Tharp v. Correctional Medical Services et al (INMATE2)

Filing 3

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint, that this case be TRANSFERRED to the United States District Court for the Northern District of Alabama pursuant to the provisions of 28 U.S.C. 1404. Objections to R&R due by 10/9/2008. Signed by Honorable Terry F. Moorer on 9/24/2008. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ E V E S T E R THARP, #196 360 P l a in tif f , v. C O R R E C T I O N A L MEDICAL SERVICES, e t al., D e f e n d a n ts . ____________________________ * * * * * 2:08-CV-752-TMH (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , an inmate proceeding pro se and presently confined at the William E. D o n a ld s o n Correctional Facility located in Bessemer, Alabama, filed this 42 U.S.C. § 1983 a c tio n on September 12, 2008. Plaintiff names as Defendants to this complaint

C o m m iss io n e r Richard Allen, Correctional Medical Services, Inc., Carraway Hospital, W a r d e n Gary Hetzel, and Prison Health Services, Inc. Plaintiff complains that he suffered a punctured intestine during a surgical procedure at Carraway Hospital which has resulted i n a hernia and pain. Plaintiff further complains that he is not receiving adequate medical ca re and treatment for his injuries. He brings this complaint seeking damages and declaratory a n d injunctive relief. Upon review of the factual allegations presented in the complaint, the c o u rt concludes that this case should be transferred to the United States District Court for the

N o rth e rn District of Alabama pursuant to 28 U.S.C. § 1404.1 I . DISCUSSION A civil action filed by an inmate 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 S ta te , (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). H o w e v e r, 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). It is clear from Plaintiff's recitation of the facts that the matters about which he c o m p la in s and about which he is currently concerned and has personal knowledge of o c c u rre d in the Northern District of Alabama and/or are occurring at a penal facility located in the Northern District of Alabama. Moreover, those individuals and/or entities personally re sp o n s ib le for the matters and conditions about which Plaintiff complains are located o u ts id e the jurisdiction of this court and/or are employed at an institution outside the ju ris d ic tio n of this court. Thus, the majority of material witnesses and evidence associated

Attached to Plaintiff's complaint is an affidavit in support of a request for leave to proceed in forma pauperis. However, in light of the April 1996 revisions to 28 U.S.C. § 1915 and under the circumstances of this case, 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 Northernn District of Alabama.

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w ith those claims relevant to Plaintiff's allegations are located in the Northern District of A la b a m a . Further, by virtue of his position as the Commissioner of the Alabama Department o f Corrections and their contracts with the Alabama Department of Corrections to provide s ta te - w id e inmate medical care and services, Defendants Allen and Prison Health Services, In c ., and Correctional Medical Services, Inc., are subject to service of process throughout th e state and commonly defend suits in all federal courts of this state. 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 Northern District of Alabama for review and determination. II. CONCLUSION 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 Northern 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 R e c o m m e n d a tio n on or before October 9, 2008. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.

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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 f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e r r 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 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 24 th day of September 2008.

/s/Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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