Opinion
CIV. 4:21-CV-826
06-23-2021
KEITH VERNON DAVIS, Plaintiff, v. JOHN WETZEL, et al., Defendants.
Brann, Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Statement of Facts and of the Case
This case is a pro se prisoner civil rights action brought by Keith Vernon Davis, a state prisoner housed at the State Correctional Institution (SCI) Houtzdale. Davis' 65-page pro se complaint names ten defendants, eight of whom are located at SCI Houtzdale, and the matters complained of by the plaintiff took place at SCI Houtzdale. While the averments in Davis' complaint describe SCI Houtzdale as a correctional facility in Centre County Pennsylvania, this is incorrect. Rather, we take judicial notice of the fact that the Department of Corrections identifies SCI Houtzdale as a facility located in Clearfield County, Pennsylvania. Because the matters complained of by the plaintiff occurred in Clearfield County, which is located within the venue of the United States District Court for the Western District of Pennsylvania, 28 U.S.C. §118, for the reasons set forth below, it is recommended that this case be transferred to that court for further proceedings.
II. Discussion
This case is a federal civil action. In such cases, 28 U.S.C. § 1391(b) defines the proper venue and provides that an action should:
[B]e 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 a substantial part of property that is the subject of the action is situated, 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.28 U.S.C. § 1391(b).
In this case, with respect to Davis' claims it is evident on the face of this complaint that “a substantial part of the events or omissions giving rise to the claim” took place in Clearfield County and within the venue of the United States District Court for the Western District of Pennsylvania. 28 U.S.C. §118. Moreover, it appears that most of the defendants may be found at SCI Houtzdale in Clearfield County. Therefore, this case currently appears to fall within the venue of the United States District Court for the Western District of Pennsylvania.
This court is permitted sua sponte to raise the issue of an apparent lack of venue, provided the court gives the plaintiff notice of its concerns and an opportunity to be heard on the issue. See e.g., Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996) (“[A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the issue”); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). In this case, through the filing of this Report and Recommendation, we are placing the plaintiff on notice that this complaint does not appear to allege facts that would currently give rise to venue in this court.
When it appears that a case is being pursued in the wrong venue, there are two potential remedies available to the court. First, the court may dismiss the action for lack of venue pursuant to 28 U.S.C. § 1406 and Rule 12(b)(3) of the Federal Rules of Civil Procedure. However, the court may also, in the interests of justice, provide another form of relief, one which ensures that venue is proper without prejudicing the rights of any plaintiffs. Under 28 U.S.C. § 1406:
The district court of a district in which is filed a case laying venue in the wrong . . . district shall dismiss, or if it be in the interest of justice, transfer such case to any district . . . in which it could have been brought.28 U.S.C. § 1406(a) (emphasis added).
In addition, we note that, even if venue was still somehow appropriate here, it is clear that the preferred venue for litigation of this particular case would now be the United States District Court for the Western District of Pennsylvania. In such instances, 28 U.S.C. § 1404(a) also expressly 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 ....” 28 U.S.C. § 1404 (a).
In this case, since venue over this matter appears to lie in the United States District Court for the Western District of Pennsylvania, in order to protect the plaintiff's rights as a pro se litigant, we will recommend that this case be transferred to the United States District Court for the Western District of Pennsylvania for further proceedings. Such a transfer order avoids any prejudice to the plaintiff that might flow from a dismissal of this action on venue grounds. See Burnett v. New York Cent. R. Co., 380 U.S. 424, 430 (1965). Moreover, addressing the current lack of venue in this fashion would not constitute a ruling on the merits of the plaintiff's claims, thus assuring that the plaintiff can have this case heard on its merits in the proper forum. See, 18 Wright, Miller & Cooper Federal Practice and Procedure, § 4436, at 338 (stating that “a dismissal for lack of jurisdiction or improper venue does not operate as an adjudication upon the merits”) (footnote omitted).
Finally, we note that:
A motion to transfer venue ... involves a non-dispositive pretrial matter which a magistrate judge may determine pursuant to 28 U.S.C. § 636(b)(1)(A). See Silong v. U.S., 5:05-CV-55-0C-10GRJ, 2006 WL 948048, at *1 n. 1 (M.D.Fla. April 12, 2006); Blinzler v. Marriott Int'l, Inc., No. Civ. A. 93-0673L, 1994 WL 363920, at *2 (D.R.I. July 6, 1994); O'Brien v. Goldstar Tech., Inc., 812 F.Supp. 383 (W.D.N.Y.1993); Russell v. Coughlin, No. 90 Civ. 7421, 1992 WL 209289 (S.D.N.Y. Aug.19, 1992); Hitachi Cable Am., Inc. v. Wines,
Civ.A. No. 85-4265, 1986 WL 2135 (D.N.J. Feb.14, 1986). This is true “because it can only result in the transfer of a case to another federal district, not in a decision on the merits or even a determination of federal jurisdiction.” Adams v. Key Tronic Corp., No. 94 Civ. AO535, 1997 WL 1864, at *1 (S.D.N.Y. Jan. 2, 1997) (collecting cases).Berg v. Aetna Freight Lines, CIV.A. 07-1393, 2008 WL 2779294 (W.D. Pa. July 15, 2008). Therefore, the decision to transfer a case rests within the jurisdiction and sound discretion of a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(A), subject to appeal to the district court for an abuse of that discretion. See Franklin v. GMAC, CIV.A. 13-0046, 2013 WL 140042 (W.D. Pa. Jan. 10, 2013) (“Orders to transfer are not listed as dispositive.....A Magistrate Judge may rule on such matters pursuant to 28 U.S.C. § 636(b)(1)(A).
Yet, while we have the authority to enter an order transferring this case, acting out of an abundance of caution, and in order to allow Davis to lodge any objection to this proposed case transfer, we are addressing this venue and transfer issue through a Report and Recommendation to the assigned district judge. In this way, Davis is given notice of the proposed transfer and is afforded the opportunity to lodge any objections he may have to this course of action
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the plaintiff's complaint be transferred to the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. §§ 1404 and 1406.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
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.