Gray v. Valenzuela

Filing 4

ORDER signed by Magistrate Judge John F. Moulds on 02/06/13 ordering the court has not ruled on petitioenr's application to proceed in forma pauperis. The clerk of the court is directed to serve a copy of petitioner's initial pleading on Michael Bien, Esq., Rosen, Bien, Galvin & Grunfeld, 315 Montgomery Street, San Francisco, CA 94104. CASE TRANSFERRED to the U.S. District Court for the Central District of California. (Plummer, M) Modified on 2/6/2013 (Plummer, M).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARYL GRAY,
Petitioner,

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vs.

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No. 2:13-cv-0190 JFM (HC)

ELVIN VALENZUELA, et al.,
Respondents.

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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed a civil action styled as a

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“Petition of Mandate” purportedly pursuant to 28 U.S.C. § 2255. The initial pleading is on a

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form application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has also

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filed a request to proceed in forma pauperis. This court will not rule on petitioner’s request to

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proceed in forma pauperis.
Petitioner is presently incarcerated at California Men’s Colony in San Luis Obispo

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County. He is serving a sentence for a conviction rendered by the Los Angeles County Superior

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Court. In the petition, petitioner challenges conditions of his confinement and seeks “expeditious

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release to the community.” Although it is not entirely clear, it appears that this action should be

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construed as a civil rights action pursuant to 42 U.S.C. § 1983.

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The federal venue statute provides that a civil action “may be brought in (1) a

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judicial district in which any defendant resides, if all defendants are residents of the State in

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which the district is located, (2) a judicial district in which a substantial part of the events or

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omissions giving rise to the claim occurred, or a substantial part of property that is the subject of

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the action is situated, or (3) if there is no district in which an action may otherwise be brought as

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provided in this action, any judicial district in which any defendant is subject to the court’s

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personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b).
In this case, petitioner has named the Governor of the State of California, the

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Warden of California Men’s Colony, and the former Director of the California Department of

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Corrections and Rehabilitation (CDCR) as respondents. It is not clear whether any of those

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individuals are proper parties in this action. Petitioner’s claim arose in the County of San Luis

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Obispo, which is in the Central District of California. Therefore, this action should have been

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filed in the United States District Court for the Central District of California. In the interest of

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justice, a federal court may transfer a complaint filed in the wrong district to the correct district.

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See 28 U.S.C. § 1406(a); Starnes v. McGuire, 512 F.2d 918, 932 (D.C. Cir. 1974).
In view of the allegations of the initial pleading, the Clerk of the Court will be

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directed to serve a copy of petitioner’s initial pleading on counsel for the plaintiff class in

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Coleman v. Brown, No. 2:90-cv-0520 LKK JFM P.

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Accordingly, IT IS HEREBY ORDERED that:

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1. This court has not ruled on petitioner’s application to proceed in forma

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pauperis;
2. The Clerk of the Court is directed to serve a copy of petitioner’s initial

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pleading on Michael Bien, Esq., Rosen Bien Galvan & Grunfeld, 315 Montgomery Street, San

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Francisco, CA 94104; and

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3. This matter is transferred to the United States District Court for the Central

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District of California.

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DATED: February 6, 2013.

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gray0190.108a

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