Opinion
CIVIL ACTION NO. 3:17-CV-02317
10-09-2018
WALTER BRADVOLD, Plaintiff, v. ALLENTOWN POLICE DEPARTMENT, Defendant.
(MARIANI, J.)
() REPORT AND RECOMMENDATION
Pending before this Court is Defendant Allentown Police Department's ("APD") motion to dismiss Plaintiff's complaint, or in the alternative to transfer venue, docketed by the Court on June 19, 2018. (Doc. 19). Plaintiff brings a claim under 42 U.S.C. § 1983, alleging that the APD "fired 35-50 shots at [him]" and "assaulted" him after he was handcuffed. (Doc. 1 at 2-3). The general venue requirements of Title 28 are applicable to a claim filed pursuant to 42 U.S.C. § 1983. Buhl v. Jeffes, 435 F. Supp. 1149, 1150 (M.D. Pa. 1977). Therefore, venue is proper in a district where the defendant resides or in which the claim arose. Id.
Defendant submits that the Middle District of Pennsylvania is an improper venue because Defendant, the Allentown Police Department, is located in Allentown, Lehigh County, Pennsylvania. Additionally, the incident giving rise to the present action took place in Lehigh County, Pennsylvania. Lehigh County is part of the Eastern District of Pennsylvania. Thus, defendant requests that this Court transfer this action to the United States District Court for the Eastern District of Pennsylvania.
Plaintiff is a prisoner at SCI-Dallas, located in Luzerne County, Pennsylvania. Plaintiff assents to the transfer of venue, urging the court to "uphold [his] complaint against the Allentown Police Department but to transfer [his] case... to the Eastern District of Pennsylvania." (Doc. 22).
28 U.S.C. § 1404(a) permits a change of venue between federal judicial districts. The statute provides that:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. 28 U.S.C. § 1404(a).
Per the plain language of the statute, a court may transfer venue to any district which all parties have consented. Here, both parties have urged the court to transfer venue to the Eastern District of Pennsylvania. Further, the case might have, and arguably should have, been brought in the Eastern District of Pennsylvania in the first place, because both the claim arose and the defendant is located in that district. 28 U.S.C. § 1391; Buhl, 435 F. Supp. at 1150. Therefore, it is in the interest of justice to transfer this complaint to the United States District Court for the Eastern District of Pennsylvania. See 28 U.S.C. § 1406(a).
Based on the foregoing, it is recommended that this case be transferred to the United States District Court for the Eastern District of Pennsylvania for further proceedings.
BY THE COURT: Dated: October 9, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge (RAMBO, J.)
(MEHALCHICK, M.J.) NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 9, 2018.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.Dated: October 9, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge