4360-SAL-TER
03-22-2023
Mario Allan Montano, Plaintiff, v. Jerome W. Zimmer, Jr., Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a pro se litigant, proceeding in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1), and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court.
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se complaint filed in this case. This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999).
The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Federal district courts are vested with the inherent power to control and protect the administration of court proceedings. White v. Raymark Indus., Inc., 783 F.2d 1175, 1177 (4th Cir. 1986). The court has the power to consider sua sponte whether venue is proper. See Jensen v. Klayman, 115 Fed.Appx. 634, 635-36 (4th Cir. 2004)(per curiam). The statute, 28 U.S.C. § 1391(b), governs where the instant action may be brought:
(b) Venue in general.--A civil action may be brought in-
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.28 U.S.C. § 1391(b). The District of South Carolina does not satisfy any of these subsections insofar as Plaintiff's Complaint under review is concerned. In absence of venue, the court has authority sua sponte to transfer under either 28 U.S.C. § 1404(a) or § 1406(a), or both. See Jensen, 115 Fed.Appx. at 635-36; In re Carefirst of Md., Inc., 305 F.3d 253, 255-56 (4th Cir. 2002). The statute, 28 U.S.C. § 1406(a) provides: “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a).
Plaintiff alleges this is a § 1983 action based on violations of due process from state court orders regarding monetary sanctions and an injunction entered by Defendant, the Chief Clerk of the Michigan Court of Appeals in Michigan. (ECF No. 1). A portion of the relief Plaintiff seeks is for this court to set aside sanction orders from the state court in Michigan and require the filing of cases/void the injunction order of the court in Michigan. (ECF No. 1).
Here, the District of South Carolina is not a proper district for venue under 28 U.S.C. § 1391, as Plaintiff's Complaint alleges that Defendant is a resident of Michigan, and the events that gave rise to the allegations in this action occurred in the Michigan. (ECF No. 1). Because venue is improper by statute, Plaintiff's choice of venue is almost immaterial to the analysis. Under 28 U.S.C. § 1406(a), the interests of justice weigh heavily in favor of dismissal of this action and not transfer, as it appears the Rooker-Feldman doctrine is applicable here, as well as the named defendant, a Michigan judicial official in official capacity only, appears to have quasi-judicial immunity, subjecting the action to dismissal. See Marshall v. Walt Disney Co., 318 F.Supp.3d 957, 958(M.D. N.C. 2018)(collecting cases finding that the interest of justice does not require transfer where the action is likely subject to dismissal).
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
The undersigned recommends that this District is not the proper forum in which to adjudicate the claims raised in this Complaint, regarding activities that occurred in Michigan and against a Defendant located in Michigan.
RECOMMENDATION
Accordingly, it is recommended that this case be dismissed without prejudice and without service of process being issued.
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).