Pagan v. City of Rochester et al

Filing 23

-CLERK TO FOLLOW UP-ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER denying 20 Motion for Transportation; deferring ruling on 22 Motion to Appoint Counsel; denying 22 Motion for Transportation; granting [22 ] Motion to Change Venue Plaintiff's motion to transfer this case to Rochester is granted. Court Clerk to transfer case to Rochester and reassign to Rochester-based judge. Plaintiff's motion for appointment of counsel (Docket No. 22) deferred to consideration by new judge.So Ordered. Signed by Hon. Hugh B. Scott on 3/20/2013. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MIGUEL PAGAN,
Plaintiff,

Hon. Hugh B. Scott
v.
12CV800
Order
CITY OF ROCHESTER,
ROCHESTER POLICE DEPARTMENT, et al.,
Defendants.

Before the Court is plaintiff’s second motion (Docket No. 22; see also Docket Nos. 20
(motion), 21 (Order)) for transportation to and from Buffalo to prosecute this case as plaintiff
lives in Rochester, and is proceeding pro se and in forma pauperis (see Docket No. 3). Plaintiff
also here renews his motion for appointment of counsel (Docket No. 22; see also Docket Nos. 13
(motion), 14 (Order denying motion)). Alternatively, plaintiff here moves to transfer this case to
Rochester (Docket No. 22) as proposed in the Order denying plaintiff’s first motion for
transportation (Docket No. 21, Order at 2-3). Plaintiff and defendants were given until March 4,
2013, to respond to the conversion of plaintiff’s motion for transportation (Docket No. 20) into a
motion to transfer to Rochester, and this Court then deemed the matter submitted (Docket
No. 21, Order at 3).
Motion for Transportation
As for plaintiff’s renewed motion for transportation from Rochester to Buffalo to
prosecute this case (Docket No. 22), that motion is denied. In forma pauperis relief does not

