Opinion
Case No. 4:06-CV-1506 CDP.
October 31, 2006
ORDER AND MEMORANDUM
This matter is before the Court upon the application of Luis A. Vazquez for leave to commence this action without payment of the required filing fee. See U.S.C. § 1915(a). Upon consideration of the financial information provided with the application, the Court will grant applicant provisional leave to file this action.
The Complaint
Plaintiff, a prisoner currently confined at the Great Meadow Correctional Center, in Comstock, New York, seeks monetary and other relief pursuant to 42 U.S.C. § 1983. Plaintiff's claims arise from his confinement at the Medical Center for Federal Prisoners-Springfield ("MCFP-Springfield"). Named as defendants are Bill Hedrick (Warden, MCFP-Springfield); Christy Weaver (apparently a staff member employed at the MCFP-Springfield); John Doe #1 (apparently a transportation officer employed at the MCFP-Springfield); and John Doe #2 (a Lieutenant/corrections officer at the MCFP-Springfield). Plaintiff alleges that while he was incarcerated at the MCFP-Springfield, he was physically abused and sexually harassed by MCFP-Springfield staff members.
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 in Greene County, Missouri, which is located in the Western District of Missouri. See 28 U.S.C. § 105(b)(5). Also, all of the defendants 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. In cases involving 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 plaintiff is provisionally granted leave to proceed in forma pauperis, subject to modification by the Western District of Missouri upon transfer, and that the Clerk shall receive and file the complaint in this action without payment of the required filing fee. 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 shall accompany this order and memorandum.