Opinion
CIV-21-298-J
05-04-2021
ORIYOMI ALOBA, Plaintiff, v. CAMDEN PROPERTY, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Oriyomi Aloba (Plaintiff), a pro se federal prisoner housed at the Federal Correctional Institution in El Reno, Oklahoma has filed a “civil right violation complaint” against Defendant Camden Property. Doc. 1. He alleges an unidentified person or persons from the Camden Property apartment complex, located in Houston, Texas where Plaintiff previously lived, wrongfully evicted him from his apartment after “federal agency” officials from California and Texas and officers from the Houston Police Department and the Houston Sheriff's Department “invaded” his apartment to seize his property. Doc. 1, at 1.
The Court construes Plaintiff's pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Citations to a court document are to its electronic case filing designation and pagination. Quotations are verbatim unless indicated.
Plaintiff names “Camden Property” as a Defendant. He does not name or attempt to sue in this action the unidentified agents or officers who entered his apartment while Plaintiff was absent from it. After filing his initial complaint, Plaintiff moved to “replace” his “initial complaint” and add as a Defendant the “District Clerk at the Harris County District Court and an employee of Attorney General of Texas, ” “Marilyn Buggess.” See Docs. 9-10.Plaintiff has not paid the filing fee and has moved to proceed in forma pauperis. See Docs. 6, 8, 11. Plaintiff asserts this Court has diversity and federal question jurisdiction over his case because he resides in federal prison in Oklahoma and because his federal constitutional rights were violated. Doc. 1, at 3; Doc. 10, at 2.
Plaintiff also refers to this person as “Marilyn Burgess.” See Doc. 1, at 3.
party may amend its pleading once as a matter of course” without the Court's leave. See Fed.R.Civ.P. 15(a)(1). Before a defendant is served or within twenty-one days after service, “[a]
United States District Judge Bernard M. Jones has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 4. Following mandatory screening of Plaintiff's complaint, the undersigned recommends the Court dismiss this case without prejudice for lack of venue and deny all outstanding motions.
I. Plaintiff's claims.
Plaintiff alleges federal and Texas officers “invaded” his unoccupied apartment on November 15, 2017 and took “evidence and his properties.” Doc. 1, at 1. Plaintiff states he returned on January 29 to the apartment Defendant Camden Property leased to him, but he could not gain access. Id. When Plaintiff went to the leasing office to ask why he could not get into his apartment, Plaintiff claims “the defendant simply responded that they had evicted me the same day police came to my apartment.” Id. Plaintiff claims Defendant Camden Property told him they had contacted Plaintiff's brother about obtaining Plaintiff's “leftover properties after the police had search and obtain [his] properties.” Id.
Based on these facts, Plaintiff alleges Defendant Camden Property violated Texas law and his Texas and federal constitutional rights to due process by failing to file an eviction notice and unlawfully giving access to his property to “unknown gunmen.” Id. at 1-2. He claims Defendant Camden Property deprived him of his property, displaced him and his mother, reported a “false debit” to his name which resulted in housing agencies denying him a rental, and defamed his identity by labeling him a criminal. Id. at 2.
Plaintiff states he filed a civil complaint against Defendant Camden Property in the District Court of Harris County, Texas but that suit is languishing due to actions by District Court Clerk Marilynn Burgess. Id. at 3 & Ex. 2. He claims his complaint has been “ghost[ed]” and the state court has “refused to hear” it. Id. In his amendment to his complaint, Plaintiff adds his state case has been pending for ten months but Ms. Burgess has “purposefully refused to advance his civil actions against the defendant in an attempt to maintain a malicious prosecution.” Doc. 10, at 1-2.
Plaintiff asks this Court to “remove” his state case to this Court and to declare “that the defendants ha[ve] violated his constitutional right.” Doc. 1, at 4; Doc. 10, at 3. He also seeks $380,000 in compensatory damages and $1,500,000 in punitive damages. Doc. 10, at 3.
According to Plaintiff's allegations, Defendant Camden Property is a private entity located in Houston, Harris County, Texas, and Ms. Burgess is a public officer employed at the Harris County, Texas District Court. Doc. 1, at 1 & Ex. 2; Doc. 10, at 1.
II. Screening.
The Court is obligated to screen Plaintiff's complaint and to dismiss it, or any portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2); 1915A. One aspect of screening is reviewing 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) (internal quotation marks omitted). The Court “may dismiss under § 1915 only if it is clear that the plaintiff can allege no set of facts to support . . . venue.” Id. (internal citation and alterations omitted). This Court, “acting on its own motion, may [also] raise the issue of whether a change of venue would be in the interest of justice.” Love's Travel Stops & Country Stores, Inc. v. Oakview Constr., Inc., No. CIV-10-235-D, 2010 WL 4811450, at *6 (W.D. Okla. Nov. 19, 2010). See also Trujillo, 465 F.3d at 1222 (“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.”); Pierce v. Shorty Small's of Branson, 137 F.3d 1190, 1191 (10th Cir. 1998) (“[T]he decision of whether to dismiss or transfer [under 28 U.S.C. § 1406(a)] lies within the sound discretion of the district court.”).
