Opinion
Case No. CIV-19-274-R
03-27-2019
MARCUS CARGLE, Plaintiff, v. JAMES YATES, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his federal constitutional rights while imprisoned at the Davis Correctional Facility (DCF). This matter has been referred by United States District Court Judge David L. Russel for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons set forth below, it is recommended that the action be transferred to the United States District Court for the Eastern District of Oklahoma.
DISCUSSION
The Court is obligated to review complaints filed by prisoners who seek redress from governmental entities or officers or employees of a governmental entity. See 28 U.S.C. § 1915A(a). As part of this obligation, the Court may consider whether venue is proper sua sponte "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) (citation omitted); see also Lewis v. Ctr. Mkt., 378 F. App'x 780, 787 (10th Cir. 2010) (unpublished) (holding that a district court may consider venue on a § 1915 screening); Johnson v. Christopher, 233 F. App'x 852, 853-54 (10th Cir. 2007) (unpublished) (acknowledging district court has discretion to dismiss or transfer for improper venue).
Venue is proper in a civil action 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 a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.28 U.S.C. § 1391. Plaintiff alleges his constitutional rights were violated at DCF and he names DCF prison officials as Defendants. DCF is located in Holdenville, Hughes County, Oklahoma, and Hughes County is located within the territorial jurisdiction of the United States District Court for the Eastern District of Oklahoma. See 28 U.S.C. § 116(b). Accordingly, because the events or omissions giving rise to the claims occurred in the Eastern District of Oklahoma, venue is proper in that Court.
Although this matter is subject to dismissal, a district court may cure a defect in venue by transferring the case to "any district or division in which it could have been brought" if transfer is "in the interest of justice." 28 U.S.C. § 1406(a). In this instance, transfer of this case to cure the jurisdictional defect is in the interest of justice. As such, it is recommended that this Court transfer this case to the United States District Court for the Eastern District of Oklahoma.
RECOMMENDATION
It is recommended that this action, with all pleadings filed in this Court, be transferred to the United States District Court for the Eastern District of Oklahoma pursuant to 28 U.S.C. § 1406(a).
NOTICE OF RIGHT TO OBJECT
Plaintiff is advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of this District Court by April 17, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
The Clerk of this Court is directed to electronically forward a copy of this Report and Recommendation to the Attorney General for the State of Oklahoma on behalf of the Defendants at the following address: fhc.docket@oag.state.ok.us.
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 27th day of March, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE