Credell v. Dunne

Filing 5

ORDER. For the reasons provided in the annexed order, the Clerk of Court is respectfully directed to transfer this action to the United States District Court for the Southern District of New York and administratively close this case. The Clerk of Court is also respectfully directed to serve a copy of this order on the pro se plaintiff and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 7/1/2016. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------X
DARNELL CREDELL,
TRANSFER ORDER
16-CV-3081(KAM)

Plaintiff,
-againstP.O. DUNNE,
Defendant.
---------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff
incarcerated

at

Darnell
Lakeview

Credell
Shock

(“plaintiff”),

Incarceration

currently

Correctional

Facility, filed the instant pro se complaint under 42 U.S.C.
§ 1983. Plaintiff alleges that on June 18, 2009, he was arrested
outside the Herald Square Macy’s in Manhattan by Police Officer
Dunne, an officer assigned to the Midtown South Police Precinct.
(ECF No. 1, Complaint (“Compl.”) at ¶ IV.) Plaintiff alleges that
his Fourth Amendment rights were violated during the course of his
arrest and seeks monetary damages. (Id. at ¶¶ IV-V.)
Under 28 U.S.C. § 1391, an 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;
(2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred . . . ; 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) (“§ 1391(b)”).
Here, § 1391(b)(1) cannot provide the basis for venue in
the Eastern District of New York. “In a suit against public
officials,

residence

for

the

purpose

of

venue

is

where

the

officials perform their duties.” Legrand v. City of New York, No.
09-CV-9670, 2010 WL 742584, at *4 n.1 (S.D.N.Y. Mar. 3, 2010)
(citations omitted). Plaintiff identifies the defendant police
officer as “P.O. Dunne” and states that Officer Dunne is assigned
to the Midtown South Police Precinct in Manhattan. 1 (Compl. at
¶ III.B.) Because Officer Dunne, the sole defendant, performs his
duties in Manhattan — in the Southern District of New York — venue
does not lie under § 1391(b)(1).
Venue is also inappropriate in the Eastern District of
New York under § 1391(b)(2) because a “substantial part of the
events or omissions giving rise to the claim” did not occur in the
Eastern District of New York. In fact, no act or omission alleged
in the complaint occurred in the Eastern District of New York.

1

The Herald Square Macy’s, the court recognizes, falls within
the Midtown South Police Precinct’s boundaries. See Precinct
Finder,
New
York
Police
Department,
available
at
http://www.nyc.gov/html/nypd/html/precinct_maps/precinct_finder.
shtml.
2

Plaintiff alleges that an officer observed him receive an envelope
containing a card in front of the Herald Square Macy’s. (Compl. at
¶ IV.) The officer then purportedly followed him into the Macy’s,
waited until he purchased an item using the card, and then arrested
him outside the store. (Id.) All of the events giving rise to the
instant action (at least, as alleged in the complaint) occurred in
the Southern District of New York. Accordingly, venue in the
Eastern District of New York is not appropriate under § 1391(b)(2).
Finally, venue is not appropriate under § 1391(b)(3)
because there is another district where the instant action may be
brought. As discussed above, the Southern District of New York is
an appropriate venue for plaintiff’s action. The defendant resides
in the Southern District of New York and all of the events alleged
in plaintiff’s complaint occurred in the Southern District of New
York.
Accordingly, the Clerk of Court is respectfully directed
to transfer this action to the United States District Court for
the Southern District of New York, see 28 U.S.C. § 1406(a) (“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
3

have

been

brought.”),

and

administratively close this case. No summons shall issue from this
court and a ruling on plaintiff’s application to proceed in forma
pauperis is reserved for the transferee court. The court notes
that plaintiff failed to submit a Prison Litigation Reform Act
authorization.

The

court

offers

no

opinion

on

the

merits

of

plaintiff’s action.
Rule 83.1 of the Local Rules of the Eastern District of
New York, which requires a seven-day delay before transfer is
effected, is waived. See United States v. Pedro, No. 03-CR-346,
2013 WL 776359, at *1 (S.D.N.Y. Feb. 27, 2013) (waiving E.D.N.Y.
Local R. 83.1 in transferring action).
SO ORDERED.
Dated:

July 1, 2016
Brooklyn, New York
_________/s/_________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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