Johnson v. Phillips

Filing 4

MEMORANDUM OPINION AND ORDER by District Judge David H. Urias DENYING 2 MOTION for Leave to Appeal in forma pauperis; DISMISSING WITHOUT PREJUDICE 1 Complaint. (cmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROBERT W. JOHNSON,
Plaintiff,
v.

No. 1:24-cv-00922-DHU-JMR

R. PHILLIPS,
Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff, who is proceeding pro se,1 resides in Syracuse, New York. See Complaint for
Violation of Civil Rights at 2, Doc. 1, filed September 13, 2024 (“Complaint”). Defendant resides
in Syracuse, New York. See Complaint at 2. Plaintiff asserts claims for discrimination, civil rights
violations and due process violations and states “the events giving rise to [Plaintiff’s] claim(s)
occur[ed] … [in] Syracuse, NY” on September 2, 2024. Complaint at 3-4. Plaintiff alleges
Defendant, a police officer, “failed to arrest [a trespasser] and author a restraining order against
[the trespasser].” Complaint at 4. There are no factual allegations showing that Defendant’s
acts/omissions were motivated by discriminatory animus, that Defendant violated Plaintiff’s civil
rights or that Defendant deprived Plaintiff of due process.
The statute governing venue in general states:
Venue in general.--A civil action may be brought in—
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;

The Complaint is signed by attorney “Willie Johnson,” bar number “999999.” Complaint at 6.
Willie Johnson has not entered an appearance or obtained leave of the Court to sign and file any
documents in this case as required by Local Rule of Civil Procedure D.N.M.LR-Civ. 83.4(a).
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(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court's
personal jurisdiction with respect to such action.
28 U.S.C. §1391(b). “The district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to
any district or division in which it could have been brought.” 28 U.S.C. § 1406(a) (emphasis
added).
Factors considered in deciding whether a transfer is in the interests of justice
include whether the claims would be barred by a statute of limitations if filed anew
in the proper forum, e.g. Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir.2000)
(citing Coleman v. United States, 106 F.3d 339, 341 (10th Cir.1997)), whether the
claims alleged are likely to have merit, e.g. Haugh, 210 F.3d at 1150 (citing Phillips,
173 F.3d at 610), and whether the claims were filed in good faith or if, on the other
hand, it was clear at the time of filing that the court lacked the requisite jurisdiction,
Trierweiler, 90 F.3d at 1544 (“[I]t is not in the interest of justice to transfer where
a plaintiff either realized or should have realized that the forum in which he or she
filed was improper.”).
Young v. State Government of Oklahoma, 98 Fed.Appx. 760, 763-764 (10th Cir. 2004).
The Court concludes that the District of New Mexico is not a proper venue for this case
because Defendant does not reside in the District of New Mexico and there are no allegations that
any of the events or omissions giving rise to the claim occurred in the District of New Mexico.
The Court concludes that a transfer of this case is not in the interests of justice because: (i) the
events giving rise to this case occurred on September 2, 2024, consequently Plaintiff’s claims will
not be barred by a statute of limitations if filed in the proper forum; (ii) the Complaint does not
allege facts showing that the claims are likely to have merit; and (iii) Plaintiff should have realized
that the District of New Mexico is an improper forum. The Court dismisses this case without
prejudice because the District of New Mexico is not the proper venue. Because it is dismissing
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this case, the Court denies Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs, Doc. 2, filed September 16, 2024, as moot.
IT IS ORDERED that:
(i)

This case is DISMISSED without prejudice.

(ii)

Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or
Costs, Doc. 2, filed September 16, 2024, is DENIED.

_________________________________
UNITED STATES DISTRICT JUDGE

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