Pittman v. Kennedy et al

Filing 2

ORDER Dismissing Civil Action Without Prejudice for Failing to Pay Filing Fee and/or Failing to Move to Proceed In Forma Pauperis; and Dismissing Civil Action for Lack of Proper Venue. Signed by Judge M. James Lorenz on 1/20/2009. (All non-registered users served via U.S. Mail Service).(mjj) Modified on 1/21/2009 to correct signature date. NEF regenerated (mjj).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Plaintiff, a state inmate currently incarcerated at California Rehabilitation Center located Defendants.
WILLIAM KENNEDY, et al.,

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

WILBUR LANN PITTMAN, CDCR #F-64353 Plaintiff,

Civil No.

09-0087 L (WMc)

ORDER: (1) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) AND/OR FAILING TO MOVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a); and (2) DISMISSING CIVIL ACTION FOR LACK OF PROPER VENUE PURSUANT TO 28 U.S.C. § 1391(b) AND 28 U.S.C. § 1406(a)

vs.

24 in Norco, California, and proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. 25 § 1983. 26 I. 27 Failure to Pay Filing Fee or Request IFP Status All parties instituting any civil action, suit or proceeding in a district court of the United

28 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28
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1 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay this filing fee only if 2 the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). 3 See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 4 1176, 1177 (9th Cir. 1999). 5 Here, Plaintiff has neither prepaid the $350 filing fee required to commence a civil action, 6 nor submitted a Motion to Proceed IFP. Therefore, this case is subject to immediate dismissal 7 pursuant to 28 U.S.C. § 1914(a). 8 II. 9 Lack of Proper Venue An initial review of this action reveals that Plaintiff's case lacks proper venue. Venue

10 may be raised by a court sua sponte where the defendant has not yet filed a responsive pleading 11 and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). 12 "A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except 13 as otherwise provided by law, be brought only in (1) a judicial district where any defendant 14 resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part 15 of the events or omissions giving rise to the claim occurred, or a substantial part of property that 16 is the subject of the action is situated, or (3) a judicial district in which any defendant may be 17 found, if there is no district in which the action may otherwise be brought." 28 U.S.C. 18 § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 19 834, 842 (9th Cir. 1986). "The district court of a district in which is filed a case laying venue 20 in the wrong division or district shall dismiss, or if it be in the interests of justice, transfer such 21 case to any district in or division in which it could have been brought." 28 U.S.C. § 1406(a). 22 Here, Plaintiff is incarcerated at the California Rehabilitation Center in Norco, California 23 and he alleges that events which give rise to his claims occurred in Norco, California. (See 24 Compl. at 1-3.) The only named Defendants are alleged to reside at Norco. (Id. at 1-2.) Norco 25 is located in Riverside County. No defendant is alleged to reside in the Southern District. See 26 28 U.S.C. 84(d) ("The Southern District [of California] comprises the counties of Imperial and 27 San Diego."). 28 / / /
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Thus, venue may be proper in the Central District of California, Eastern Division,

2 pursuant to 28 U.S.C. § 84(c)(1) but not in the Southern District of California.1 See 28 U.S.C. 3 § 1391(b); Costlow, 790 F.2d at 1488. 4 III. 5 6 Conclusion and Order For the reasons set forth above, the Court hereby: DISMISSES this action sua sponte without prejudice for failing to pay the $350 filing IT IS FURTHER ORDERED that this case is DISMISSED without prejudice for lack The Clerk of Court shall close the file.

7 fee or file a Motion to Proceed IFP pursuant to 28 U.S.C. §§ 1914(a) and 1915(a); and 8 9 of proper venue pursuant to 28 U.S.C. §§ 1391(b) and 1406(a). 10 11 12 DATED: January 20, 2009 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint in the Central District of California, along with a Motion to Proceed IFP, his Complaint will
be subject to the sua sponte screening provisions of 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
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M. James Lorenz United States District Court Judge

1

Plaintiff is cautioned, however, that should he elect to proceed with these claims by filing a

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