Kelly v. Yett et al

Filing 7

ORDER OF TRANSFER. Signed by Judge Jeffrey S. White on 5/26/09. (jjo, COURT STAFF) (Filed on 5/26/2009)

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 27 28 Plaintiff, a California prisoner incarcerated at the Correctional Training Facility in Soledad, California, has filed this civil rights action under 42 U.S.C. § 1983 regarding the conditions of his confinement while incarcerated at the California Men's Colony in San Luis Obispo, California. San Luis Obispo, California is located in San Luis Obispo County, which is within the venue of the United States District Court for the Central District of California. Plaintiff alleges that the events in the complaint took place at and all of the Defendants work at California Men's Colony, except for two Defendants who work in Sacramento, California. When jurisdiction is not founded solely on diversity, venue is proper in the district in which (1) any defendant resides, if all of the defendants reside in the same state, (2) the 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. 28 U.S.C. § 1391(b). Where a case is filed in the wrong venue, the district court has the discretion either to dismiss the ) ) Plaintiff, ) ) vs. ) ) E. M. YETT, JOHN MARSHALL, PAUL ) FURNARI, S. R. STINSON, T. FIFIELD, L. ) WARREN, T. LOCKWOOD, ) ) Defendants. ) WILLIE J. KELLY, No. C 09-0774 JSW (PR) ORDER OF TRANSFER (Docket Nos. 2, 5) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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case or transfer it to the proper federal court "in the interest of justice." 28 U.S.C. § 1406(a). Venue may be raised by the court sua sponte where the defendant has not yet filed a responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). Plaintiff brings his claims about actions taken in San Luis Obispo County, within the venue of the Central District of California. See 28 U.S.C. § 84. Accordingly, IT IS ORDERED in the interest of justice, and pursuant to 28 U.S.C. § 1406(a), that this action be TRANSFERRED to the United States District Court for the Central District of California. In light of the transfer, the Court will not resolve Petitioner's pending motions to proceed in forma pauperis (docket nos. 2, 5). The Clerk of the Court shall transfer this matter forthwith and terminate docket numbers 2 and 5 from this Court's docket. IT IS SO ORDERED. DATED: May 26, 2009 JEFFREY S. WHITE United States District Judge

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Willie J. Kelly J38466 P.O. Box 689 Soledad, CA 93960 Dated: May 26, 2009 v. E.M. YETT et al, Defendant. WILLIE J. KELLY, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-00774 JSW CERTIFICATE OF SERVICE

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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 May 26, 2009, 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.

Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk