Melnyk v. California Director of Corrections et al

Filing 15

ORDER OF TRANSFER to the Eastern District of California. Signed by Judge Phyllis J. Hamilton on 10/19/09. (Attachments: # 1 Certificate of Service)(nah, COURT STAFF) (Filed on 10/19/2009) Modified on 10/20/2009 (vlk, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 v. CALIFORNIA DIRECTOR OF CORRECTION; CALIFORNIA DNA DATA BANK; VICTIMS' COMPENSATION GOVERNMENT CLAIMS BOARD, et al., Defendants. / RICHARD ROBERT MELNYK, Plaintiff, No. C 09-0725 PJH (PR) ORDER OF TRANSFER UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

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For the Northern District of California

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This is a civil rights case brought pro se by a state prisoner. Plaintiff was convicted in the California Superior Court for Orange County of burglary, receiving stolen property, and vehicle theft. See People v. Melnyk, 2006 WL 1725611 at *1 (Cal. App. 2006). The conviction was reversed by the California Court of Appeal and remanded with instructions to the trial court to grant plaintiff's motion to suppress. Id. at *1. He does not say whether he was retried. When he filed the complaint he was in a prison in Pennsylvania, and currently has an address at "Pyramid Health Care" in Altoona, Pennsylvania. Plaintiff complains that his DNA was not deleted from the state DNA database when his conviction was reversed, and that his claim (presumably a state tort claim, perhaps based on the failure to delete his DNA information) was denied by defendant Government Claims Board. The state agency defendants cannot be sued in federal court. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-38 (1985) (11th Amendment bars from the federal courts suits against a state by its own citizens, citizens of another state or citizens or subjects of any foreign state). The claims against them will be dismissed.

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The only remaining claim is against the Director of the California Department of Corrections and Rehabilitation, who is to be found in the venue of the United States District Court for the Eastern District of California. Venue, therefore, properly lies in that district and not in this one. See 28 U.S.C. § 1391(b). This case is TRANSFERRED to the United States District Court for the Eastern District of California. See 28 U.S.C. § 1406(a). In view of the transfer, the court will not rule upon plaintiff's motions. IT IS SO ORDERED. Dated: October 19, 2009. PHYLLIS J. HAMILTON United States District Judge

United States District Court

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For the Northern District of California

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