III. Discussion.
“[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 Plaintiff bears the burden of proving this is the proper venue for his action. See, e.g., Pierce, 137 F.3d at 1192.
The Court construes Plaintiff's action as one seeking damages for civil rights violations under 42 U.S.C. § 1983 against a private business entity and a state official. It is apparent from the pleadings, however, that neither of these parties reside in this judicial district and none of the events giving rise to this action occurred here.
To state a claim under § 1983, Plaintiff must allege the violation of a right secured by the Constitution or laws of the United States and must show a person acting under color of state law committed the alleged violation. West v. Atkins, 487 U.S. 42, 48 (1988).
See Doc. 1, at 3 (“This Court has jurisdiction to hear this case because a federal law violation and my federal constitutional violation is involved. This Court has jurisdiction or may [exercise] right to hear the [illegible] of state right violation in this matter due deprivation of right to be hea[r]d.”).
Section “1983 does not, by itself, confer nationwide service of process or jurisdiction upon federal district courts to adjudicate claims.” Trujillo, 465 F.3d at 1217. And, under the general venue statute, which governs § 1983 cases, the complaint may be brought only
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 (3) if there is no district in which an action may otherwise be brought as provided in this section, and 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). See Anaeme v. Florida, 169 Fed.Appx. 524, 527 (10th Cir. 2006) (holding the plaintiff's claims of constitutional violations made under 42 U.S.C. §§ 1981, 1983, and 1985 were governed by the general venue statute, 28 U.S.C. § 1391(b)).
Even if the undersigned construed this case as arising under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the general venue statute still applies. See, e.g., Stafford v. Briggs, 444 U.S. 527, 544-45 (1980) (holding suits for money damages against federal officers individually “must be brought in the judicial district where all defendants reside, or in which the claim arose” (internal quotation marks omitted)).
A. Venue does not lie in the Western District of Oklahoma.
Under the general venue statute, venue does not lie in this district. See e.g., Azubuko v. Irish, 442 Fed.Appx. 374, 375 (10th Cir. 2011) (noting venue is “distinct from jurisdiction” and holding that, even if the district court possessed jurisdiction, the action was properly dismissed for improper venue). First, Plaintiff's own allegations confirm that he is attempting to sue a private business entity located in Texas and a Texas state official who works and/or resides in Houston, Texas. Doc. 1, at 1, 3 & Ex. 2; Doc. 10, at 1-2. Second, Plaintiff alleges the alleged events giving rise to his claims occurred, not in this district or even in Oklahoma, but in Houston, Harris County, Texas, within the territorial boundaries of the Southern District of Texas, Houston Division. See 28 U.S.C. § 124(b)(2); Doc. 1, at 1 & Ex. 2; Doc. 10, at 1-3. Third, there is a district in which the “action may otherwise be brought”—the Southern District of Texas—and correspondingly, no indication in the record that either of the Defendants are subject to this Court's personal jurisdiction.
Because the two Defendants reside in the Southern District of Texas and the events giving rise to Plaintiff's claims occurred there, venue properly lies in that district rather than this one. See Anaeme, 169 Fed.Appx. at 527 (affirming district court's dismissal of the plaintiff's civil rights action for improper venue after determining none of the defendants were residents of New Mexico, that none of the alleged acts or incidents had occurred in New Mexico, and that there was another district in which the action may otherwise have been brought).
B. This case should be dismissed without prejudice rather than transferred to the Southern District of Texas.
“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 undersigned recommends dismissing this action without prejudice rather than transferring it to the Southern District of Texas. The matter has been pending in this Court for only a short period of time and 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.
Further, an initial inquiry into the merits of the complaint reveals Plaintiff fails to state a viable claim. See, e.g., Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000) (“[A] court is authorized to consider the consequences of a transfer by taking ‘a peek at the merits' to avoid raising false hopes and wasting judicial resources that would result from transferring a case which is clearly doomed.”). For purposes of a § 1983 or Bivens claim, Plaintiff does not allege Defendant Camden Property is a state or federal actor. And his request that his Court “remove” his state case to this Court is not based on any viable authority. See, e.g., 28 U.S.C. § 1441(a) (“Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”). While Plaintiff does allege that Ms. Burgess is a state actor, his claim that she has “ghost[ed]” his case because it has been pending for ten months is insufficient to state a claim for relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (stating that to avoid a dismissal for failure to state a claim, a complaint must set out factual allegations that “raise a right to relief above the speculative level”). Accordingly, this case should be dismissed without prejudice to its refiling in the proper judicial district. See 28 U.S.C. § 1406(a).
IV. Recommendation and notice of right to object.
The undersigned recommends this case be dismissed without prejudice for improper venue. Plaintiff's pending motions to proceed in forma pauperis and proceed on a payment plan, Docs. 6, 8, 11, and his motion to add more defendants and seek additional damages, Doc. 9, should be denied as moot.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before May 25, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED.