Kelly v. Clarke et al

Filing 5

ORDER TRANSFERRING CASE signed by Judge Craig M. Kellison on 8/16/06 ORDERING that: this case is TRANSFERRED to the Northern District of CA; the order setting status conference, issued on 8/8/06, is VACATED; upon transfer of this case, pltf should ob tain instruction from the USDC for the Northern District of CA with respect to the issuance of new summonses; and the Clerk is DIRECTED to close this file. Transmittal letter, certified copy of transfer order, and docket sheet sent. CASE CLOSED . (Brown, T)

(PS) Kelly v. Clarke et al

Doc. 5

Case 2:06-cv-01743-DFL-CMK

Document 5

Filed 08/17/2006

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs CLARKE, et al., Defendants. / Plaintiff, who is proceeding pro se, has filed a civil rights action, apparently pursuant to 42 U.S.C. § 1983, based on alleged violations of his constitutional rights. Plaintiff has paid the statutory filing fee. The federal venue statute requires that a civil action, other than one based on diversity jurisdiction, 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 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." See 28 U.S.C. § 1391(b). In this case, none of the defendants reside in this district. The claim arose in San Jose, California, 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ROY HAROLD KELLY, Plaintiff,

No. CIV S-06-1743 DFL-CMK-P

ORDER.

Case 2:06-cv-01743-DFL-CMK

Document 5

Filed 08/17/2006

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

which is in the Northern District of California. Therefore, plaintiff's claim should have been filed in the United States District Court for the Northern District of California. In the interest of justice, a federal court may transfer a complaint filed in the wrong district to the correct district. See 28 U.S.C. § 1406(a); Starnes v. McGuire, 512 F.2d 918, 932 (D.C. Cir. 1974). Accordingly, IT IS HEREBY ORDERED that: 1. This matter is transferred to the United States District Court for the

Northern District of California; 2. 3. The order setting status conference, issued on August 8, 2006, is vacated; Upon transfer of this case, plaintiff should obtain instruction from the

United States District Court for the Northern District of California with respect to issuance of new summonses; and 4. The Clerk of the Court is directed to close this file.

DATED: August 16, 2006.

______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE

2