Khouanmany v. United States Marshals et al
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until July 20, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action should not be transferred to the United States Dis trict Court for the Eastern District of California pursuant to 28 U.S.C. § 1406(a). Plaintiff's motions for appointment of counsel 13 & 16 are denied without prejudice. Plaintiff's motion for extension of time to provide financial information 15 is denied as moot. Signed by Magistrate Judge David J. Waxse on 06/15/17. Mailed to pro se party Vilaychith Khouanmany by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 17-3035-SAC-DJW
MALE UNITED STATES MARSHAL, et al.,
NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Vilaychith Khouanmany is hereby required to show good cause, in writing, to
the Honorable Sam A. Crow, United States District Judge, why this action should not be
transferred to the United States District Court for the Eastern District of California pursuant to 28
U.S.C. § 1406(a).
I. Nature of the Matter before the Court
This matter is a Bivens-type1 civil rights action filed pro se by a prisoner currently
incarcerated at Dublin-FCI in Dublin, California. Plaintiff alleges that on February 25, 2016, she
was arrested in Sacramento, California by the United States Marshals and booked at the
Sacramento County Jail. Plaintiff alleges that on all three of her court dates (February 26, 2016,
and March 1 and 11, 2016) she was forced to ride unsegregated to and from the Sacramento
County Jail to the District Court for the Eastern District of California, with twenty or more male
inmates. Plaintiff alleges that she was sexually assaulted by the male Marshals and the male
inmates. Plaintiff names as defendants: a Male United States Marshal; Caesar (LNU), a male
federal inmate; and the Sacramento County Sheriff’s Department.
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff seeks medical
insurance and expenses, compensatory damages and punitive damages. All underlying events
took place in or around Sacramento, California.
The Court granted Plaintiff leave to proceed in forma pauperis. (Doc. 18.) When a party
is proceeding in forma pauperis, 28 U.S.C. § 1915 requires the Court to screen the party’s
complaint. In screening Plaintiff’s Complaint, it appears as though personal jurisdiction and
venue are improper in this district. Plaintiff’s Complaint does not set forth any facts that would
support the Court’s exercise of personal jurisdiction over defendants.
In Trujillo v. Williams, the Tenth Circuit recognized that although § 1915 “contains no
express authorization for a dismissal for lack of personal jurisdiction or venue, . . . the district
court may consider personal jurisdiction and venue sue sponte . . . when the defense is obvious
from the face of the complaint and no further factual record is required to be developed.”
Trujillo v. Williams, 465 F.3d 1210, 1216–17 (10th Cir. 2006). “A court may sua sponte cure
jurisdictional and venue defects by transferring a suit under the federal transfer statutes, 28
U.S.C. §§ 1406(a) and 1631, when it is in the interests of justice.” Id. at 1222.
The venue statute, 28 U.S.C. § 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). The District of Kansas does not satisfy any of these options: none of the
defendants reside here; none of the underlying events occurred here; and, regardless of any
personal jurisdiction issue, it is not the case that no other district would be a proper venue. It
appears as though the Eastern District of California would be an appropriate venue.
Under 28 U.S.C. § 1406(a), “[t]he 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.” “[F]actors warranting
transfer rather than dismissal, at least under § 1631, include finding that the new action would be
time barred, that the claims are likely to have merit, and that the original action was filed in good
faith rather than filed after ‘plaintiff either realized or should have realized that the forum in
which he or she filed was improper’.” Trujillo, 465 F.3d at 1223, n.16 (internal citations
Plaintiff has filed motions for appointment of counsel (Doc. 13, 16). The Court denies
the motions to appoint counsel without prejudice to Plaintiff refiling a motion to appoint counsel
after a determination as to proper venue and screening of Plaintiff’s Complaint.
Plaintiff filed a motion for extension of time to provide financial information (Doc. 15).
Because the Court granted Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 18),
Plaintiff’s motion for extension of time is moot and therefore denied.
III. Response Required
For the reasons stated herein, Plaintiff is therefore required to show good cause why this
action should not be transferred to the United States District Court for the Eastern District of
California pursuant to 28 U.S.C. § 1406(a).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
July 20, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United
States District Judge, why this action should not be transferred to the United States District Court
for the Eastern District of California pursuant to 28 U.S.C. § 1406(a) for the reasons stated
IT IS FURTHER ORDERED that Plaintiff’s motions for appointment of counsel (Doc.
13, 16) are denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s motion for extension of time to provide
financial information (Doc. 15) is denied as moot.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 15th day of June, 2017.
s/ David J. Waxse
David J. Waxse
U. S. Magistrate Judge
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