Opinion
CIV-21-812-PRW
08-30-2021
NICHOLAS THOMAS, Plaintiff, v. RYAN HAYDEN, ET AL., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state pre-trial detainee appearing pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (Doc. 1). United States District Judge Patrick R. Wyrick referred this matter to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B). (Doc. 4). Having conducted a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A(a), the undersigned recommends the Court dismiss this case without prejudice for lack of venue and deny any outstanding motions.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
I. Plaintiff's Claims
Plaintiff is currently confined in the Shawnee County Jail in Topeka, Kansas. (Doc. 1, at 4). Plaintiff names as Defendants Detective Ryan Hayden of the Topeka Police Department, Public Defender Maban Wright of Topeka, and “unknown prosecutor and Judge[].” (Id. at 4-6). In his Complaint, Plaintiff alleges that he “went to pre-trial for a closed case” because Defendant Hayden made a false police report and Defendant Wright “chose to overlook” issues with police conduct in the case. (Id. at 4). Plaintiff states the Defendants are employed in Topeka, Kansas, and does not provide any information suggesting the legal proceedings at issue occurred outside of Topeka. (Id. at 3-8).
II. Screening Requirement
Federal law mandates the screening of complaints filed by prisoners seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). On review, this Court must dismiss a complaint or any portion of it that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Id. § 1915A(b).
Additionally, complaints are screened to determine whether venue is proper “when the defense is obvious from the face of the complaint and no further factual record is required to be developed.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006). “A court may sua sponte cure jurisdictional and venue defects by transferring a suit under the federal transfer statutes, 28 U.S.C. §§ 1406(a) and 1631, when it is in the interests of justice.” Id. at 1222.
III. Analysis
“[T]he term ‘venue' refers to the geographic specification of the proper court or courts for the litigation of a civil action. . . .” 28 U.S.C. § 1390(a). The proper venue for Plaintiff's action is in “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located” or “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” Id. § 1391(b)(1), (2).
Based on the Complaint, it appears that every “part of the events or omissions giving rise to [Plaintiff's] claim[s] occurred” in Topeka, Kansas, located in Shawnee County. 28 U.S.C. § 1391(b)(2). Moreover, Plaintiff has indicated that the Defendants are officials or employees of Shawnee County. (Doc. 1, at 4-6). Shawnee County is located in the District of Kansas. 28 U.S.C. § 96. Thus, venue is proper in that court. 28 U.S.C. § 1391(b)(1), (2).
The undersigned judicially notices the location of Topeka, Kansas, within Shawnee County. See https://www.snco.us/; see also Fed. R. Evid. 201(b); United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) (“Geography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial. . . .”).
“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). The phrase “interest of justice . . . grant[s] the district court discretion in making a decision to transfer an action or instead to dismiss the action without prejudice.” Trujillo, 465 F.3d at 1222-23 (internal quotation marks omitted). The undersigned recommends dismissing this action without prejudice. Plaintiff's Complaint has only been pending in this court for a short period of time. (See Doc. 1 (filed August 16, 2021)). Further, Plaintiff has not paid the filing fee. Dismissal without prejudice would thus cause no undue prejudice to Plaintiff and would allow him to refile in the proper judicial district. See Klein v. King, 2010 WL 415293, at *1 (W.D. Okla. Jan. 28, 2010) (finding transfer would not further interest of justice when plaintiff had not paid a filing fee and would not “otherwise be prejudiced by dismissal”).
IV. Recommendation and Notice of Right to Object.
For the reasons stated, the undersigned recommends this matter be dismissed without prejudice to its refiling in the proper judicial district. Plaintiffs pending motion to proceed in forma pauperis (Doc. 2) should be denied as moot.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by September 20, 2021, in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2). Plaintiff is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.