Wallace v. Culliver (INMATE 1)

Filing 3

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Charles Wallace, 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 USC 1404; Objections to R&R due by 8/21/2006. Signed by Judge Charles S. Coody on 8/8/06. (vma, )

Wallace v. Culliver (INMATE 1)

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Case 2:06-cv-00688-WKW-CSC

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Filed 08/08/2006

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION C H A R L E S WALLACE, #192974, P l a in tif f , v. ) ) ) ) ) C IV IL ACTION NO. 2:06-CV-688-WKW ) [WO] ) ) ) )

G R A N T T CULLIVER, D e f e n d a n t.

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Charles Wallace ["Wallace"], a state inmate, asserts th a t his constitutional rights were violated during his confinement at the Holman Correctional F a c ility ["Holman"]. Specifically, Wallace complains that Grantt Culliver, the warden at H o lm a n , deprived him of his property without due process of law. Holman Correctional fa cility is located within the jurisdiction of the United States District Court for the Southern D is tric t of Alabama. U p o n 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 D is tric t of Alabama pursuant to 28 U.S.C. § 1404.1

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1. Attached to Wallace's complaint is an affidavit in support of a request for leave to proceed in forma

p a u p eris. However, in light of the April 1996 revisions to 28 U.S.C. § 1915 and under the circumstances of this c a se , this court makes no determination with respect to such request 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-00688-WKW-CSC

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D IS C U S S IO N A civil action filed by an inmate under the authority of 42 U.S.C. § 1983 "may be b ro u g h t . . . in (1) a judicial district where any defendant resides, if all defendants reside in th e same State, (2) a judicial district in which a substantial part of the events or omissions g iv in g rise to the claim occurred . . . or (3) a judicial district in which any defendant may be f o u n d , if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1 3 9 1 (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). T h e named defendant resides in the Southern District of Alabama. The action about w h ic h the plaintiff complains occurred within the jurisdiction of the United States District C o u r t for the Southern District of Alabama. Thus, the claim asserted by the plaintiff is b e yo n d the venue of this court. However, it is clear from the face of the complaint that the p rop er venue for this cause of action is the United States District Court for the Southern D is tric t of Alabama. In light of the foregoing, the court concludes that in the interest of justice and for the co n v en ienc e of the parties this case should be transferred to the United States District Court f o r the Southern District of Alabama for review and determination.

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Case 2:06-cv-00688-WKW-CSC

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Filed 08/08/2006

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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 rsua n t to the provisions of 28 U.S.C. § 1404. It is further ORDERED that on or before August 21, 2006 the parties may file objections to the R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a i l u r e to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D i s t r i c t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig 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

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Case 2:06-cv-00688-WKW-CSC

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h a n d e d down prior to the close of business on September 30, 1981. D o n e this 8 th day of August, 2006.

/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE

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