Pearson v. Allen et al (INMATE 2)

Filing 6

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Adero Pearson 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 10/28/2009. Signed by Honorable Terry F. Moorer on 10/15/2009. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ A D E R O PEARSON, #204003 P l a in tif f , v. R I C H A R D ALLEN, et al., D e f e n d a n ts . ____________________________ * * * * * 2:09-CV-932-WKW (WO)

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 St. Clair Correctional Facility. He in d ica tes in his complaint that the incidents about which complains occurred at the St. Clair C o rre c tio n a l Facility as well as the Jefferson County Circuit. Both the St. Clair Correctional F a c i li ty and the Jefferson County Circuit Court are within the jurisdiction of the United S ta te s District Court for the Northern District 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 Northern 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 assessment and collection of any filing fee should be undertaken by the United States District Court for the Northern District of Alabama.

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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 f u 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). I t is clear from the allegations in the complaint that all the actions about which P la in tif f complains occurred or are occurring within the jurisdiction of the United States D istric t Court for the Northern District of Alabama. Although some of the named defendants re sid e in the Middle District of Alabama, they are subject to service of process throughout the state and commonly defend suits in all federal courts of this state. Moreover, it appears f ro m Plaintiff's recitation of the facts that a majority of witnesses and evidence associated w ith this case are located in the Northern District of Alabama. Thus, the court concludes that f ro m the face of the complaint, the proper venue for this cause of action is the United States D is tric t Court for the Northern District of Alabama.2

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

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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. 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 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 said R e c o m m e n d a tio n on or before October 28, 2009. 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 f in 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

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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 15 th day of October.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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