(PC) Harper v. Powell, et al.

Filing 10

ORDER VACATING 7 Findings and Recommendations to deny Plaintiff's Application to proceed IFP 2 ; TRANSFERRING case to Sacramento Division of the Eastern District of California; DENYING without prejudice Plaintiff's Request to Dismiss 8 signed by Magistrate Judge Sheila K. Oberto on 5/13/2024. CASE TRANSFERRRED to Sacramento Division. New Case Number 2:24-cv-01343-AC. CASE CLOSED. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL HARPER, 12 13 14 Plaintiff, v. B. POWELL, et al., 15 Defendants. 16 Case No.: 1:24-cv-00456-KES-SKO ORDER VACATING FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS ORDER TRANSFERRING CASE TO THE SACRAMENTO DIVISION OF THE EASTERN DISTRICT OF CALIFORNIA ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S REQUEST TO DISMISS (Doc. 8) 17 18 19 20 21 Plaintiff Daniel Harper is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. 22 I. 23 Plaintiff filed his complaint and an application to proceed in forma pauperis on April 17, 24 25 INTRODUCTION 2024. (Docs. 1 & 2.) On April 22, 2024, this Court issued its Findings and Recommendations to Deny 26 Plaintiff’s Application to Proceed In Forma Pauperis. The Court found that Plaintiff had filed 27 prior lawsuits that were dismissed for a failure to state a claim, subjecting Plaintiff to the 28 28 U.S.C. § 1915(g) bar, and that he was not in imminent danger of serious physical injury. (Doc. 7.) 1 The Court recommended Plaintiff’s application to proceed in forma pauperis be denied and that 2 he be ordered to pay the $405 filing fee within 30 days. (Id. at 4.) 3 On May 6, 2024, Plaintiff filed an untitled document, docketed by the Clerk of the Court 4 as a Request to Dismiss. (Doc. 8.) Plaintiff states his complaint should have been filed in 5 Sacramento rather than Fresno during the e-filing process, and seeks to “get this case dismissed 6 so [he] can file it” in Sacramento. (Id.) 7 II. 8 A review of Plaintiff’s complaint indicates his claims arose at California State Prison- 9 DISCUSSION Sacramento, rather than at the institution where he is presently housed.1 Thus, the alleged 10 violations took place in Sacramento County, which is part of the Sacramento Division of the 11 United States District Court for the Eastern District of California. Therefore, the complaint should 12 have been filed in the Sacramento Division. 13 Pursuant to Local Rule 120(f), a civil action which has not been commenced in the proper 14 court may, on the court’s own motion, be transferred to the proper court. Therefore, this action 15 will be transferred to the Sacramento Division. This Court will vacate its Findings and 16 Recommendations issued April 22, 2024, to permit the proper court to consider Plaintiff's request 17 to proceed in forma pauperis. 18 Plaintiff’s request to dismiss filed May 6, 2024, will be denied without prejudice. Should 19 Plaintiff wish to dismiss the action following transfer to the Sacramento Division, he may submit 20 a notice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, to that court. 21 III. CONCLUSION AND ORDER 22 Based on the foregoing and for good cause appearing, IT IS HEREBY ORDERED that: 23 1. 24 The Findings and Recommendations issued April 22, 2024 (Doc. 7) are VACATED; 25 2. Plaintiff’s request to dismiss (Doc. 8) is DENIED without prejudice; 26 27 28 1 Plaintiff is presently housed at California State Prison-Corcoran. 2 1 3. 2 This action is transferred to the United States District Court for the Eastern District of California sitting in Sacramento; 3 4. 4 All future filings shall refer to the new Sacramento case number assigned and shall be filed at: 5 United States District Court Eastern District of California 501 "I" Street, Suite 4-200 Sacramento, CA 95814 6 7 5. The Sacramento Division shall rule on Plaintiff's request to proceed in forma pauperis. 8 9 10 11 12 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto May 13, 2024 . UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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