Mortenson v. Lawrence County Jail et al

Filing 4

ORDER AND MEMORANDUM re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Merrill Mortenson motion is PROVISIONALLY GRANTED, subject to modification by the Western District of Missouri upon transfer. IT IS FURTHER ORDERED that the Clerk on Court shall not issue process or cause process it issue upon the complaint, because this action will be transferred to the Western District of Missouri. An appropriate order of transfer shall accompany this order and memorandum. Signed by Honorable Catherine D. Perry on September 23, 2008. (MCB) [Transferred from moed on 11/4/2008.]

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION MERRILL MORTENSON, Plaintiff, vs. LAWRENCE COUNTY JAIL, et al., Defendants. ) ) ) ) ) ) ) ) ) Case No. 4:08-CV-1325 CDP ORDER AND MEMORANDUM This matter is before the Court upon the application of Merrill Mortenson for leave to commence this action without payment of the required filing fee. See U.S.C. 1915(a). Upon consideration of the financial information provided with the application, the Court will grant plaintiff provisional leave to file this action. The Complaint Plaintiff, a prisoner currently confined at the Phelps County Jail ("PCJ"), seeks relief pursuant to 42 U.S.C. 1983. Named as defendants are the Lawrence County Jail, the Lawrence County Sheriff's Department, Dave Unknown (a Lawrence County deputy sheriff), Unknown Sass (a Lawrence County deputy sheriff), Unknown Holloway (a Lawrence County deputy sheriff), the "Lawrence County Chief Sheriff," and "Captain of Jail." Plaintiff's allegations arise out of his incarceration at the Lawrence County Jail, where he claims he suffered severe serious physical injuries after being repeatedly assaulted by other inmates. Plaintiff alleges that defendants allowed the assaults to take place and refused plaintiff adequate and timely medical attention. Discussion Pursuant to 28 U.S.C. 1391(b), venue for this action is proper where (i) any defendant resides, if all the defendants reside in the same state; (ii) a substantial part of the events or omissions giving rise to the claim occurred; or (iii) where any defendant may be found, if there is no district in which the action may otherwise be brought. All of the events described in the complaint occurred in Lawrence County, Missouri, which is located in the Western District of Missouri. See 28 U.S.C. 105(b)(2). Also, the defendants can be found in the Western District of Missouri. Therefore, venue is not proper in the Eastern District of Missouri. Pursuant to 28 U.S.C. 1406(a), the District Court in which is filed a case laying venue in the wrong district may dismiss the case or, in the exercise of its discretion and in the interest of justice, transfer the petition to any District Court in which such action could have been brought. In cases involving a plaintiff who is proceeding pro se and in forma pauperis, especially a prisoner, the usual practice is to transfer the case to the proper district. Therefore, this action shall be transferred to the United States District Court for the Western District of Missouri. Because venue is not proper in the Eastern District, no determination has been made as to 2 whether the complaint is frivolous or fails to state a claim, pursuant to 28 U.S.C. 1915(e)(2)(A)(B). In accordance with the foregoing, IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is PROVISIONALLY GRANTED, subject to modification by the Western District of Missouri upon transfer. IT IS FURTHER ORDERED that the Clerk of Court shall not issue process or cause process to issue upon the complaint, because this action will be transferred to the Western District of Missouri. An appropriate order of transfer shall accompany this order and memorandum. Dated this 23rd day of September, 2008. _________________________________ UNITED STATES DISTRICT JUDGE 3

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