Young v. California Correctional Health Care Services, Office of Third Level Appeals Health Care et al

Filing 10

ORDER denying plaintiff's 9 Motion for Reconsideration, and this action remains dismissed without prejudice for lack of proper venue. The court further certifies that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). The Clerk shall close the file. Signed by Judge Larry Alan Burns on 11/21/14. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID ROWLAND YOUNG,
CDCR #V-28942,

Civil No. 14cv1011 LAB (JMA)
Plaintiff,

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vs.

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CALIFORNIA CORRECTIONAL HEALTH
CARE SERVICES, Office of Third Level
Appeals Health Care; L.D. ZAMORA, Chief
Appeals Coordinator; Dr. LEE, Chief
Medical Officer, Ironwood State Prison;
UNNAMED CDCR Employees, Doctors,
Defendants.

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ORDER DENYING
PLAINTIFF’S MOTION
FOR RECONSIDERATION
(Doc. No. 9)

David Rowland Young (“Plaintiff”), currently incarcerated at Centinela State

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21 Prison (“CEN”) in Imperial, California, and proceeding in pro se, filed this civil rights
22 action pursuant to 42 U.S.C. § 1983 (Doc. No. 1) in April, 2014.
23 I.

Procedural History

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Plaintiff did not prepay the civil filing fees required by 28 U.S.C. § 1914(a);

25 instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
26 § 1915(a) (Doc. No. 2). Plaintiff later filed a Motion to Appoint Counsel (Doc. No. 4)
27 and a Motion for a Temporary Restraining Order (Doc. No. 6).
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On August 29, 2014, however, the Court sua sponte dismissed the action without

2 prejudice for lack of proper venue pursuant to 28 U.S.C. § 1391(b) and § 1406(a). See
3 Aug. 29, 2014 Order (Doc. No. 7).
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Specifically, the Court noted that:

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While Plaintiff is currently incarcerated at CEN, his Complaint seeks
damages and injunctive relief against the California Department of
Corrections and Rehabilitation’s (“CDCR”) Health Care Services Office of
Third Level Appeals, and a “Chief Appeals Coordinator” named Zamora,
who is alleged to reside in Sacramento, California. See Compl. at 2. In
addition, Plaintiff names the Chief Medical Officer of Ironwood State
Prison (“ISP”), Dr. Lee, and two other “unnamed” doctors as Defendants,1
based on claims that they denied his right to “proper and professional care,”
and caused him to suffer “physical pain, damage, and injury that was not
necessary” while he was incarcerated at ISP “for four years.” Id. at 7.

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11 Id. at 2.
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Because Plaintiff’s Complaint named no CEN officials as Defendants, contained

13 no allegations of constitutional wrongdoing committed by any CEN official, and instead
14 appeared to challenge the adequacy of his medical treatment at Ironwood State Prison
15 (“ISP”) where Plaintiff was incarcerated before his transfer to CEN, by medical officials
16 at ISP, including Dr. Lee, who was alleged to be ISP’s Chief Medical Officer, the Court
17 found that “the substantial part of the events or omissions which might give rise to a
18 federal claim occurred at ISP,” and that venue therefore appeared proper in the Central
19 District of California, Eastern Division, pursuant to 28 U.S.C. § 84(c)(1), and not in the
20 Southern District of California, pursuant to 28 U.S.C. § 84(d). Id. at 3.
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Because Plaintiff’s Complaint was filed in the wrong district, the Court simply

22 denied his Motions to Proceed IFP, to Appoint Counsel, and for a Temporary Restraining
23 Order as moot, and dismissed his case without prejudice pursuant to 28 U.S.C. § 1406(a).
24 Id.
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Plaintiff also mentioned a “Doctor Lewis” at Ironwood State Prison in the body
of his Complaint, but Lewis was not named as a Defendant. See Compl. at 6, 7.
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1 II.

Motion for Reconsideration

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Plaintiff has since filed a Motion for Reconsideration (Doc. No. 9). He argues

3 venue is proper in the Southern District because he, the Plaintiff, is the “substantial part
4 of property . . . which is the subject of the action,” and because he used the Latin phrase
5 “et al.” in the caption of his Complaint to indicate “there are many defendants here at
6 Centinela and at Ironwood State Prison,” who “may live in the City of Imperial,” because
7 it is “only one hour away” from ISP. See Pl.’s Mot. at 2-3, 5.
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The Federal Rules of Civil Procedure do not expressly provide for motions for

9 reconsideration. However, the Court may reconsider matters previously decided under
10 Rule 59(e) or Rule 60(b). See Osterneck v. Ernst & Whinney, 489 U.S. 169, 174 (1989);
11 In re Arrowhead Estates Development Co., 42 F.3d 1306, 1311 (9th Cir. 1994). In
12 Osterneck, the Supreme Court stated that a ruling may be re-considered under Rule 59(e)
13 motion where it involves “‘matters properly encompassed in a [previous] decision on the
14 merits.’” 489 U.S. at 174 (quoting White v. New Hampshire Dep’t of Employ’t Sec., 455
15 U.S. 445, 451 (1982)). Reconsideration is generally appropriate only if the district court
16 “(1) is presented with newly discovered evidence, (2) committed clear error or the initial
17 decision was manifestly unjust, or (3) if there is an intervening change in controlling
18 law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (citations
19 omitted).
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As noted above, the Court’s August 29, 2014 Order simply dismissed Plaintiff’s

