Schubert
v.
Tulsa Cnty. Sheriff

This case is not covered by Casetext's citator
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMAAug 7, 2018
Case No. CIV-18-745-SLP (W.D. Okla. Aug. 7, 2018)

Case No. CIV-18-745-SLP

08-07-2018

FREDRICK ALLEN SCHUBERT JR., Plaintiff, v. TULSA COUNTY SHERIFF, Defendant.


REPORT AND RECOMMENDATION

Plaintiff, a pretrial detainee appearing pro se, brings this action pursuant to 42 U.S.C. § 1983. The matter has been referred by United States District Judge Scott L. Palk 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 dismissed.

I. Plaintiff's Claims

Plaintiff's sole claim is for "deflamation [sic] of character" against the Tulsa County Sheriff in his individual capacity. Compl. [Doc. No. 1], 7. Plaintiff asserts that "on or about July 10, 2018 Tulsa County Sherrif's [sic] arrested me on a bogus charge which led to the termination of my empoyment [sic] due to the arrest & incarseration [sic]." Id. at 8. Plaintiff seeks compensation for his lost time and wages. Id.

II. Analysis

The Court is obligated to review complaints filed by prisoners who seek redress from governmental entities or officers or employees of a governmental entity. 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 Mkt., 378 F. App'x 780, 787 (10th Cir. 2010) (unpublished) (holding that a district court may consider venue on a § 1915 screening); Johnson v. Christopher, 233 F. App'x 852, 853-54 (10th Cir. 2007) (unpublished) (acknowledging district court has discretion to dismiss or transfer for improper venue).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. The only defendant listed in this action is the Tulsa County Sheriff, who resides in Tulsa County, Oklahoma. See Okla. Stat. tit. 19, § 510 (county sheriff must be a registered voter within the county from which he seeks election). Tulsa County is within the territorial boundaries of the United States District Court for the Northern District of Oklahoma. See 28 U.S.C. § 116(a). Thus, the first subsection does not apply. Therefore, venue is proper in this Court only if a substantial part of the events or omissions giving rise to the claims occurred within its boundaries. It is clear that the events or omissions giving rise to Plaintiff's claims occurred outside of the territorial boundaries of this Court. Plaintiff contends he was arrested by the "Tulsa County Sherrif's [sic]," and the Court takes judicial notice of Plaintiff's pending criminal case in Tulsa County District Court. See State v. Schubert, CF-2017-2339. Thus, venue is not proper in this Court.

The Court is mindful that it 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 matter, however, transfer is not in the interest of justice because it appears Plaintiff failed to state a Section 1983 claim. The Court notes that "defamation, by itself, is . . . not a constitutional deprivation." Siegert v. Gilley, 500 U.S. 226, 233 (1991); see also Waters v. City of Lawton, No. CIV-04-1761-L, 2006 WL 2773233, at *4 (W.D. Okla. Sept. 25, 2006) ("[P]laintiff has no § 1983 cause of action for false light/defamation."). As a result, the Court should decline to transfer this case to the United States District Court for the Northern District of Oklahoma and instead dismiss this action without prejudice because venue is not proper.

To the extent Plaintiff could state a state-law claim of defamation, a federal court would not have jurisdiction to hear that claim standing alone because it does not pose a federal question and the parties are not diverse.

Even if the Court liberally construed Plaintiff's claim as one of false arrest or malicious prosecution based on his innocence of the charges (i.e., his claim that his arrest stemmed from a "bogus charge"), such a claim appears to be barred as premature by Heck v. Humphrey, 512 U.S. 477 (1994), and Younger v. Harris, 401 U.S. 37 (1971), as Plaintiff's criminal charges remain pending. --------

RECOMMENDATION

It is recommended that this action be dismissed without prejudice. It is further recommended that Plaintiff's Pauper's Affidavit [Doc. No. 3], interpreted by the Court as a Motion for Leave to Proceed In Forma Pauperis, be denied as moot.

NOTICE OF RIGHT TO OBJECT

The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by August 28, 2018. 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. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).

STATUS OF REFERRAL

This Report and Recommendation terminates the referral by the District Judge in this matter.

ENTERED this 7th day of August, 2018.

/s/_________


BERNARD M. JONES


UNITED STATES MAGISTRATE JUDGE