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

Filing 7

ORDER dismissing case without prejudice based on its lack of proper venue pursuant to 28 U.S.C. 1391(b) and 1406(a). Plaintiff's 2 Motion for Leave to Proceed in forma pauperis, 4 Motion to Appoint Counsel, 6 Motion for TRO are denied without prejudice as moot. Signed by Judge Larry Alan Burns on 8/29/14. (All non-registered users served via U.S. Mail Service)(kas)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

DAVID ROWLAND YOUNG,
CDCR #V-28942,

Civil No. 14cv1011 LAB (JMA)
Plaintiff,

13

(1) DISMISSING CIVIL
ACTION WITHOUT
PREJUDICE FOR LACK OF
PROPER VENUE PURSUANT
TO 28 U.S.C. § 1391(b) AND
28 U.S.C. § 1406(a)

14
15

vs.

16
17
18
19
20

ORDER:

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.

21

AND
(2) DENYING MOTIONS TO
PROCEED IFP, APPOINT
COUNSEL AND FOR
TEMPORARY RESTRAINING
ORDER AS MOOT
[Doc. Nos. 2, 4, 6]

22
23

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

24

Prison (“CEN”) in Imperial, California, and proceeding in pro se, has filed a civil rights

25

complaint (“Compl.) pursuant to 42 U.S.C. § 1983 (Doc. No. 1).

26

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

27

instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

28

U.S.C. § 1915(a) (Doc. No. 2).
I:\Everyone\_EFILE-PROSE\LAB\14cv1011-venue-dsm.wpd

1

14cv1011 LAB (JMA)

Plaintiff has also filed a Motion to Appoint Counsel (Doc. No. 4), and a Motion

1
2

for a Temporary Restraining Order (Doc. No. 6).

3

I.

Venue

4

Venue may be raised by a court sua sponte where the defendant has not yet filed

5

a responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d

6

1486, 1488 (9th Cir. 1986).

7

Section 1391(b) of Title 28 of the U.S. Code provides that a “civil action may be

8

brought in–(1) a judicial district in which any defendant resides, if all defendants are

9

residents of the State in which the district is located; [or] (2) a judicial district in which

10

a substantial part of the events or omissions giving rise to the claim occurred, or a

11

substantial part of property that is the subject of the action is situated[.]” 28 U.S.C.

12

§ 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth Edison Co.,

13

805 F.2d 834, 842 (9th Cir. 1986). “The district court of a district in which is filed a case

14

laying venue in the wrong division or district shall dismiss, or if it be in the interests of

15

justice, transfer such case to any district or division in which it could have been

16

brought.” 28 U.S.C. § 1406(a).

17

While Plaintiff is currently incarcerated at CEN, his Complaint seeks damages and

18

injunctive relief against the California Department of Corrections and Rehabilitation’s

19

(“CDCR”) Health Care Services Office of Third Level Appeals, and a “Chief Appeals

20

Coordinator” named Zamora, who is alleged to reside in Sacramento, California. See

21

Compl. at 2. In addition, Plaintiff names the Chief Medical Officer of Ironwood State

22

Prison (“ISP”), Dr. Lee, and two other “unnamed” doctors as Defendants,1 based on

23

claims that they denied his right to “proper and professional care,” and caused him to

24

suffer “physical pain, damage, and injury that was not necessary” while he was

25

incarcerated at ISP “for four years.” Id. at 7.

26

///

27
28

Plaintiff also mentions a “Doctor Lewis” at Ironwood State Prison in the body
of his Complaint, but Lewis is not named as a Defendant. See Compl. at 6, 7.
1

I:\Everyone\_EFILE-PROSE\LAB\14cv1011-venue-dsm.wpd

2

14cv1011 LAB (JMA)

1

While Plaintiff is now incarcerated at CEN, his Complaint names no CEN officials

2

as Defendants, and it contains no allegations against any CEN officials related to the

3

denial of his medical care. Indeed, Plaintiff admits he was provided a “thorough physical

4

examination” at CEN on September 22, 2013, diagnosed with a club foot, referred to an

5

orthopedic specialist, provided with an “elevated boot,” and recommended for surgery

6

on his right knee to repair a torn ACL since being transferred to CEN from ISP. Id. at

7

4-5. He makes no allegations that any CEN official has violated his constitutional rights;

8

instead, he appears to have filed suit here in order to obtain copies of his medical

9

records, and to obtain discovery related to his past treatment at ISP. See Pl.’s Mot. for

10

TRO (Doc. No. 6) at 2-3.

11

Thus, it appears that the substantial part of the events or omissions which might

12

give rise to a federal claim occurred at ISP, where Dr. Lee is employed, where Plaintiff

13

was previously incarcerated, and where his inmate health care grievances are alleged to

14

have been denied in 2012. See Compl. at 2, 6-10. at 1-2. ISP is located in Blythe,

15

California, which is in Riverside County. Therefore, venue appears proper in the Central

16

District of California, Eastern Division, pursuant to 28 U.S.C. § 84(c)(1), but not in the

17

Southern District of California, pursuant to 28 U.S.C. § 84(d) (“The Southern District

18

[of California] comprises the counties of Imperial and San Diego.”). See 28 U.S.C.

19

§ 1391(b); Costlow, 790 F.2d at 1488.

20

II.

Conclusion and Order

21

Accordingly, IT IS ORDERED that:

22

1) Plaintiff’s Complaint in this civil action is DISMISSED without prejudice

23

based on its lack of proper venue pursuant to 28 U.S.C. § 1391(b) and § 1406(a); and,

24

2) Plaintiff’s Motions to Proceed IFP, to Appoint Counsel, and for a Temporary

25

Restraining Order (Doc. Nos. 2, 4, 6) are DENIED without prejudice as moot.

26

DATED: August 29, 2014

27
HONORABLE LARRY ALAN BURNS
United States District Judge

28

I:\Everyone\_EFILE-PROSE\LAB\14cv1011-venue-dsm.wpd

3

14cv1011 LAB (JMA)