Konrath v. Loma Linda University Medical Center
Filing
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ORDER DISMISSING CASE (1) For Failing To Pay Filing Fee And/Or Failing To Move To Proceed In Forma Pauperis And (2) For Lack Of Proper Venue. Signed by Judge William Q. Hayes on 5/3/2017. (All non-registered users served via U.S. Mail Service.) (mdc)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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GREGORY KONRATH,
Inmate #254068,
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ORDER DISMISSING CIVIL
ACTION:
Plaintiff,
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Case No.: 3:16-cv-03013-WQH-JMA
vs.
1) 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)
LOMA LINDA UNIVERSITY
MEDICAL CENTER,
Defendant.
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AND
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2) FOR LACK OF PROPER VENUE
PURSUANT TO 28 U.S.C. § 1391(b)
AND § 1406(a)
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Plaintiff, a prisoner currently incarcerated at Westville Correctional Facility in
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Westville, Indiana, and proceeding pro se, has filed a civil rights complaint pursuant to
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42 U.S.C. § 1983 (ECF No. 1). Plaintiff seeks to sue the Loma Linda University Medical
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Center, in Loma Linda, California, for discriminating against him and failing to
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accommodate his “Type II bi-polar disorder” while he was employed as an orthopedic
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3:16-cv-03013-WQH-JMA
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surgeon there almost twenty years ago, in July 1998. (ECF No. 1 at 1-3).
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I.
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Failure to Pay Filing Fee or Request In Forma Pauperis (“IFP”) Status
All parties instituting any civil action, suit or proceeding in a district court of the
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United States, except an application for writ of habeas corpus, must pay a filing fee of
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$400. See 28 U.S.C. § 1914(a).1 An action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, as Plaintiff is a prisoner in this
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case, even if he is granted leave to commence his suit IFP, he will remain obligated to
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pay the entire filing fee in “increments[,]” see Williams v. Paramo, 775 F.3d 1182, 1185
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(9th Cir. 2015), regardless of whether his case is ultimately dismissed. See 28 U.S.C.
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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
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Plaintiff has not prepaid the $400 in filing and administrative fees required to
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commence this civil action and he has not filed a Motion to Proceed IFP which complies
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with 28 U.S.C. § 1915(a)(1) and (2). Therefore, his case cannot yet proceed. See 28
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U.S.C. § 1914(a); Andrews, 493 F.3d at 1051.
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II.
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Venue
Venue may be raised by a court sua sponte where the defendant has not yet filed a
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responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d
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1486, 1488 (9th Cir. 1986). Section 1391(b) of Title 28 of the U.S. Code provides, in
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pertinent part, that a “civil action may be brought in – (1) a judicial district in which any
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defendant resides, if all defendants are residents of the State in which the district is
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located; [or] (2) a judicial district in which a substantial part of the events or omissions
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giving rise to the claim occurred, or a substantial part of property that is the subject of the
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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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3:16-cv-03013-WQH-JMA
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action is situated[.]” 28 U.S.C. § 1391(b); Costlow, 790 F.2d at 1488; Decker Coal Co. v.
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Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a
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district in which is filed a case laying venue in the wrong division or district shall
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dismiss, or if it be in the interests of justice, transfer such case to any district or division
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in which it could have been brought.” 28 U.S.C. § 1406(a).
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While the Court would normally grant Plaintiff an opportunity to either pay the full
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filing fee or file a Motion to Proceed IFP, an initial review of his Complaint further
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reveals that he has filed his case in the wrong district. Plaintiff is currently incarcerated in
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Indiana, and he seeks to sue the Loma Linda University Medical based on incidents that
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took place there. (ECF No. 1 at 1).
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The City of Loma Linda is located in the County of San Bernardino, California,
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and it is within the Central District of California, Eastern Division. See 28 U.S.C.
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§ 84(c)(1). See also 28 U.S.C. § 84(d) (“The Southern District [of California] comprises
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the counties of Imperial and San Diego.”); 28 U.S.C. § 1391(b); Costlow, 790 F.2d at
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1488. Because no claim is alleged to have arisen in, and no Defendant is alleged to reside
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in either San Diego or Imperial County, the Court finds dismissal of the action without
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prejudice based on lack of proper venue is also appropriate. See 28 U.S.C. § 1406(a).
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III.
Conclusion and Order
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Accordingly, the Court DISMISSES this action sua sponte without prejudice
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based on Plaintiff’s failure to pay the $400 filing fee required by 28 U.S.C. § 1914(a), his
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failure to file a Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a), and for lack of
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proper venue pursuant to 28 U.S.C. § 1391(b) and § 1406(a).
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IT IS SO ORDERED.
Dated: May 3, 2017
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3:16-cv-03013-WQH-JMA
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