include providing transportation to the in forma pauperis party. See also Reynolds v. Foree,
771 F.2d 1179, 1180-81 (8th Cir. 1985) (per curiam), where the United States District Court for
the District of Nebraska dismissed a pro se action by an inmate in California without prejudice
when the plaintiff could not appear in Nebraska for trial and failed to appear at a pretrial
conference, stating that the court did not have funds to pay to transport the indigent civil rights
plaintiff for pretrial proceedings or trial. The United States Court of Appeals for the Eighth
Circuit reversed this dismissal and the denial of appointment of counsel, id. at 1181. See also
Blakely v. Quinn, No. CV-07-316-RHW, 2008 U.S. Dist. LEXIS 120530, at *3-4 (E.D. Wash.
May 22, 2008), where that court denied a habeas corpus petitioner’s motion for temporary
removal and transport for a hearing of a summary judgment motion in a habeas petition where
that motion was considered without oral argument and did not include issues that required
petitioner’s presence.
Plaintiff now argues that these cases are distinguishable because they involve inmate
plaintiffs seeking transport (Docket No. 22, Pl. 2d Request at 2). But there is no authority
generally for this Court to provide transportation to one party to prosecute their action in a distant
venue, regardless of who that party might be (inmate or not). Plaintiff’s poverty alone does not
justify granting his motion for transportation to and from Buffalo. Again and as previously noted
(Docket No. 21, Order at 2), according to the docket in this case, there is no scheduled
proceeding requiring plaintiff to appear in Buffalo until May 7, 2013, for a status conference
(Docket No. 9), which (if necessary) could be conducted by telephone. From plaintiff’s latest
motion that he lacks a landline telephone (Docket No. 22, Pl. 2d Response at 2) even a telephone
conference may require some extended arrangements to get plaintiff to a telephone.
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Nevertheless, plaintiff’s second motion for transportation for this action (Docket No. 22) is
denied.
Plaintiff’s Motion to Transfer Action to Rochester
Plaintiff alternatively moves to transfer this case to Rochester (id.). This action may be
transferred to Rochester for convenience of parties and witnesses and in interest of justice, see
28 U.S.C. § 1404(a); see W.D.N.Y. Loc. Civ. R. 5.1(c) (Court may transfer cases from within
District sua sponte); see also Big Score Entertainment, LLC v. Chriswell, No. 3:10-CV1993(CSH), 2012 U.S. Dist. LEXIS 179093 (D. Conn. Dec. 19, 2012) (granting pro se
defendant’s motion to transfer). This Court suggested transfer in its Order denying plaintiff’s
first motion for transportation (Docket No. 21, Order at 2-3). The parties were given until
March 4, 2013, to respond to the change of plaintiff’s motion and to state their position on the
transfer of this action (id. at 3). Plaintiff dated the present motion March 8, 2013 (Docket
No. 22), and this Court deems this motion responsive to the Order. Defendant has not
responded; thus, the basis for transfer upon the consent of the parties, see 28 U.S.C. § 1404(a), is
not available.
The venue for an action within this district is not a dispositive motion, hence this Court
can decide it on an Order, see Tenen v. Winter, 15 F. Supp. 2d 270, 272-73 (W.D.N.Y. 1998)
(Siragusa, J.); Plastic Suppliers, Inc. v. Cenveo, Inc., No. 3:10-cv-0512, 2011 U.S. Dist. LEXIS
5186, at *6 n.6 (N.D.N.Y. Jan. 20, 2011) (Peebles, Mag. J.) (citing cases); Madison v. Alves,
No. 05cv6018, 2006 U.S. Dist. LEXIS 49620, at *5 (W.D.N.Y. July 19, 2006) (Siragusa, J.)
(holding in pro se action where plaintiff sought action transferred to Southern District of New
York, motion for change of venue is non-dispositive); Alabi-Isama v. St. Vincent Catholic Med.
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Ctrs., No. 07-cv-02107, 2008 U.S. Dist. LEXIS 77851, at *2 (E.D.N.Y. Sept. 10, 2008) (in pro se
action, district judge reviewing motion for change of venue as a non-dispositive motion); see also
Riddick v. DEA, No. 10-cv-0036, 2010 U.S. Dist. LEXIS 3652, at *7 (E.D.N.Y. Jan. 19, 2010)
(Reyes, Mag. J.) (noting in pro se action the Individual Rules Practice of Magistrate Judge Reyes
to have non-dispositive motions, including to transfer venue, heard by Magistrate Judge). Unlike
a motion to change venue to move case to another district, cf. Sayles v. Pacific Eng’rs &
Constructors, Ltd., No. 08CV676, 2009 U.S. Dist. LEXIS 124819, at *6-7 (W.D.N.Y. Jan. 16,
2009) (Scott, Mag. J.) (Report & Recommendation, deeming change of venue to be dispositive
after Williams v. Beemiller, Inc., 527 F.3d 259 (2d Cir. 2008)1, transfer within a district does not
rob the Court of jurisdiction over the matter, hence this decision is non-dispositive and can be
made by Order in this Court.
The Court notes that this case was assigned to Buffalo pursuant to random assignment
under this Court’s Standing Order No. 49, of Oct. 1, 1996, para. C(2), (3), for direct assignment
of pro se cases, see also W.D.N.Y. Local Civil Rule 5.2(e). Given plaintiff’s circumstances, the
fact that all parties and probably all witnesses are located in Rochester, the incident at issue
occurred there, discovery issues raised to this Court involve a witness in Rochester, and the
hardship to plaintiff of continuing this action in Buffalo, plaintiff’s motion to transfer (Docket
No. 22) is granted. The Court Clerk is asked to transfer this action to Rochester and reassign it
to a Rochester-based judge.

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Holding that the statutory listing in 28 U.S.C. § 636(b)(1) of dispositive matters was not
exhaustive.
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Plaintiff’s Renewed Motion for Appointment of Counsel
Finally, plaintiff renews his motion for appointment of counsel (Docket No. 22), arguing
that Bank of America was disregarding plaintiff’s discovery requests and he claims he is losing
witnesses because he is representing himself (id., Pl. Appointment of Counsel Motion, at 2-5).
Given the transfer just ordered, plaintiff’s motion for counsel is best considered by the judge in
Rochester who will get this case. A judge there could identify an available, willing Rochesterarea attorney who might take on this case pro bono. Thus, ruling on this motion is deferred for
consideration by the new judge.
So Ordered.

/s/ Hugh B. Scott
Honorable Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
March 20, 2013

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