Stine v. Weeks

Filing 5

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/29/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02360-BNB

MIKEAL GLENN STINE,
Plaintiff,
v.
CHARLES THOMAS WEEKS II, United States Marshal (JPAT),
JOHN DOE 1,
JOHN DOE 2, and
JOHN DOE 3,
Defendants.

ORDER OF DISMISSAL

Mikeal Glenn Stine is in the custody of the United States Bureau of Prisons
(BOP)at the Medical Center for Federal Prisoners in Springfield, Missouri. On August
15, 2014, Mr. Stine initiated an action in the United States District Court for the Central
District of California (Central District of California) claiming excessive force and
destruction of legal papers by the U.S. Marshals. Named Defendants are U.S. Marshals
who are located in Oklahoma City, Oklahoma. The alleged events, however, took place
in Colorado Springs, Colorado; Ontario, California; and Oklahoma City, Oklahoma.
The Central District of California transferred the case to this Court on August 22,
2014, pursuant to 28 U.S.C. § 1406(a) because all Defendants reside in Oklahoma City,
Oklahoma, and the events or omissions giving rise to the claim of excessive force began
in Colorado and continued in Oklahoma. The Central District further found that despite
Defendants’ residence, the fact that at least some of the events occurred in Colorado,

and Plaintiff will be returning to Colorado for his pending criminal case, militates in favor
of this case being heard in the District of Colorado.
Plaintiff is enjoined from filing a civil complaint in this Court unless he complies
with the requirements of his filing restrictions under Stine v. Lappin, et al., No. 07-cv01839-WYD-KLM, ECF No. 344 at 30-32 (D. Colo. Sept. 1, 2009). The Complaint does
not comply with the filing restrictions, and any claims, regardless of proper venue, will
not be considered by this Court.
The events that are not subject to proper venue in this Court, because they took
place in Ontario, California, or Oklahoma City, Oklahoma, shall be dismissed, or if in the
interest of justice, transferred to any other district where they may have been brought.
See 28 U.S.C. 1406(a). The Court finds that transfer of this case to a federal district
court where venue also is proper is not in the interest of justice. Plaintiff is subject to 28
U.S.C. § 1915(g) filing restrictions, see Stine v. Lappin, et al., No. 07-cv-01839-WYDKLM, ECF No. 212 (D. Colo. Sept. 1, 2009), and he has failed either to submit a request
to proceed pursuant to § 1915 and show imminent danger of serious physical injury or in
the alternative pay the $400 filing fee in full. This Court, therefore, will refrain from
transferring the case to the United States District Court for the Western District of
Oklahoma, where events also took place that give rise to Plaintiff’s alleged cause of
action, and where the defendants are located, and will dismiss this case in part pursuant
to § 1406(a).
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962).
If Plaintiff files a notice of appeal he must pay the full $505 appellate filing fee or file a

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motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth
Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Court will not consider Plaintiff’s claims where venue properly
lays in this Court, because Plaintiff has failed to comply with the filing restrictions set
forth in Stine v. Lappin, et al., No. 07-cv-01839-WYD-KLM, ECF No. 344 at 30-32 (D.
Colo. Sept. 1, 2009). It is
FURTHER ORDERED that those claims where venue properly lays in another
district court will be dismissed without prejudice, pursuant to 28 U.S.C. § 1406(a),
because a transfer of these claims to another federal district court is not in the interest of
justice. It is
FURTHER ORDERED that Plaintiff is denied leave to proceed in forma pauperis
on appeal.
DATED at Denver, Colorado, this 29th day of

August

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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