Thurston v. Colorado Department of Corrections et al

Filing 5

ORDER, Plaintiff's Application to Proceed In Forma Pauperis 2 is granted; this action is transferred to the District of Colorado for further proceedings. Signed by Judge David G Campbell on 4/17/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Donald S. Thurston,

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Plaintiff,

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vs.

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Colorado Dep’t of Corrections, et al.,
Defendants.

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No. CV 13-0410-PHX-DGC (LOA)
ORDER

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On February 27, 2013, Plaintiff Donald S. Thurston, who is confined in the Arizona

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State Prison Complex, Cibola Unit, in San Luis, Arizona, filed a pro se civil rights Complaint

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pursuant to 42 U.S.C. § 1983 with an Application to Proceed In Forma Pauperis. (Doc. 1,

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2.) The Court will grant Plaintiff leave to proceed in forma pauperis, but because venue in

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this district is improper, the Court will transfer this action to the District of Colorado for

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further proceedings.

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I.

Application to Proceed In Forma Pauperis and Filing Fee

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Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.

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§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).

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The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory

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fee will be collected monthly in payments of 20% of the previous month’s income each time

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the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a

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separate Order requiring the appropriate government agency to collect and forward the fees

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according to the statutory formula.

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II.

A civil action in which subject matter jurisdiction is not solely based on diversity may

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be brought only 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 a substantial part of [the]
property that is the subject of the action is situated, 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.

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Venue

28 U.S.C. § 1391(b).

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Subject matter jurisdiction in this case is not based solely on diversity. Further, none

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of the Defendants appear to be a resident of, or to have even minimal contacts with, the State

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of Arizona. Rather, it appears that all of the Defendants reside or can be found in the District

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of Colorado. In addition, it appears that all of the events giving rise to the claims asserted

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in the Complaint occurred in Colorado. For these reasons, the Court concludes that venue

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is not proper in this district, but would be proper in the District of Colorado.

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III.

Transfer to the District of Colorado

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The Court may dismiss or transfer any action “laying venue in the wrong division or

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district.” 28 U.S.C. § 1406(a). Further, “[f]or the convenience of the parties and witnesses,

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in the interest of justice, a district court may transfer any civil action to any other district or

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division where it might have been brought.” 28 U.S.C. § 1404(a). The decision to transfer

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under § 1404(a) lies within the discretion of the district court and is to be determined upon

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notions of convenience and fairness on a case-by-case basis. Stewart Org., Inc. v. Ricoh

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Corp., 487 U.S. 22, 29 (1988). “[T]ransfer will be in the interest of justice because normally

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dismissal of an action that could be brought elsewhere is ‘time-consuming and justice-

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defeating.’” Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) (quoting Goldlawr, Inc.

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v. Heiman, 369 U.S. 463, 467 (1962)).

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In this case, it appears that all of the Defendants reside in the State of Colorado and

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that the Court lacks personal jurisdiction over them. See Nelson v. International Paint Co.,

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716 F.2d 640, 643 (9th Cir. 1983). The events which gave rise to Plaintiff’s claims also arose

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in Colorado and the witnesses and documents related to these claims are likely to be found

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in Colorado. The interests of justice support transfer of this action to the District of

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Colorado. Accordingly, the Court finds that this case, which could have originally been

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brought in the District of Colorado, should be transferred to that district pursuant to 28

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U.S.C. § 1404(a).

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 2.)

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(2)

As required by the accompanying Order to the appropriate government agency,

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Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.

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(3)

This action is transferred to the District of Colorado for further proceedings.

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DATED this 17th day of April, 2013.

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