Bartning v. USA KIA/DOW Family Foundation et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 8/7/13 ORDERING that Plaintiff's Motion to Proceed IFP 3 is GRANTED; IT IS ALSO RECOMMENDED that the Action be dismissed re 1 Complaint. These Findings and Recommendations are submitted to U.S. District Judge Morrison C. England, Jr.( Objections to theser F&R are due within fourteen(14) days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT HENRY BARTNING, et al.,

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Plaintiffs,

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No. 2:13-cv-1540-MCE-KJN PS

v.

ORDER AND

OHIO NORTHERN UNIVERSITY, et al.,

FINDINGS AND RECOMMENDATIONS

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Defendants.

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Plaintiff Vincent Henry Bartning, proceeding in this action without counsel, has requested

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 3.)1 Plaintiff’s

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application in support of his request to proceed in forma pauperis makes the showing required by

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28 U.S.C. § 1915(a)(1). Accordingly, the undersigned grants plaintiff’s request to proceed in

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forma pauperis.
The determination that a plaintiff may proceed in forma pauperis does not complete the

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required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at

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any time if it determines that the allegation of poverty is untrue, or if the action is frivolous or

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This case proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(21) and 28 U.S.C.
§ 636(b)(1).
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malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against

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an immune defendant.

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Plaintiff, presently a resident of Solano County, claims to be the CEO of the USA

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KIA/DOW Family Foundation2 and asserts that he is currently obtaining a second graduate

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degree at Regis University in Software Engineering. Although plaintiff’s complaint is somewhat

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confusing and contains little detail, plaintiff appears to allege that he completed his first year of

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law school at Ohio Northern University after scoring in the top-25th percentile on the LSAT, but

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that Ohio Northern University and the United States Department of Education somehow

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discriminated against him based on his age, sex, and other possible classifications. Plaintiff seeks

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a refund or forgiveness of all loans associated with the first year of law school, cancelation of any

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further debt at Ohio Northern University, and/or correction of his grades that resulted in dismissal

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from the university. Plaintiff also suggests that he is somehow attempting to bring a class action

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on behalf of members of the USA KIA/DOW Family Foundation. (ECF No. 1.)
After reviewing plaintiff’s complaint, it appears that venue in this district is improper.

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

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

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located; (2) a judicial district in which a substantial part of the events or omissions giving rise to

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the claim occurred, or a substantial part of property that is the subject of the action is situated; or

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(3) if there is no district in which an action may otherwise be brought as provided in this section,

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any judicial district in which any defendant is subject to the court’s personal jurisdiction with

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respect to such action.” 28 U.S.C. § 1391(b).

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Here, plaintiff presently resides in Solano County, which is located in the Eastern District

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of California. However, as the above statute shows, it is generally the defendant’s residence, and

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not the plaintiff’s residence, that guides the venue inquiry. As plaintiff’s civil cover sheet notes,

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Ohio Northern University is located in Hardin County, Ohio. Even if the United States

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Department of Education is deemed to reside anywhere in the country, including in the Eastern

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According to plaintiff, the USA KIA/DOW Family Foundation is a nonprofit organization for
families of United States citizens killed in action (“KIA”) or who died of wounds (“DOW”).
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District of California, venue would not be proper in this district, because not all defendants are

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residents of the state in which the district is located. See 28 U.S.C. § 1391(b)(1) ( venue proper in

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“a 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”). Ohio Northern University is plainly not a resident of California.

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Furthermore, because plaintiff’s claims arise from his studies as a law student at Ohio Northern

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University, and his alleged illegal treatment by Ohio Northern University, a substantial part of the

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events or omissions giving rise to the claim did not occur in this district. Instead, it appears that

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the action would need to be brought in the United States District Court for the Northern District

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of Ohio, in which Ohio Northern University and Hardin County are located.

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Therefore, the court recommends that plaintiff’s action be dismissed for improper venue

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pursuant to 28 U.S.C. § 1406(a), but without prejudice to plaintiff re-filing the action in a proper

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district. The court expresses no opinion regarding the merits of plaintiff’s claims.
Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that plaintiff’s

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motion to proceed in forma pauperis (ECF No. 3) is GRANTED.

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IT IS ALSO HEREBY RECOMMENDED that the action be DISMISSED WITHOUT
PREJUDICE for improper venue pursuant to 28 U.S.C. § 1406(a).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served on all parties and filed with the court within fourteen (14) days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO ORDERED AND RECOMMENDED.
Dated: August 7, 2013

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