Timley v. Goetz et al

Filing 3

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted fourteen (14) days from his receipt of this order to show cause to the Honorable Sam A. Crow why this matter should not be transferred to the U.S. District Court for the District of Colorado. Plaintiff's motion to proceed in forma pauperis 2 is denied. Signed by Magistrate Judge David J. Waxse on 07/17/17. Mailed to pro se party Donnell F. Timley, Sr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DONNELL F. TIMLEY, SR.,
Plaintiff,
v.

CASE NO. 17-3101-SAC-DJW

C.R. GOETZ, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a civil rights action filed a prisoner held at
the Federal Correctional Institution, Florence, Colorado. Plaintiff
proceeds pro se and seeks leave to proceed in forma pauperis.
The motion to proceed in forma pauperis
This motion is governed by 28 U.S.C. § 1915(b). Because plaintiff
is a prisoner, he must pay the full filing fee in installment payments
taken from his prison trust account when he “brings a civil action
or files an appeal in forma pauperis[.]” § 1915(b)(1). Pursuant to
§ 1915(b)(1), the court must assess, and collect when funds exist,
an initial partial filing fee calculated upon the greater of (1) the
average monthly deposit in his account or (2) the average monthly
balance in the account for the six-month period preceding the filing
of the complaint. Thereafter, the plaintiff must make monthly payments
of twenty percent of the preceding month’s income in his institutional
account. § 1915(b)(2). However, a prisoner shall not be prohibited
from bringing a civil action or appeal because he has no means to pay
the initial partial filing fee. § 1915(b)(4).
The Court has examined the financial records supplied by the
plaintiff and finds that during the six months preceding the filing

of this action, he had an average daily balance in excess of $1,100.00
in his institutional account (Doc. #2, Attach., p. 4). The Court
concludes that plaintiff has sufficient resources to pay the $400.00
filing fee and will deny leave to proceed in forma pauperis.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
In screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
Plaintiff alleges his rights under the Eighth Amendment were
violated by four officers employed at the FCI Florence. His claims
concern the conditions of his confinement, including his assignment
to a dry cell, limited access to showers and hygiene, limited access
to bedding and a mattress, and the handling of his mail. He seeks
damages and other relief.
The Court finds that venue is not proper in the District of
Kansas.
A civil action wherein jurisdiction is not founded solely
on diversity of citizenship may, except as otherwise
provided in law, be brought only in (1) a judicial district
where any defendant resides, if all defendants reside in

the same State, (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) a judicial
district in which any defendant may be found, if there is
no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b).
Here, no defendants reside in Kansas, and the acts and omissions
alleged took place during plaintiff’s incarceration in FCI Florence.
Accordingly, venue is proper in the United States District Court for
the District of Colorado.
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.”
The Court has considered the complaint and finds that transfer is
appropriate. Plaintiff’s claims appear to be timely, and they are not
patently frivolous or malicious.
Accordingly,

the

Court

recommends

that

this

matter

be

transferred to the U.S. District Court for the District of Colorado
and directs plaintiff to file any objection to this recommendation
within fourteen (14) days from his receipt of this order. The failure
to file a written, specific objection waives de novo review of the
matter by the District Judge, see Thomas v. Arn, 474 U.S. 140, 148-53
(1985).
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted
fourteen (14) days from his receipt of this order to show cause to
the Honorable Sam A. Crow why this matter should not be transferred

to the U.S. District Court for the District of Colorado.
IT IS FURTHER ORDERED plaintiff’s motion to proceed in forma
pauperis (Doc. #2) is denied.
A copy of this order shall be transmitted to plaintiff.
IT IS SO ORDERED.
DATED:

This 17th day of July, 2017, at Kansas City, Kansas.

s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge