Chew v. CDCR, et al.,

Filing 7

ORDER signed by Magistrate Judge Kendall J. Newman on 11/16/12 ORDERING that this case is TRANSFERRED to the Northern District of Mississippi.(Dillon, M) [Transferred from California Eastern on 11/19/2012.]

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TROY L. CHEW,

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No. 2:12-cv-02567 KJN1 P

Plaintiff,

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vs.

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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ORDER
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Plaintiff is a California prisoner incarcerated under the authority of the California

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Department of Corrections and Rehabilitation (“CDCR”). Pursuant to the California Out-of-

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State Correctional Facility Program, plaintiff is incarcerated at the Tallahatchie County

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Correctional Facility (“TCCF”), in Tutwiler, Mississippi. Plaintiff asserts that TCCF is operated

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by the Correctional Corporation of America (“CCA”), apparently on behalf of the Mississippi

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Department of Corrections. Plaintiff, who proceeds without counsel or “pro se,” has filed a civil

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rights action pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma

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pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff has consented to the jurisdiction of the magistrate judge for all purposes.
28 U.S.C. § 636(c); Local Rule 305(a). (See Dkt. No. 5.)
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Plaintiff’s claims are premised on a fall he sustained while working as a butcher

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in the TCCF kitchen. Plaintiff alleges that, despite lodging prior complaints, he was required to

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wear unsafe shoes for working on the kitchen’s wet tiled floor and, as a result, suffered a slip and

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fall on July 27, 2010, resulting in injuries to his back and elbow.

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Plaintiff names CDCR as a defendant, as the “constructive custodian” of plaintiff,

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and asserts that venue is proper in the Eastern District of California under 28 U.S.C.

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§ 1391(b)(2), “because all of the events giving rise to the claim occurred in and through the

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California Out-of- State [Correctional] Facility program,” which is located within this district.

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(Dkt. No. 1 at 9).2 In addition to naming CDCR, plaintiff names TCCF and CCA as defendants,

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as well as TCCF Warden Figueroa, and TCCF Kitchen Supervisor Sinnott. Plaintiff also alleges

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deliberate indifference to his serious medical needs, against physicians Pour, Warner and

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Flowers.

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The federal venue statute provides that a civil action “may be brought in (1) a

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judicial district in which any defendant resides, if all defendants are residents of the State in

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which the district is located, (2) a judicial district in which a substantial part of the events or

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omissions giving rise to the claim occurred, or a substantial part of property that is the subject of

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the action is situated, or (3) if there is no district in which an action may otherwise be brought as

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provided in this action, any judicial district in which any defendant is subject to the court’s

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personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b).

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In this case, the only California defendant is CDCR, which is named solely in a

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respondeat superior capacity. All of the challenged events or omissions giving rise to plaintiff’s

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claims occurred at TCCF, which is located in Tallahatchie County, which is within the Northern

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District of Mississippi. For these reasons, this action should have been filed in the United States

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District Court for the Northern District of Mississippi.

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References to the record reflect this court’s electronic pagination, not the internal
pagination of the noted documents.
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In the interests of justice, a federal court may transfer a complaint filed in the

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wrong district to the correct district. See 28 U.S.C. § 1406(a); Starnes v. McGuire, 512 F.2d

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918, 932 (D.C. Cir. 1974).

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Accordingly, IT IS HEREBY ORDERED that this matter is transferred to the

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United States District Court for the Northern District of Mississippi. This court has not ruled on

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plaintiff’s application to proceed in forma pauperis.

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IT IS SO ORDERED.

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DATED: November 16, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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chew2567.venue

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