Simmons #197744 v. Lafler et al

Filing 10

OPINION AND ORDER directing the Clerk of the Court to reopen and transfer case to the United States District Court for the Western District of Michigan. Signed by District Judge Terrence G. Berg. (DPer) [Transferred from Michigan Eastern on 12/3/2014.]

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NIKO SHONTA SIMMONS,
v.

Case No. 14-13063
HON. TERRENCE G. BERG

Plaintiff,

BLAINE LAFLER, et. al.,
Defendants.
_____________________________________/
OPINION AND ORDER DIRECTING THE CLERK OF THE COURT TO
REOPEN AND TRANSFER CASE TO THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
Plaintiff Niko Shonta Simmons is an inmate confined at the Kinross
Correctional Facility in Kincheloe, Michigan. (Dkt. 1.) On August 6, 2014, Plaintiff
filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. (Id.) On October
15, 2014, the Court summarily dismissed the complaint (Dkt. 7) because Plaintiff
had failed to comply with two orders of deficiency that had been signed by
Magistrate Judge R. Steven Whalen on August 14, 2014 (Dkts. 4 and 5). The Court
indicated that plaintiff could re-file his case provided that he complies with
Magistrate Judge Whalen’s orders of deficiencies. (Dkt. 7, p. 4.)
Plaintiff has now filed a Motion for Reconsideration in which he claims that
he attempted to correct these deficiencies in a timely fashion, or at the very least,
wishes to correct them now. (Dkt. 9.) Because it appears that Plaintiff has
attempted to correct the noted deficiencies, the Court will ORDER the Clerk of the
Court to reopen the case to the Court’s active docket. However, for the reasons

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discussed in detail below, the Court will further ORDER the Clerk of the Court to
transfer the case to the United States District Court for the Western District of
Michigan.
I. OPINON
A. Plaintiff’s Case Shall Be Re-opened.
Plaintiff claims in his Motion for Reconsideration that that he sent an
authorization to withdraw funds along with a six-month account statement to the
Court on August 5, 2014. (Id. at 2.) Plaintiff also states that he sent eight copies of
the complaint to the Court via prison mail on August 20, 2014. (Id.) Plaintiff has
attached several exhibits from the Michigan Department of Corrections
(“M.D.O.C.”) Expedited Legal Mail, which appear to corroborate Plaintiff’s claim
that he sent the requested information to the Court. (Id. at 10-20.)
In addition, Plaintiff has attached to his Motion for Reconsideration a copy of
the certificate of prison account activity and an application for prisoner to proceed
without prepayment of fees or costs. (Id. at 16-20.) Plaintiff’s Complaint was
dismissed in part because Plaintiff did not include a written authorization to
withdraw funds from his prison trust fund account. (Dkt. 7, p. 1.) Plaintiff’s current
application for prisoner to proceed without prepayment of fees or costs contains a
written authorization to withdraw funds (Dkt. 9, p. 16) and Plaintiff has thus
corrected this deficiency with respect to his earlier application.
With respect to the lack of sufficient copies of his Complaint, Plaintiff has
attached a Legal Photocopy Disbursement Authorization dated August 19, 2014,

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which states that M.D.O.C. made eight copies of a thirty-three page civil rights
complaint for Plaintiff. (Id. at 10.) Because Plaintiff’s current civil rights complaint
is thirty-three pages, and this is the number of pages recorded as copied, it appears
that this was indeed the Complaint being copied for Plaintiff. Plaintiff also attached
an Expedited Legal Mail form indicating that an item was mailed out the next day
to this Court pertaining to the case number for this case. (Id. at 11.) This document
also offers corroboration of Plaintiff’s claim that he made the requisite copies of the
Complaint and had them mailed to this Court, but that the copies were somehow
lost along the way.
The Court indicated in its opinion and order that Plaintiff could re-file his
case if he complied with Magistrate Judge Whalen’s orders of deficiency. (Dkt. 7, p.
4.) In light of the information contained within the Motion for Reconsideration (Dkt.
9), the Court will therefore order the Clerk of the Court to reopen the case to the
Court’s active docket. Because the Court is transferring this case to the United
States District Court for the Western District of Michigan, however, the Court will
not decide the question of whether Plaintiff may proceed without prepayment of
fees, or whether to excuse Plaintiff’s failure to provide sufficient service copies to
the Court and allow Plaintiff another chance to provide the requisite number of
service copies. These issues are more appropriately to be decided by the district
judge in the Western District of Michigan.1

