Opinion
Civ. No. 98-1893, Section "I" (4).
January 14, 2000.
ORDER AND REASONS
Plaintiff Ricky Nelson filed this lawsuit under 28 U.S.C. § 1983 alleging that the defendants violated his civil rights by refusing to credit him for time served and by holding him in jail for ten months beyond the duration of his sentence. The seven defendants, sued in their individual capacities, are the Secretary of the Louisiana Department of Corrections (DOC), and various employees of the DOC who are alleged to have some involvement in the administrative actions leading to his wrongful incarceration.
At the time Nelson filed this suit, he was incarcerated in the Dixon Correctional Institute in Jackson, Louisiana. After his contention that the DOC miscalculated his sentence was upheld by the state criminal court, he was released from incarceration.
The defendants in this case filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue or alternatively to transfer pursuant to 28 U.S.C. § 1406 (a) to a court of proper venue, or alternatively, to transfer under 28 U.S.C. § 1404 on the grounds of forum non conveniens.
The court addresses here the objection of the plaintiff to the Magistrate Judge's recommendation that the defendants' motion to transfer under § 1406 be granted based upon improper venue in this district. The Magistrate Judge based her decision on the fact that the majority of the defendants reside within the geographical jurisdiction of the Middle District, and her determination that the interests of justice support the transfer.
Section 1983 contains no specific venue provision, therefore, venue is determined under 28 U.S.C. § 1391, the general venue statute. Section 1391 provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, . . ., or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
Section 1406(a) allows transfer of a case from a district in which venue is wrong to another district or division in which venue is proper, if such transfer is in the interest of justice.
None of the defendants resides in the Eastern District and none of the defendants' actions occurred in the Eastern District. Plaintiff argues that venue is proper because a "substantial part of the events giving rise to [his] claim" occurred in the Eastern District. It is undisputed that between six and seven months of the wrongful incarceration occurred at Washington Correctional Institute, which is located in the Eastern District of Louisiana. The court finds that this wrongful incarceration constitutes a "substantial event giving rise to" Nelson claim. See McNiece v. Jindal, 1997 WL 767665, at *2 (E.D. La. 1997) (finding venue in the Eastern District proper where the decisions and policies of the Secretary of the Louisiana Department of Health and Hospitals resulted in the plaintiff's eviction from a nursing home located in the Eastern District of Louisiana); Globe Glass Mirror Co. v. Brown, 888 F. Supp. 768 (E.D. La. 1995) (finding venue in the Eastern District of Louisiana proper where the Louisiana Insurance Commissioner's actions in Baton Rouge affected the business of plaintiff's wholly-owned subsidiary in the Eastern District of Louisiana).
The court further finds that the defendants have failed to show that this is an inconvenient forum. Costs of litigation in this forum are not as burdensome to the defendants as litigation in the Middle or Western Districts would be to the plaintiff. Plaintiff's court-appointed counsel, the Loyola Law Clinic, is an educational institution, which limits its services to the New Orleans' metropolitan area and does not allocate funds for travel expenses. In contrast, the DOC maintains prisons in the Eastern District of Louisiana. The court's determination in McNiece that the Secretary of the Louisiana Department of Health and Hospitals "should be apprised that his decisions and their enforcement have effects throughout the State of Louisiana, not just in the Middle District where his office is located," see 1997 WL 767665 at *2, applies with equal force as to the defendants here.
Finally, the court notes that Secretary Stalder waived his right to challenge venue when he brought a prior Rule 12(b)(6) motion and failed to include a challenge to the court's venue.See Fed.R.Civ.P. 12(h)(1).
Accordingly,
IT IS ORDERED that plaintiff's objections to the Magistrate Judge's Report and Recommendation are GRANTED and the Recommendation of the Magistrate Judge that this matter be transferred to the United States Court for the Middle District of Louisiana is OVERRULED.
New Orleans, Louisiana this 13th day of January, 2000.
cc: Magistrate Judge Roby