Opinion
Case No. 4:06-CV-1093 CEJ.
August 14, 2006
ORDER AND MEMORANDUM
This matter is before the Court upon the applications of Brian Pearce and Ronald Stanley for leave to commence this action without payment of the required filing fee. See 28 U.S.C. § 1915(a). Upon consideration of the financial information provided with the applications, the Court will grant applicants provisional leave to file this action.
The Complaint
Plaintiffs, prisoners currently confined at the Tipton Correctional Center ("TCC"), seek monetary and declaratory relief pursuant to 42 U.S.C. § 1983. Ken Shehorn (a TCC corrections officer), Jill McGuire (TCC superintendent) and the Missouri Department of Corrections are named as defendants. Plaintiffs allege that defendant Shehorn was derelict in his duties and unprofessional in his conduct; that defendant McGuire failed and refused to discipline defendant Shehorn; and that defendant Missouri Department of Corrections, through its policies and training, set the tone for its employees' undesirable conduct.
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 the TCC. The TCC is located in Moniteau County, Missouri, which is within the Western District of Missouri. See 28 U.S.C. § 105(b)(2). Also, defendants Shehorn and McGuire, as TCC employees, can be found in the Western District of Missouri. Therefore, venue is not proper in this district.
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. When dealing with 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 complaint shall be transferred to the United States District Court for the Western District of Missouri. Because venue is not proper in this 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 plaintiffs' motions for leave to proceed in forma pauperis [Docs. #1 and #3] are PROVISIONALLY GRANTED. Because this case is to be transferred to the United States District Court for the Western District of Missouri, such leave to proceed in forma pauperis is subject to modification by the Western District upon transfer.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because it is being transferred to the Western District of Missouri.
An appropriate order of transfer shall accompany this order and memorandum.