Cater v. Griffin(INMATE2)

Filing 3

REPORT AND RECOMMENDATIONS re 1 MOTION for Writ of Mandamus filed by James Otis Cater, it is the Recommendation of the Mag. Judge that this case be transferred to the USDC for the Southern District of AL pursuant to the provisions of 28 U.S.C. 1404. Objections to R&R due by 9/13/2005. Signed by Judge Delores R. Boyd on 8/30/05. (vmc, )

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Cater v. Griffin(INMATE2) Doc. 3 Case 2:05-cv-00808-MHT-DRB Document 3 Filed 08/30/2005 Page 1 of 4 I N THE UNITED STATES DISTRICT COURT F OR THE MIDDLE DISTRICT OF ALABAMA N O R T H E RN DIVISION _______________________________ J A M E S OTIS CATER Plaintiff, v. D E B O R A H GRIFFIN, AUSA for the Southern District of Alabama De fend ant. _______________________________ R E C O M M E N D A TI O N OF THE MAGISTRATE JUDGE In this civil proceeding, James Cater, a federal inmate, challenges the conduct of a f e d e r a l official in Mobile, Alabama, with respect to her action in filing a federal prosecution a g a i n s t him based on the same act and/or conduct made the subject of a previous State p r o s e c u ti o n against Plaintiff. Specifically, Plaintiff complains that the named defendant f a i le d to obtain the requisite approval for such action from the United States Department of J u s t ic e with regard to its Petite Policy and, thus, an appropriate policy statement was never m a d e a part of his federal criminal record.1 Plaintiff states that he requested in writing that D e f e n d a n t take appropriate action regarding his concern over her failure to adhere to the Petite Policy. He complains, however, that Defendant failed to respond which prompted him to file the instant action. * * * CIVIL ACTION NO. 2:05-CV-808-T (WO) * * A c c o r d i n g to the com p l a i n t , the Petite Policy is desig n e d to limit the exercise of po w e r to brin g s u c c e s s iv e prosecutions for the same offense. 1 Dockets.Justia.com Case 2:05-cv-00808-MHT-DRB Document 3 Filed 08/30/2005 Page 2 of 4 U p o n review of the complaint, the court concludes that this case should be transferred to the United States District Court for the Southern District of Alabama pursuant to 28 U.S.C. 1404.2 DISCUSSION A civil action filed against a federal official "may . . . be brought in any judicial d i s tr i c t in which (1) a defendant in the action resides, (2) a substantial part of the events or o m i s s io n s giving rise to the claim occurred, or a substantial part of property that is the subject o f the action is situated, or (3) the plaintiff resides if no real property is involved in the actio n." 28 U.S.C. 1391(e). The law further provides that "[f]or the convenience of p a r t ie s and witnesses, [and] in the interest of justice, a district court may transfer any civil actio n to any other district . . . where it might have been brought." 28 U.S.C. 1404(a). The sole individual listed as a defendant resides in the Southern District of Alabama. Mo reover, it is clear from the factual allegations contained in the complaint that the actions a b o u t which Plaintiff complains, including the witnesses and documents associated with this matter, either reside in, and/or are located in, the Southern District of Alabama. Although Plaintiff is currently incarcerated at the Maxwell Federal Prison Camp in Montgomery, A l a b a m a , it is clear that the parties, witnesses and evidence associated with this case are l o c a te d within the jurisdiction of the United States District Court for the Southern District of Alabama. P e t i ti o n e r requests leave to proceed in this action in forma pauperis. (Doc. No. 2.) The assessment a n d collection of any filing fee should be undertaken by the United States District Court for the Southern D i s t ri c t of Alabama in accordance with 28 U.S.C. 1915. 2 2 Case 2:05-cv-00808-MHT-DRB Document 3 Filed 08/30/2005 Page 3 of 4 In light of the foregoing, the court concludes that in the interest of justice and for the c o n v e n i e n c e of the parties, this case should be transferred to the United States District Court for the Southern District of Alabama for review and determination. CONCLUSION A c c o r d i n g l y , it is the RECOMMENDATION of the Magistrate Judge that this case b e transferred to the United States District Court for the Southern District of Alabama pursuan t to the provisions of 28 U.S.C. 1404. It is further ORDERED that the parties shall file any objections to the said Recommendation on o r before September 13, 2005. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, c o n c l u s iv e or general objections will not be considered by the District Court. The parties are a d v i s e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a l a b le . Failu re to file written objections to the proposed findings and advisements in the M agistrate Judge's Recommendation shall bar the party from a de novo determination by the D i s t r ic t Court of issues covered in the Recommendation and shall bar the party from a t t ac k i n g on appeal factual findings in the Recommendation accepted or adopted by the D i s t r ic t Court except upon grounds of plain error or manifest injustice. Nettles v. W a i n w r i g h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed 3 Case 2:05-cv-00808-MHT-DRB Document 3 Filed 08/30/2005 Page 4 of 4 d o w n prior to the close of business on September 30, 1981. D o n e this 30th day of August, 2005. / s / Delores R. Boyd D E L O R ES R. BOYD U N I TE D STATES MAGISTRATE JUDGE 4

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