Flynn v. McKee et al (INMATE1)

Filing 2

RECOMMENDATION of the Magistrate Judge that this case be transferred to the United States District Court for the Southern District of Alabama pursuant to the provisions of 28 U.S.C. 1404. Objections due on or before 3/24/06. Signed by Judge Delores R. Boyd on 3/9/06. (sl, )

Flynn v. McKee et al (INMATE1)

Doc. 2

Case 2:06-cv-00220-WHA-DRB

Document 2

Filed 03/09/2006

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION LAMAR FLYNN, #160950, Plaintiff, v. CHARLES McKEE, et al., Defendants. ) ) ) ) ) CIVIL ACTION NO. 2:06-CV-220-WHA ) [WO] ) ) ) )

RECOMMENDATION OF THE MAGISTRATE JUDGE
In this 42 U.S.C. § 1983 action, Lamar Flynn ["Flynn"], a state inmate, alleges that his constitutional rights are being violated during his confinement at the Holman Correctional Facility ["Holman"]. Specifically, Flynn complains that correctional officers at Holman are subjecting him to cruel and unusual punishment, retaliating against him and denying him due process. Plaintiff's Complaint at 3. The Holman Correctional facility is located within the jurisdiction of the United States District Court for the Southern District of Alabama. Upon review of the factual allegations presented in 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. § 1404.1

1. The plaintiff failed to file an application for leave to proceed in forma pauperis nor did he submit the $250 filing fee. However, in light of the 1996 revisions to 28 U.S.C. § 1915 and under the circumstances of this case, this court would make no ruling on the plaintiff's in forma pauperis status as the assessment and collection of any filing fee should be undertaken by the United States District Court for the Southern District of Alabama.

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Case 2:06-cv-00220-WHA-DRB

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Filed 03/09/2006

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DISCUSSION A civil action filed by an inmate under the 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 claim occurred . . . 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). The law further provides that "[f]or the convenience of parties and witnesses, [and] in the interest of justice, a district court may transfer any civil action to any other district . . . where it might have been brought." 28 U.S.C. § 1404(a). The named defendants reside in the Southern District of Alabama. All of the actions about which the plaintiff complains are occurring or have occurred within the jurisdiction of the United States District Court for the Southern District of Alabama. Thus, the claims asserted by the plaintiff are beyond the venue of this court. However, it is clear from the face of the complaint that the proper venue for this cause of action is the United States District Court for the Southern District of Alabama. In light of the foregoing, the court concludes that in the interest of justice and for the convenience 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 Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case be transferred to the United States District Court for the Southern District of Alabama 2

Case 2:06-cv-00220-WHA-DRB

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Filed 03/09/2006

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pursuant to the provisions of 28 U.S.C. § 1404. It is further ORDERED that on or before March 24, 2006 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Done this 9th day of March, 2006.

/s/ Delores R. Boyd UNITED STATES MAGISTRATE JUDGE

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