Holcomb v. Berryhill

Filing 6

ORDER TRANSFERRING COMPLAINT TO EASTERN DISTRICT OF CALIFORNIA. Signed by Judge Maxine M. Chesney on October 24, 2017. (mmclc1, COURT STAFF) (Filed on 10/24/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JERALD E. HOLCOMB,
Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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United States District Court
Northern District of California

Case No. 17-cv-06024-MMC
ORDER TRANSFERRING COMPLAINT
TO EASTERN DISTRICT OF
CALIFORNIA

Defendant.

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Before the Court are plaintiff's complaint and application to proceed in forma

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pauperis, both filed October 20, 2017. Having read and considered plaintiff's filings, the

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Court rules as follows.

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Plaintiff brings his complaint pursuant to 42 U.S.C. § 405(g), seeking review of a

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final decision of the Commissioner of Social Security ("Commissioner"). An action for

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judicial review of a final decision of the Commissioner may only be brought in "the judicial

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district in which the plaintiff resides, or has his principal place of business, or, if he does

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not reside or have his principal place of business within any such judicial district, in the

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United States District Court for the District of Columbia." See 42 U.S.C. § 405(g).

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Where the defendant has not filed a responsive pleading and the time for doing so

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has not run,1 the propriety of venue may be raised by the court sua sponte. See Costlow

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v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986); see, e.g., Alexandria v. United States,

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2007 WL 2947461, at *1 (S.D. Cal. October 9, 2007) (dismissing in forma pauperis

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As plaintiff's application to proceed in forma pauperis is pending, a summons has
not been issued; consequently, the time to respond has not begun to run. See Fed. R.
Civ. P. 12(a).

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complaint sua sponte for improper venue).
Here, plaintiff alleges he resides in Vallejo, California (see Compl. ¶ 1), which is

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located in Solano County (see Pl.'s Civil Cover Sheet), which, in turn, is located in the

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Eastern District of California, see 28 U.S.C. § 84(b). Further, plaintiff has conceded that

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he has not been employed since 2011 and that his sole source of income is general

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assistance, thereby eliminating principal place of business as a basis for venue in this

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District. (See Pl.'s Appl. to Proceed In Forma Pauperis at 2.) Consequently, the only

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proper venue for the instant action is the Eastern District of California.

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"The district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice, transfer such case to

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United States District Court
Northern District of California

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any district or division in which it could have been brought." 28 U.S.C. § 1406(a). Here,

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as the applicable statute of limitations is relatively short, see 42 U.S.C. § 405(g)

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(providing action must be filed "within sixty days after the mailing to [claimant] of notice of

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[the Commissioner's] decision"), the Court finds it appropriate to transfer the action rather

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than dismiss it.

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Accordingly, the above-titled action is hereby TRANSFERRED to the Eastern
District of California.
IT IS SO ORDERED.

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Dated: October 24, 2017
MAXINE M. CHESNEY
United States District Judge

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