Molinero v. Homeland Security, Department Of et al
Filing
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TRANSFER ORDER. Signed by JUDGE LESLIE E. KOBAYASHI on 07/10/2015. (1) The Clerk is DIRECTED to send a copy of this Order and Plaintiff's pleadings to the United States Attorney for the District of Hawaii. This SHAL L NOT constitute service of the complaint. IF the United States objects to this court's determination regarding transfer of this action, and represents that it would waive the defense of improper venue if properly served, it SHALL NOTIFY the cou rt on or before July 24,2015. Such notice shall not constitute a responsive pleading, or a waiver of service of the complaint and summons.(2) If the United States Attorney for the District of Hawaii does not respond on or before July 24, 2015, th e Clerk is DIRECTED to immediately TRANSFER this action to the United States District Court for the Northern District of Illinois.(3) The court will take no action on Molinero's in forma pauperis application at this time. The United States D istrict Court for the Northern District of Illinois is better positioned to address this request after this action has been transferred to that district. (eps )CERTIFICATE OF SERVICEParticipants regis tered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Copies provided to USA as directed by this Order via Inter-Office Mail Box Petitioner served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAIR RODRIGUEZ MOLINERO, A075- ) CIV. NO. 15-00235 LEK/RLP
614-869,
)
) TRANSFER ORDER
)
Plaintiff,
)
vs.
)
)
DEP’T OF HOMELAND SECURITY, et )
)
al.,
)
)
Defendants.
______________________________ )
TRANSFER ORDER
Pro se Plaintiff Hair Rodriguez Molinero filed this civil
rights action on July 2, 2015, “on behalf of the thousands of
detainees and their families, which are suffering all the abuse,
prejudice and discrimination,” while in the custody of the United
States Immigration and Customs Enforcement Agency (“ICE”).
Compl., Doc. No. 1.
Molinero was convicted in the District of
Hawaii on November 17, 2008, of conspiracy to possess with the
intent to distribute 50 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846.
States v. Molinero, Cr. No. 08-00155 SOM.
See United
He was released from
the Federal Bureau of Prisons’ (“BOP”) custody on or about
July 10, 2014, however.
See BOP Inmate Locator.1
He is now in
ICE custody at the McHenry County Jail, located in Woodstock,
1
Avail.: http://www.bp.gov/inmateloc. (visited 07/07/2015).
Illinois, pursuant to an order of removal.
See Compl., Doc. No.
1; see also ICE Online Detainee Locator System.2
Molinero alleges that he and other immigration detainees and
their families are subjected to inadequate mental and medical
health care, cruel and unusual punishment, crowded living
conditions, physical abuse, and denial of grievance procedures.
He seeks legislation to create a new law, “‘T.O.D.O.S.’ (The
Other Detainee Offer Status,” to govern the civil detention of
those who have been ordered removed from the United States,
including himself.
Compl., Request for Relief, Doc. No. 1.
Molinero’s Complaint is nearly identical to one filed recently in
this court by Dr. Felix Guzman Rivadeneira, a fellow customs
detainee confined at the McHenry County Jail.
See Rivadeneira v.
Dep’t of Homeland Security, Civ. No. 15-00231 LEK (D. Haw.
June 15, 2015) (dismissed without prejudice July 6, 2015, for
failure to state a claim and improper venue).
Because Molinero is in custody of ICE and names only federal
agencies and officials, the court construes this action as
asserting claims under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
In addition to the
creation of a new law and concomitant policies, Molinero seeks
damages, and declaratory and injunctive relief.
2
For the
Avail.: https://locator.ice.gov. (visited 07/07/2015).
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following reasons, this action shall be TRANSFERRED to the United
States District Court for the Northern District of Illinois.
I.
DISCUSSION
When jurisdiction is not premised solely on diversity of
citizenship, as here, 28 U.S.C. § 1391(b) applies to determine
proper venue.
Section 1391(b) provides that a civil action may
“be brought in
(1) a judicial district in which any
defendant resides, if all defendants are
residents of the State in which the district
is located;
(2) a judicial district in which a
substantial part of the events or omissions
giving rise to the claim occurred, or a
substantial part of property that is the
subject of the action is situated; or
(3) if there is no district in which an
action may otherwise be brought as provided
in this section, any judicial district in
which any defendant is subject to the court’s
personal jurisdiction with respect to such
action.
28 U.S.C. § 1391(b).
Molinero has been confined for approximately a year at the
McHenry County Jail, in Woodstock, Illinois, as an immigration
and customs detainee.
He complains about conditions of
confinement that occurred or are occurring in the McHenry County
Jail, which is located within the jurisdiction of the United
States District Court for the Northern District of Illinois.
Molinero does not explain why he filed this suit in the District
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of Hawaii and alleges no facts suggesting a nexus between his
civil rights claims regarding the McHenry County Jail and this
District.
The Northern District of Illinois is the judicial
district in which the events at issue took place, the likely
defendants are located, and where Molinero is presently in
custody.
Venue for this action therefore lies in the Northern
District of Illinois.
“The district court of a district in which is filed a case
laying venue in the wrong division or district shall dismiss, or
if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.”
U.S.C. § 1406(a).
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In the interest of justice, the court ORDERS
the Clerk of Court to TRANSFER this action to the United States
District Court for the Northern District of Illinois where venue
is proper.3
The court will allow the United States Attorney’s
Office for the District of Hawaii the opportunity to notify the
3
The court dismissed Rivadeneira, Civ. No. 15-00321 LEK
rather than transferring the action. Doc. No. 5. Rivadeneira,
however, had filed identical complaints in 52 districts, several
of which had been transferred to the Northern District of
Illinois from other districts. See PACER Case Locator, avail:
http://pacer.psc.uscourts.gov.. These transferred cases
protected Rivadeneira’s claims from outright dismissal and to
determination in the appropriate venue.
Molinero, however, has not filed duplicative cases in other
federal courts and has not had the opportunity to present his
claims in the proper venue. The interests of justice are
therefore better served by transferring Molinero’s case rather
than dismissing it.
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court whether, if properly served, it would waive the affirmative
defense of improper venue.
See Costlow v. Weeks, 790 F.2d 1486,
1488 (9th Cir. 1986) (holding the district court may raise
defective venue sua sponte, if Defendants are given the
opportunity to waive the defense of improper venue).
Such notice
shall not constitute a responsive pleading, or a waiver of
service of the complaint and summons.
II.
(1)
CONCLUSION
The Clerk is DIRECTED to send a copy of this Order and
Plaintiff’s pleadings to the United States Attorney for the
District of Hawaii.
complaint.
This SHALL NOT constitute service of the
IF the United States objects to this court’s
determination regarding transfer of this action, and represents
that it would waive the defense of improper venue if properly
served, it SHALL NOTIFY the court on or before July 24,2015.
Such notice shall not constitute a responsive pleading, or a
waiver of service of the complaint and summons.
(2)
If the United States Attorney for the District of
Hawaii does not respond on or before July 24, 2015, the Clerk is
DIRECTED to immediately TRANSFER this action to the United States
District Court for the Northern District of Illinois.
(3)
The court will take no action on Molinero’s in forma
pauperis application at this time.
The United States District
Court for the Northern District of Illinois is better positioned
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to address this request after this action has been transferred to
that district.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 10, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
Molinero v. Dep’t of Homeland Security, 1:15-00253 LEK/bmk; psa Trsf 2015; J:\PSA
Draft Ords\LEK\Molinero 15-253 lek (ICE detainee).wpd
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