McKinney v. Sheriff of Whitley County Indiana The Office of the et al

Filing 92

OPINION AND ORDER: The Court GRANTS 87 McKinney's motion to transfer venue. The Clerk of the Court is directed to randomly reassign this case to another Judge within the Northern District of Indiana. Case reassigned to Judge Joseph S Van Bokkelen for all further proceedings. Judge William C Lee no longer assigned to case. Signed by Judge William C Lee on 11/9/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TERRANCE S. McKINNEY
Plaintiff,
v.
THE OFFICE OF THE SHERIFF OF
WHITLEY COUNTY, ET AL.,
Defendants.

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CIVIL NO. 1:15cv79

OPINION AND ORDER
This matter is before the court on a motion to change venue, filed by the plaintiff,
Terrance S. McKinney (“McKinney”), on August 29, 2018. The defendants, the Office of the
Sheriff of Whitley County, and Sheriff Mark Hodges (“Hodges”), in his individual capacity,
responded to the motion on October 3, 2018, to which McKinney replied on October 10, 2018.
For the following reasons, the motion will be granted.
Discussion
McKinney presents the motion in simple terms. Defendant Mark Hodges, former Sheriff
of Whitley County, is currently employed as a security guard in the courthouse of the United
States District Court for the Northern District of Indiana, Fort Wayne Division. McKinney
desires to avoid any potential negative effect on his rights that might result from the fact that
Hodges works as a security guard in the building in which McKinney’s case will be tried.
28 U.S.C. § 1404 (b) provides in pertinent part as follows:
Upon motion, consent or stipulation of all parties, any action, suit or proceeding
of a civil nature or any motion or hearing thereof, may be transferred, in the
discretion of the court, from the division in which pending to any other division in
the same district.

The defendants, in response, claim that McKinney has failed to meet his burden of showing that
transfer is proper. However, as transfer of venue is discretionary with the district court,
McKinney’s burden is very minimal. McKinney has stated a valid reason for transferring the
case, and that is all that is required. Inexplicably, defendants spend four pages of their brief
discussing the requirements of §1404(a), when that section is not even invoked by McKinney.
Defendants then spend one short paragraph purportedly discussing §1404(b). However, the case
they cite, Kingsley v. Dixon Old People’s Home Fund, Inc., 1996 WL 417548 (N.D. Ill. 1996),
concerns § 1404(a) and does not even discuss §1404(b).
Defendants appear to make the argument that venue is not proper in any other division of
this district “under the Northern District’s venue designations.” However, although the court
has general orders regarding the assignment of cases within the district (N.D. Ind. L.R. 40-1),
venue is proper in a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located. 28 U.S.C. § 1391. There has been no allegation that
the Northern District is not the proper judicial district for this case. As a case may be brought in
any division of a proper judicial district, it follows that any division of this court may receive
transfer of this case pursuant to § 1404(b).
It is readily apparent that this case should be transferred. Defendant Hodges is employed
in a very sensitive position in this court, as he is a security guard charged with the task of
guarding the life of the undersigned judicial officer. Clearly, at least the appearance of
impropriety arises if the case remains in this division. Further, as McKinney points out, Hodges
and his fellow security guards have the very first contact with potential jurors and have contact
with the jurors throughout the proceedings. This close contact raises the concern that an
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inadvertent statement, or even a facial expression, could influence the jury. Therefore, out of an
abundance of caution, the motion to transfer will be granted. The court notes that McKinney is
only requesting that the trial of this case be transferred. However, the concerns raised by
McKinney regarding the trial are equally applicable to other areas of the case. Due to the
relationship of judicial officers and their security guards, the appearance of impropriety clouds
the entire case. Accordingly, the entire case will be transferred.
Conclusion
Based on the foregoing, McKinney’s motion to transfer venue [DE 87] is hereby
GRANTED. The Clerk of the Court is directed to randomly reassign this case to another Judge
within the Northern District of Indiana.
Entered: November 9, 2018.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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