Opinion
3:04-CV-444-D
March 17, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
On March 2, 2004, Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 1983. He is presently confined at the Hodge Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ — CID) in Rusk, Texas. Defendants are the Kitchen Department at the Hodge Unit, and TDCJ — CID. Plaintiff has not submitted a motion for leave to proceed in forma pauperis.
The complaint alleges that T. Clater, kitchen captain at the Hodge Unit, has forced Plaintiff to lift objects which exceed ten pounds in violation of his medical restriction. (Complaint at 3-4). Plaintiff requests compensatory damages for pain and suffering and a reclassification of "the entire Hodge Unit System Kitchen Dept." (Id. at 4).
28 U.S.C. § 1391(b), which governs venue of a federal cause of action, provides in pertinent part as follows:
(b) 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 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.
The events giving rise to this cause of action occurred entirely at the Hodge Unit in Rusk, Texas, where Plaintiff is presently confined. None of the events took place in the Northern District of Texas.
The City of Rusk is located in Cherokee County, which lies within the Tyler Division of the Eastern District of Texas. 28 U.S.C. § 124(c)(1). Because Plaintiffs claims arise out of events that occurred in Cherokee County, venue is not proper in the Northern District of Texas. The District Court should dismiss this case without prejudice to it being reasserted in the United States District Court for the Eastern District of Texas, Tyler Division.
When venue is not proper, a district court has the authority to dismiss the case or transfer it in the interest of justice to any district or division in which the action could have been brought. 28 U.S.C. § 1406(a). Section 1406(a) provides as follows:
The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
A district court has broad discretion in determining whether to dismiss or transfer a case in the interest of justice. See Caldwell v. Palmetto State Savings Bank of South Carolina. 811 F.2d 916, 919 (5th Cir. 1987).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter its order dismissing this action without prejudice pursuant to 28 U.S.C. § 1406(a).
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en bane), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten — day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.