In reviewing Plaintiff’s Complaint, it appears that Plaintiff actually provided three copies of the
Complaint when he filed it. (See Dkt. 1.) Magistrate Judge Whalen may have been unaware of this
when he signed the original Order of Deficiency. Plaintiff’s initial Complaint was nonetheless
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B. The Case Shall Be Transferred to the United States District Court
for the Western District of Michigan.
Plaintiff is currently incarcerated at the Kinross Correctional Facility (KCF)
in Kincheloe, Michigan, which is located in the Western District of Michigan.
Plaintiff has named eight different Defendants: Blaine Lafler, the warden at the
Carson City Correctional Facility in Carson City, Michigan (DRF), Russel Klatt, the
ARUS at Carson City Correctional Facility, Cindi Curtin, the warden at Oaks
Correctional Facility (ECF) in Manistee, Michigan, Wendy M. Brinkley, the ARUS
at at Oaks Correctional Facility, and Penny Rogers, a nurse at the Kinross Facility.
All of these defendants are located in the Western District of Michigan as well.
Plaintiff has also named Corrections Medical Services and Prison Health Services
as Defendants.
When federal jurisdiction is not based solely upon diversity of citizenship,
venue is proper in (1) the judicial district where any defendant resides, if all of the
defendants reside in the same state, (2) the judicial district where a substantial part
of the events or omissions giving rise to the claim occurred, or (3) the judicial
district where any defendant may be found, if there is no other district in which the
action may be brought. See Bunting ex rel. Gray v. Gray, 2 F.App’x. 443, 448 (6th Cir.
2001) (citing 28 U.S.C. § 1391(b)).
For the convenience of parties and witnesses and in the interest of justice, a
district court may transfer any civil action to any other district or division where
the action might have been brought. See United States v. P.J. Dick, Inc., 79 F. Supp.
deficient in light of the fact that he named eight Defendants yet apparently provided only three
copies.
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2d 803, 805-06 (E.D. Mich. 2000); 28 U.S.C. § 1404(a). Venue of a lawsuit may be
transferred sua sponte for the convenience of parties or witnesses. See Schultz v.
Ary, 175 F. Supp. 2d 959, 964 (W.D. Mich. 2001).
The factors that guide a district court’s discretion in deciding whether to
transfer a case include: (1) the convenience of the witnesses; (2) the location of
relevant documents and the relative ease of access to sources of proof; (3) the
convenience of the parties; (4) the locus of the operative facts; (5) the availability of
process to compel the attendance of unwilling witnesses; (6) the relative means of
the parties; (7) the forum’s familiarity with governing law; (8) the weight accorded
the plaintiff’s choice of forum; and (9) trial efficiency and interests of justice, based
upon the totality of the circumstances. Overland, Inc. v. Taylor, 79 F. Supp. 2d 809,
811 (E.D. Mich. 2000).
The Court concludes that both for the convenience of the parties and
witnesses as well as in the interests of justice, this case should be transferred to the
Western District of Michigan. Plaintiff is currently incarcerated in the Western
District of Michigan and the Defendants also reside in that district. Although in
part of the Complaint, Plaintiff alleges that the Defendants violated his rights when
they infected him with MRSA at the Reception and Guidance Center in Jackson,
Michigan (Dkt. 1, p. i), the overwhelming majority of Plaintiff’s Complaint relates to
alleged medical indifference on the part of M.D.O.C. officials while Plaintiff was
incarcerated at either the Carson City or Kinross Correctional Facilities in the
Western District of Michigan. (Id. at i-ii.) Moreover, Plaintiff’s claims involving

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wrongful transfer, being wrongly placed in a higher security level, being wrongfully
terminated from his prison job, and his related retaliation claims all took place at
either the Carson City or Oaks Correctional Facilities in the Western District. (Id.)
“‘In tort cases, when determining whether a substantial part of the events or
omissions giving rise to the plaintiff's claim occurred or did not occur’ in a particular
district for purposes of § 1391(b)(2), ‘the facts that courts focus on include the place
where the allegedly tortious actions occurred and the place where the harms were
felt.’” See Estate of Abtan v. Blackwater Lodge and Training Center, 611 F. Supp. 2d
1, 8 (D.D.C. 2009) (quoting 14D Charles A. Wright, Arthur R. Miller, Edward H.
Cooper, Federal Practice & Procedure § 3806.1 (6th ed. 2008)). In the present case,
the only allegedly tortious actions Plaintiff complains of occurred in the Western
District of Michigan and that is where the harms are being felt. Plaintiff has not
even named any person from the Reception and Guidance Center in Jackson,
Michigan as Defendants. (See dkt. 1.) Venue is therefore not proper in this district
for Plaintiff’s claims under any of the provisions of 28 U.S.C. § 1391(b) because none
of the Defendants reside in the Eastern District of Michigan, no substantial part of
the events giving rise to Plaintiff’s claims took place here, and this is not a case in
which no other district is available. See Hazel v. Lappin, 614 F. Supp. 2d 66, 72
(D.D.C. 2009).
Moreover, in cases in which a Plaintiff’s claims may require testimony or files
that can be most easily obtained at or near the Plaintiff’s place of incarceration, “the
district in which the institution is located will ordinarily be the more convenient

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forum.” See Joyner v. District of Columbia, 267 F. Supp. 2d 15, 20-21 (D.D.C. 2003)
(quoting Starnes v. McGuire, 512 F. 2d 918, 931 (D.C. Cir. 1974). The Court also
notes that Plaintiff seeks injunctive relief in this case. (Dkt. 1, pp. 19-20.)
Considerations of justice and convenience require the transfer of Plaintiff’s claim for
injunctive relief for his claim of alleged inadequate medical care to the Western
District of Michigan, which is the location of Plaintiff and his medical records. See
Bryant v. Carlson, 652 F. Supp. 1286, 1288-89 (D.D.C. 1987). Finally, the witnesses
and files necessary to prosecute these claims are located in the Western District of
Michigan and the burden of transporting the Plaintiff to this judicial district would
be significant. For these reasons, transfer of this action to the Western District
would be proper. See Welch v. Kelly, 882 F. Supp. 177, 180 (D.D.C. 1995).
Accordingly, this matter will be transferred to the Western District of Michigan for
further proceedings.
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II. ORDER
IT IS HEREBY ORDERED that the Clerk of the Court reopen the case to
the Court’s Active Docket. IT IS FURTHER ORDERED that the Clerk of the
Court transfer this case to the United States District Court for the Western District
of Michigan pursuant to 28 U.S.C. § 1404(a).
SO ORDERED.

Dated: December 1, 2014
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically submitted on December 1,
2014, using the CM/ECF system; a copy of this Order was also mailed to the Kinross
Correctional Facility, 16770 South Watertower Drive, Kincheloe, MI 49788, directed
to Plaintiff’s attention.
s/A. Chubb
Case Manager

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