Folley v. Gorman

• Court: District Court, S.D. California
• Decided: January 14, 2022
• Docket: 3:21-cv-01887
• Status: Unknown

Opinion

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4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} DEREK FOLLEY, Case No.: 3:21-cv-01887-JO-MSB #A-787-384, Plaintifr | ORDER TRANSFERRING CIVIL 13 "| ACTION FOR LACK OF PROPER 14 VS. VENUE TO THE SOUTHERN DISTRICT OF OHIO, WESTERN 15 DIVISION PURSUANT TO 28 U.S.C. 6 HON. BARBARA P. ee ve § 115(\(1),28 U.S.C. § 1391(b), S.C. § 1406(a) 17 18 19 Plaintiff Derek Folley, proceeding pro se and currently incarcerated at the Graftor 20 || Correctional Institute in Ohio, has filed this civil rights action pursuant to 42 U.S.C. § 1983 21 ||claiming he has been falsely imprisoned. (See ECF No. 1, “Compl.” at 1, 4, 27, 28. 22 Plaintiff has not prepaid the $402 civil and administrative filing fee required by 28 U.S.C 23 ||§ 1914(a), but instead seeks leave to proceed in forma pauperis pursuant to 28 U.S.C 24 || § 1915(a)(1). (See ECF No. 2.) However, the Court finds that the Southern District o 25 ||California is not the proper venue for Plaintiff's case, and therefore TRANSFERS thi: 26 || civil action to the U.S. District Court for the Southern District of Ohio. 27 28 | ant □□□□□ 1A □□□

1 Venue may be raised by the Court sua sponte where the defendant has not yet filec 2 ||a responsive pleading and the time for doing so has not run. See Costlow v. Weeks, 79( 3 || F.2d 1486, 1488 (9th Cir. 1986). 4 “A civil action may be brought in — (1) a judicial district in which any defendan 5 resides, if all defendants are residents of the State in which the district is located; [or] (2) 6 judicial district in which a substantial part of the events or omissions giving rise to ths 7 |{claim occurred, or a substantial part of property that is the subject of the action i: 8 || situated[.]” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v 9 ||Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of □ 10 || district in which is filed a case laying venue in the wrong division or district shall dismiss 11 ifit be in the interests of justice, transfer such case to any district or division in which 1 12 ||could have been brought.” 28 U.S.C. § 1406(a). 13 Plaintiff claims that Judge Barbara P. Gorman, prosecutors, his appointed attorneys 14 ||the City of Dayton Police Department, detectives, clinical psychologists, and severa 15 || forensic psychiatry centers, all alleged to reside or to be located in Dayton, Ohio, □□□□□□□ 16 |;his Sixth and Fourteenth Amendment during the course of his criminal prosecution an: 17 ||competency proceedings in the Montgomery County Ohio Court of Common Pleas. (Se 18 ||Compl. at 2-4, 7-13.) Montgomery County is located in the Western Division of th 19 Southern District of Ohio. See 28 U.S.C. § 115(b)(1). Plaintiff contends his rights wer 20 || violated in Montgomery County, none of the events or omissions giving rise to Plaintiff’ 21 ||claims are alleged to have occurred in either San Diego or Imperial County, and □□ 22 ||Defendant is alleged to reside here. (See Compl. at 7-10). See 28 U.S.C. § 84(d) (“Thi 23 |;Southern District of California comprises the counties of Imperial and San Diego.”) 24 || Therefore, the Court finds venue is proper in the Southern District of Ohio, Westen 25 || Division, pursuant to 28 U.S.C. § 115(b)(1), but not in the Southern District of Californi 26 |}pursuant to 28 U.S.C. § 84(d). See 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488. 27 |I/// 28 2 2.901 ny □□□□□ □□ □□□

1 Accordingly, the Clerk of the Court is ORDERED to transfer this civil action fo 2 of proper venue, in the interests of justice, and for the convenience of all parties, t 3 ||the docket of the United States District Court for the Southern District of Ohio, Westertr 4 || Division, pursuant to 28 U.S.C. § 115(b)(1), 28 U.S.C. § 1391(b), and 28 U.S.C. § 1406(a). 5 IT IS SO ORDERED 6 ||Dated: | fel 26292 7 A sook Ohta g United States District Judge 9 10 □ 11 12 13 14 15 16 17 □ 18 19 20 21 || . 22 Because the Court finds transfer appropriate, it defers consideration of Plaintiff's Motio1 23 ||to Proceed IFP (ECF No. 2), as well as all his other pending miscellaneous motions an requests, see e.g., ECF Nos. 3, 7, 8, 10, 11, 16—26, 47, to the Southern District of Ohio anc expresses no opinion as to whether Plaintiff's pleading survives the sua sponte screenin; 25 ||required by 28 U.S.C. § 1915A(b). See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 64. 06 (9th Cir. 2018) (“For certain prisoner civil rights litigation, 28 U.S.C. § 1915A(a) require pre-answer screening of the complaint so that ‘the targets of frivolous or malicious suit 27 ||need not bear the expense of responding.’” (citations omitted)). Plaintiff is directed t submit any future filings to the Southern District of Ohio and to affix that Court’s cas number to his submissions for consideration by the judge assigned upon transfer.