Penick v. Morgan City et al

Filing 4

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Gary Randall Penick Objections to R&R due by 2/11/2010. Signed by Magistrate Judge Daniel E. Knowles, III.(car, ) [Transferred from Louisiana Eastern on 3/1/2010.]

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA GARY RANDALL PENICK VERSUS THE CITY OF MORGAN CITY, ET AL. CIVIL ACTION NO. 10-126 SECTION "I"(3)

REPORT AND RECOMMENDATION This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an Evidentiary Hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to Title 28 U.S.C. § 636(b) and (c), § 1915e(2), and § 1915A, and as applicable, Title 42 U.S.C. § 1997e(c)(1) and(2). Upon review of the entire record, the Court has determined that this matter can be disposed of without an Evidentiary Hearing. I. Factual Summary Plaintiff, Gary Randall Penick, is currently incarcerated in the St. Mary Parish Jail in Centerville, Louisiana. Plaintiff submitted this pro se and in forma pauperis1 civil rights complaint pursuant to Title 42 U.S.C. § 1983, against Morgan City, Warden Herbert Johnson, and Supervisor, Stacy Labelle, alleging that the Morgan City Jail where he was housed in November and December

The Court directed the Clerk by separate Order to file this complaint without prepayment of a filing fee. The application for pauper status is deferred to the Western District of Louisiana for determination and collection pursuant to Title 28 U.S.C. § 1915.

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2009, lacked adequate funding and medical services to provide him the necessary medical care. (Rec. Doc. No. 1, Complaint, p. 5). Plaintiff requests monetary compensation. II. General Venue Statute Title 42 U.S.C. § 1983 does not contain a specific venue provision. Venue, however, is determined under Title 28 U.S.C. § 1391, also known as the general venue statute. See Jones v. Bales, 58 F.R.D. 453 (N.D. Ga. 1972), aff'd, 480 F.2d 805 (5th Cir. 1973). The general venue statute at § 1391(b) provides that a civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in a judicial district where (1) any defendant resides, if all defendants reside in the same State, (2) a substantial part of the events or omissions giving rise to the claim occurred, or (3) any defendant may be found, if there is no district in which the action may otherwise be brought. Pursuant to Title 28 U.S.C. § 1406(a) and § 1404(a), a district in which venue is wrong may transfer a case to another district or division in which venue is proper, if such transfer is in the interest of justice. Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1999). Having reviewed the record, the Court finds that venue in the Eastern District of Louisiana is improper. III. Proper Venue Plaintiff's cause of action arose in the Morgan City Jail in Morgan City, Louisiana, which is located in St. Mary Parish. St. Mary Parish lies within the geographical boundaries of the United States District Court for the Western District of Louisiana. 28 U.S.C. § 98(c). No defendant is alleged to reside in or to be located within the Eastern District. All of the events that form the factual basis of plaintiff's action occurred within St. Mary Parish in the Western District of

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Louisiana. Therefore, the Court finds that it is in the interest of justice and fairness to the parties that this civil action be transferred to the Western District of Louisiana for further consideration. IV. Recommendation It is therefore RECOMMENDED that the captioned matter be TRANSFERRED to the United States District Court for the Western District of Louisiana. A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).2 New Orleans, Louisiana, this 28th day of January, 2010.

____________________________________ DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE

Douglass referenced the previously applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend that period to fourteen days. 3

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