Chacon v. Cerrini, et al.

Filing 8

ORDER OF TRANSFER. Signed by Judge Claudia Wilken on 10/5/2011. (ndr, COURT STAFF) (Filed on 10/5/2011) [Transferred from cand on 10/7/2011.]

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 EDIN A. CHACON, 5 Plaintiff, 6 No. C 11-00122 CW (PR) ORDER OF TRANSFER v. 7 J. CERRINI, et al., 8 Defendants. ____________________________ / 9 United States District Court For the Northern District of California 10 Plaintiff, a state prisoner incarcerated at the California 11 Correctional Institution at Tehachapi (CCI), has filed this pro se 12 civil rights action pursuant to 42 U.S.C. § 1983. His motion for 13 leave to proceed in forma pauperis has been granted. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In his complaint, Plaintiff alleges that on December 11, 2008, he was transferred from CCI to San Quentin State Prison (SQSP) to attend the trial of his civil rights action against medical personnel at Pelican Bay State Prison.1 Plaintiff remained at SQSP until February 18, 2009, when he was transferred back to CCI. Plaintiff claims that during the approximately three months he spent at SQSP, Correctional Officer J. Cerrini retaliated against him for his lawsuit by refusing to allow him access to legal materials he required for his trial, verbally harassing him and calling him a "stool pigeon" in front of other inmates, falsely accusing him of misconduct in order to keep him in administrative segregation, and intentionally throwing a food tray at him. Further, Plaintiff maintains that after he returned to CCI in 1 See Chacon v. Gallian, et al., Case No. C 05-04880 SI (PR). 1 February 2009, CCI institutional gang investigators T. Crouch and 2 J. Tyree, and CCI appeals coordinator K. Sampson, retaliated 3 against him for his lawsuit by revalidating Plaintiff as a gang 4 member based on false evidence allegedly found by Cerrini in 5 Plaintiff's cell at SQSP. 6 after he was revalidated based on such evidence, he filed an 7 administrative appeal at SQSP asking for the evidence to be removed 8 from his file, but SQSP institutional gang investigator E. Patao 9 and SQSP correctional lieutenant T. Amrhein-Conama retaliated Additionally, Plaintiff complains that United States District Court For the Northern District of California 10 against him by refusing to do so. 11 and equitable relief. Plaintiff seeks monetary damages 12 Venue may be raised by the court sua sponte where the 13 defendant has not filed a responsive pleading and the time for 14 doing so has not run. 15 (9th Cir. 1986). 16 diversity, venue is proper in (1) the district in which any 17 defendant resides, if all of the defendants reside in the same 18 state; (2) the district in which a substantial part of the events 19 or omissions giving rise to the claim occurred, or a substantial 20 part of the property that is the subject of the action is situated; 21 or (3) a judicial district in which any defendant may be found, if 22 there is no district in which the action may otherwise be brought. 23 See 28 U.S.C. § 1391(b). 24 See Costlow v. Weeks, 790 F.2d 1486, 1488 When jurisdiction is not founded solely on In the present action, Plaintiff alleges facts concerning 25 defendants and events in two different judicial districts. 26 Specifically, SQSP is located in Marin County in the Northern 27 District of California, and CCI is located in Kern County in the 28 Eastern District of California. See 28 U.S.C. § 84(a),(b). 2 1 Consequently, under § 1391(b), venue is proper in either district. 2 Where, however, an alternative forum with greater relation to the 3 defendants or the action exists than the forum in which the action 4 was filed, the action may be transferred to such alternative forum 5 "[f]or the convenience of parties and witnesses, in the interest of 6 justice." 7 See 28 U.S.C. § 1404(a). Here, the Court concludes the Eastern District would be a more 8 convenient forum because Plaintiff is incarcerated at CCI in the 9 Eastern District, the Defendants responsible for Plaintiff's United States District Court For the Northern District of California 10 revalidation as a gang member all are employed at CCI, the decision 11 to rely on the alleged false report by Cerrini and to revalidate 12 Plaintiff as a gang member was made by Defendants at CCI, 13 Plaintiff's retaliation claim against Cerrini is in large part 14 based on Cerrini's alleged falsification of the report relied upon 15 to revalidate Plaintiff, and Plaintiff's claims against the two 16 SQSP Defendants other than Cerrini stem from Plaintiff's 17 unsuccessful attempts to have those Defendants remove Cerrini's 18 report from Plaintiff's file. 19 Accordingly, IT IS ORDERED in the interest of justice and for 20 the convenience of both the parties and the witnesses, and pursuant 21 to 28 U.S.C. § 1404(a), that this action be TRANSFERRED to the 22 United States District Court for the Eastern District of 23 California. 24 The Clerk of the Court shall transfer this matter forthwith. 25 IT IS SO ORDERED. 26 27 28 DATED: 10/5/2011 _________________________ CLAUDIA WILKEN United States District Judge 3 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 EDIN A. CHACON, 4 Case Number: CV11-00122 CW Plaintiff, 5 CERTIFICATE OF SERVICE v. 6 J. CERRINI et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 5, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 17 Edin A. Chacon K-30713 California Correctional Institution 4B/6B 105L P.O. Box 1906 Tehachapi, CA 93581 18 Dated: October 5, 2011 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 4

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