Porch v. Campbell et al (INMATE2)

Filing 3

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Orlando Dewayne Porch, t 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 12/12/2005. Signed by Judge Vanzetta P. McPherson on 11/28/05. (vma, )

Porch v. Campbell et al (INMATE2)

Doc. 3

Case 2:05-cv-01098-MHT-VPM

Document 3

Filed 11/28/2005

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _______________________________ O R L A N D O DEWAYNE PORCH, #111 575 P l a i n t if f , v. D O N A L CAMPBELL, et al., D e f e n d a n ts . _______________________________ * * * CIVIL ACTION NO. 2:05-CV-1098-T (W O ) * *

RECOMMENDATION OF THE MAGISTRATE JUDGE T h is matter is before the court on Plaintiff's complaint filed under the provisions of 4 2 U.S.C. § 1983. Plaintiff is currently confined at the Holman Correctional Facility and the in c id e n t about which complains occurred at this facility. Holman Correctional Facility is lo c a te d in Atmore, Alabama, which is within the jurisdiction of the United States District C o u rt for the Southern District of Alabama. U p o n review of the factual allegations presented in the complaint, the court concludes t h a t this case should be transferred to the United States District Court for the Southern D is tric t of Alabama pursuant to 28 U.S.C. § 1404.1

This court makes no ruling on Plaintiff's motion for leave to proceed in forma pauperis as the a s s e s s m e n t and collection of any filing fee should be undertaken by the United States District Court for the S o u th e r n District of Alabama.

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Dockets.Justia.com

Case 2:05-cv-01098-MHT-VPM

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D IS C U S S IO N A civil action filed under authority of 42 U.S.C. § 1983 "may be brought . . . 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 c laim occurred . . . or (3) a judicial district in which any defendant may be found, if there is n o district in which the action may otherwise be brought." 28 U.S.C. § 1391(b). The law fu rth e r provides that "[f]or the convenience of parties and witnesses, [and] in the interest of ju s tic e , a district court may transfer any civil action to any other district . . . where it might h av e been brought." 28 U.S.C. § 1404(a). It is clear from the allegations in the complaint that all the actions about which P la in tiff complains occurred within the jurisdiction of the United States District Court for the S o u th e rn District of Alabama. Although Defendant Campbell resides in the Middle District o f Alabama, he is subject to service of process throughout the state and commonly defend s suits in all federal courts of this state. Moreover, it appears from Plaintiff' s recitation o f the facts that a majority of witnesses and evidence associated with this case are located in the Southern District of Alabama. Thus, the court concludes that from the face of the c o m p la in t, the proper venue for this cause of action is the United States District Court for the S o u th e r District of Alabama.2 In light of the foregoing, the court concludes that in the

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In so ruling, this court does not preliminarily scrutinize the merits of Plaintiff's complaint against

th e named parties.

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Case 2:05-cv-01098-MHT-VPM

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in te re st of justice and for the convenience of the parties this case should be transferred to the U n ite d States District Court for the Southern District of Alabama for review and d e te rm in a tio n .

C O N C L U SIO N A c c o r d in g ly , 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 p u rs u a n t to the provisions of 28 U.S.C. § 1404. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before December 12, 2005. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation objected to. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of 3

Case 2:05-cv-01098-MHT-VPM

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P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D O N E this 28 th day of November, 2005

/s / Vanzetta Penn McPherson V A N Z E T T A PENN MCPHERSON U N IT E D STATES MAGISTRATE JUDGE

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