21 case without prejudice to his refiling it in the proper venue (Doc. No. 7). Plaintiff bears
22 the burden of showing that venue is proper in the chosen district. Piedmont Label Co.
23 v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979); see also Hope v. Otis
24 Elevator Co., 389 F. Supp. 2d 1235, 1243 (E.D. Cal. 2005) (“Plaintiff has the burden of
25 proving that venue is proper in the district in which the suit was initiated,” citing Airola
26 v. King, 505 F. Supp. 30, 31 (D. Ariz. 1980)). “When there are multiple parties and/or
27 multiple claims in an action, the plaintiff must establish that venue is proper as to each
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1 defendant and as to each claim.” Kelly v. Echols, Civ. No. F05118 AWI SMS, 2005 WL
2 2105309, *11 (E.D. Cal. Aug. 30, 2005).
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While Plaintiff resides at CEN, which is located in the Southern District, the court

4 looks to 28 U.S.C. § 1391(b) to determine the proper venue. Section 1391(b) does not
5 depend on Plaintiff’s residency; instead, it provides, in pertinent part, that a “civil action
6 may be brought in–(1) a judicial district in which any defendant resides, if all defendants
7 are residents of the State in which the district is located;” or “(2) a judicial district in
8 which a substantial part of the events or omissions giving rise of the claim occurred, or
9 a substantial part of property that is subject of the action is situated.” 28 U.S.C.
10 § 1391(b).
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Plaintiff first argues that he is the “property’ which is the subject of the action, and

12 that therefore, venue is proper wherever he is situated. See Pl.’s Mot. at 2. Plaintiff’s
13 Complaint seeks damages and injunctive against prison officials pursuant to 42 U.S.C.
14 § 1983 based on alleged violations of his right to “proper and professional [medical]
15 care” at ISP. See Compl. at 7. In a tort action like Plaintiff’s, the court looks primarily
16 to the “locus of the injury” to determine whether venue is proper under § 1391. See
17 Myers v. Bennett Law Offices, 238 F.3d 1068, 1076 (9th Cir. 2001); see also Open Road
18 Ventures, LLC v. Daniel, 2009 WL 2365857, at *4 (N.D. Cal. July 30, 2009) (“Because
19 the injury occurred in California, venue is proper [t]here under 28 U.S.C. § 1391(a)(2).”);
20 Williamson v. American Mastiff Breeders Council, 2009 WL 634231, at *7 (D. Nev.
21 Mar. 6, 2009) (“If a harm suffered by a plaintiff is felt in a specific place, then that place
22 is one where the actions giving rise to the claim or occurrence happened.”); Mathis v.
23 County of Lyon, 2007 WL 3230142, at *1 (D. Nev. Oct. 24, 2007) (“The locus of the
24 injury has been deemed to be a substantial part of the events giving rise to the claim in
25 a tort action.”); City of Los Angeles v. County of Kern, 2006 WL 3073172, at *6 (C.D.
26 Cal. Oct. 24, 2006) (“Plaintiffs’ alleged injuries in the Central District constitute
27 substantial events giving rise to the cause of action, and thus venue is proper ....”).
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Next, Plaintiff argues that his use of the term “et al.” in the caption of his pleading

2 is sufficient to show venue is proper in the Southern District because “there are many
3 defendants . . . at CEN” who are yet unidentified, but who may be later added as parties
4 “after he amends his complaint.” See Pl.’s Mot. at 4-5. Plaintiff further suggests that
5 these persons may reside in San Diego or Imperial Counties because they are “only an
6 hour away” from ISP in Riverside. Id. at 3.
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Rule 10(a) of the Federal Rules of Civil Procedure requires that Plaintiff

8 specifically name each defendant in the caption of his complaint, however. See
9 FED.R.CIV.P. 10(a) (“The title of the complaint must name all the parties.”). And while
10 he may have attached the ambiguous phrase “et al.” to the caption in order to suggest an
11 intent to sue two other “unnamed CDCR employees” he describes only as “doctors,” he
12 failed to carry his burden to allege that those yet-to-be-identified employees reside in
13 either San Diego or Imperial Counties. See Compl. at 2; 28 U.S.C. § 84(d); Piedmont
14 Label Co., 598 F.2d at 496.
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Therefore, because the substantial part of the events or omissions giving rise to

16 Plaintiff’s claims of inadequate medical care are alleged to have occurred at ISP in
17 Riverside County, ISP is where he claims Dr. Lee is employed, and ISP is where Plaintiff
18 was incarcerated at the time he alleges to have been injured, the Court finds it was
19 correct to conclude that venue lie in the Central District of California, and not the
20 Southern District. And because Plaintiff’s Motion for Reconsideration offers no newly
21 discovered evidence, fails to show clear error, demonstrates no manifest injustice, and
22 does not identify any intervening change in controlling law which would alter the
23 Court’s August 29, 2014 conclusion, the Court finds it unavailing. See School Dist.
24 No. 1J, 5 F.3d at 1263.
25 III.

Conclusion and Order

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For the reasons explained above, Plaintiff’s Motion for Reconsideration (Doc. No.

27 9) is DENIED, and this action remains dismissed without prejudice for lack of proper
28 venue pursuant to 28 U.S.C. §§ 1391(b) and 1406(a).
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The Court further CERTIFIES that an IFP appeal would not be taken in good faith

2 pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445
3 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is
4 permitted to proceed IFP on appeal only if appeal would not be frivolous).
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The Clerk shall close the file.

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IT IS SO ORDERED.

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8 DATED: November 21, 2014
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HONORABLE LARRY ALAN BURNS
United States District Judge

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