Dunbar v. Heyns et al

Filing 85

ORDER GRANTING DEFENDANT'S 69 Motion to Transfer Case, DENYING PLAINTIFF'S 74 Motion to Supplement; DENYING PLAINTIFF'S 78 Motion for Evidentiary Hearing; DENYING PLAINTIFF'S 79 Motion for Immediate Release; DENYING PLAINTIFF'S 80 Motion for Immediate Release; DENYING PLAINTIFF'S 83 Motion for Immediate Consideration AND DENYING PLAINTIFF'S 84 Motion for Immediate Release - Signed by Magistrate Judge R. Steven Whalen.[Transferred from Michigan Eastern on 6/1/2018.]

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSEPH DUNBAR,
Plaintiff,

No. 15-11573

v.

District Judge John Corbett O’Meara
Magistrate Judge R. Steven Whalen

DANIEL HEYNS, ET AL.,
Defendants.
/
ORDER TRANSFERRING PLAINTIFF'S CIVIL RIGHTS COMPLAINT TO
THE WESTERN DISTRICT OF MICHIGAN
Plaintiff, a prison inmate in the custody of the Michigan Department of Corrections
(“MDOC”) at the Richard A. Handlon Correctional Facility (“MTU”) in Ionia, Michigan,
has filed a pro se civil complaint alleging violations of his civil rights by under 42 U.S.C. §
1983 by various MTU personnel.1 Currently before the Court is MDOC Defendants
1

The Court notes that Plaintiff styles the complaint as a “Petition for Writ of Habeas
Corpus Civil Rights Complaint” and also includes allegations regarding his underlying
conviction. Plaintiff’s Amended Complaint. Plaintiff previously filed two habeas petitions
in the Eastern District of Michigan. Dunbar v. Curtis, 03-10232;Dunbar v. Booker,
07-10993. Before a second or successive habeas petition may be filed in a federal district
court, a habeas petitioner must move in the appropriate court of appeals for an order
authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A); Stewart v.
Martinez-Villareal, 523 U.S. 637, 641 (1998). A federal district court does not have
jurisdiction to entertain a successive petition for writ of habeas corpus in the absence of an
order of authorization from the court of appeals. Ferrazza v. Tessmer, 36 F. Supp. 2d 965,
971 (E.D. Mich. 1999). On transfer, the Western District can consider transfer of Plaintiff’s
habeas request to the Sixth Circuit.

Woldhuis, Meier, Rozen, and Upper’s motion to dismiss and/or transfer based upon improper
venue [Docket #69]. For the reasons set forth below, Defendants’ motion is GRANTED to
the extent that the case is transferred to the Western District of Michigan.
I. DISCUSSION
Plaintiff’s civil rights allegations pertain to the assignment of cell-mates and the
handling of his mail. He alleges that these events took place at MTU in Ionia, Michigan
which is located in the Western District of Michigan. The Defendants named in the
complaint perform their work duties at MTU. Docket #69, ¶ 3.

Plaintiff remains

incarcerated at MTU.
Venue is in the judicial district where either all defendants reside or where the claim
arose. Al–Muhaymin v. Jones, 895 F.2d 1147, 1148 (6th Cir.1990); 28 U.S.C. § 1391(b).
For the convenience of parties and witnesses, 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.2d 803, 805–06 (E.D.Mich.2000)
(Gadola, J.); 28 U.S.C. § 1404(a). 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)(Gadola,
J.).
The Court concludes that for the convenience of the parties and witnesses, location
of relevant documents, and in the interests of justice, the present matter must be transferred
to the Western District of Michigan. The primary factor in making the determination to
transfer venue is that all of the “operative facts” in this case took place at MTU, which is
located in the Western District of Michigan. See Pierce v. Coughlin, 806 F.Supp. 426, 428
(S.D.N.Y.1992). Plaintiff is currently incarcerated in the Western District of Michigan and
Defendants work in that district. See NGS American, Inc. v. Barnes, 782 F.Supp. 1198, 1200
(E.D. Mich. 1992)(citing Birnbaum v. Blum, 546 F.Supp. 1363, 1366 (S.D.N.Y.1982)(“place
where state officials perform official duties is the official residence of state officials for
venue purposes”).
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 forum.” See Joyner v. District
of Columbia, 267 F.Supp.2d 15, 20–21 (D.D.C.2003)(citing Starnes v. McGuire, 512 F.2d
918, 931 (D.C.Cir.1974)). The witnesses and files necessary to prosecute these claims are
located in the Western District of Michigan. 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).
Venue for plaintiff's lawsuit against Defendants is not proper in the Eastern District of
Michigan, because Plaintiff has failed to allege that any of the acts, events, or omissions

which form the basis of his lawsuit took place in the Eastern District of Michigan. See Miles
v. WTMX Radio, 15 Fed. Appx. 213, 215 (6th Cir.June 20, 2001). For these reasons, the
Court concludes that venue in this § 1983 lawsuit lies in the Western District of Michigan
where Plaintiff alleges that the civil rights violations occurred.
Insofar as Defendants request a transfer to the Western District of Michigan,
the motion is GRANTED [Docket #69]. The Clerk of the Court will transfer
this file to the Western District of Michigan.
Plaintiff’s motion to supplement [Docket #74], construed as a response to the
current motion, is DENIED.
Plaintiff’s motion an evidentiary hearing [Docket #78] is DENIED WITHOUT
PREJUDICE.
Plaintiff’s motion for immediate release, for bail, or for a transfer to a federal
prison [Docket #79] is DENIED WITHOUT PREJUDICE.
Plaintiff’s motion demonstrating actual innocence [Docket #80] is DENIED
WITHOUT PREJUDICE.
Plaintiff’s emergency motion for immediate consideration [Docket #83] is
DENIED WITHOUT PREJUDICE.
Plaintiff emergency motion for immediate release for emergency medical
treatment [Docket #84] is DENIED WITHOUT PREJUDICE.

IT IS SO ORDERED.
s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Date: May 31, 2018

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to
parties of record on May 31, 2018, electronically and/or by U.S. mail.
s/Carolyn Ciesla
Case Manager to the
Honorable R. Steven Whalen