LOCKETT v. LOWELL CORRECTIONAL INSTITUTION

Filing 3

REPORT AND RECOMMENDATION re 1 Complaint filed by SHARON LOCKETT : It is recommended transfer of this action to the United States District Court for the Middle District of Florida, Orlando Division, for all further proceedings.. Signed by MAGISTRATE JUDGE ALLAN KORNBLUM on 4/22/2009. Internal deadline for referral to district judge if objections are not filed earlier: 5/20/2009. (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

SHARON LOCKETT, Plaintiff, vs. LOWELL CORRECTIONAL INSTITUTION, Defendant. / REPORT AND RECOMMENDATION Plaintiff, proceeding pro se, has filed a "complaint" alleging that she has been assaulted and needs protection from unnamed staff and others at Lowell Correctional Institution. (Doc. 1). Because Lowell C. I. is located in the Middle District of Florida, as would be any of the Defendants once they are named, the proper forum for this action pursuant to 28 U.S.C. § 1391(b) and 28 U.S.C. § 89(b) is in the United States District Court for the Middle District of Florida, Orlando Division. A federal district court has the authority under 28 U.S.C. § 1406(a) to transfer a case to another district or division "in which it could have been brought." A court may raise the issue of defective venue sua sponte, but should not dismiss an improperly filed case for lack of venue without giving the parties an opportunity to respond. Lipofsky v. New York State Workers Comp. Bd., 861 F.2d 1257, 1259 (11th Cir. 1988). The Lipofsky court did not place the same limitations on the court's ability to transfer a case to the appropriate forum pursuant to 28 U.S.C. § 1404(a). See Lipofsky, 861 F.2d at CASE NO. 1:09CV96-SPM/AK

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1259, n. 2. Thus, it is recommended that the case be transferred rather than dismissed. There is no need for a hearing on this transfer. Cf. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986) with Starnes v. McGuire, 512 F.2d 918, 934 (D.C. Cir. 1974). In light of the foregoing, and pursuant to 28 U.S.C. §§ 1404(a) and 1406(a), the undersigned respectfully RECOMMENDS transfer of this action to the United States District Court for the Middle District of Florida, Orlando Division, for all further proceedings. IN CHAMBERS at Gainesville, Florida, this 22nd day of April, 2009.

s/ A. KORNBLUM ALLAN KORNBLUM UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.

No. 1:09CV96-SPM/AK