Neal El v. Valasek et al

Filing 7

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED THAT: (1) This case should be dismissed on the grounds previously set forth in the Report and Recommendation filed on 7/15/2022 4 , as well as for lack of venue, rather than being transfer red to the Northern District of Ohio; (2) Plaintiff's motion for default judgment 6 should be DENIED; (3) As Plaintiff has now filed four separate cases without any apparent connection to the district over which venue is improper, he should be ordered to avoid filing any future cases in the absence of venue. Should Plaintiff persist in filing cases in which venue is improper and/or that are legally frivolous under 28 U.S.C. §1915(e)(2)(B), the Court may seek to impose non-monetary s anctions to deter future abusive or vexatious conduct; (4) This Court should certify, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Objections to R&R due by 9/29/2022. Signed by Magistrate Judge Stephanie K. Bowman on 9/15/2022. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:22-cv-00394-MWM-SKB Doc #: 7 Filed: 09/15/22 Page: 1 of 7 PAGEID #: 63

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MOURICE NEAL EL,
Plaintiff,
v.

Case No. 1:22-cv-394
McFarland, J.
Bowman, M.J.

SARAH VOLASEK, et al.,
Defendants.
SUPPLEMENTAL REPORT AND RECOMMENDATION
On July 6, 2022, Plaintiff Mourice Neal El, proceeding pro se, initiated this action
by filing an application seeking to proceed in forma pauperis together with a tendered
complaint against three individual Defendants. The undersigned granted Plaintiff’s leave
to proceed in forma pauperis, but simultaneously filed a Report and Recommendation
(“R&R”) that recommended dismissal of the complaint. (Docs. 3, 4). Objections to that
R&R remain pending before the presiding district judge. (Doc. 5).
On August 31, 2022 Plaintiff filed a motion for default judgment against the three
Defendants. (Doc. 6). This Supplemental R&R addresses Plaintiff’s pending motion as
well as a question of improper venue in this Court.
I.

Background

The undersigned takes judicial notice that, to date, Plaintiff has filed a total of four
civil rights cases in the Southern District of Ohio, including the above-captioned case.
Close in time to when Plaintiff filed the instant case, he filed two cases that were assigned
to other judicial officers. Upon initial screening, the Court transferred those two cases to

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the Northern District of Ohio based upon a determination that venue did not lie in this
district. See, e.g., Case No. 1:22-cv-385-MWM-KLL (transferred to Northern District of
Ohio and re-opened as 3:22-1180-JGC due to improper venue in the Southern District of
Ohio); Case No. 1:22-cv-387-DRC-KLL (same, re-opened as 3:22-cv-1183-JRK). The
transfer orders did not address any other issues, such as whether the complaints were
otherwise subject to dismissal under 28 U.S.C. § 1915(e)(2)(B). As of this date, both of
the transferred cases await further review in the Northern District of Ohio.
The undersigned did not initially examine the venue issue in the above-captioned
case. Instead, on July 15, 2022, the undersigned filed a Report and Recommendation
(“R&R”) that recommended dismissal of Plaintiff’s complaint with prejudice for failure to
state any viable claim and because the State of Ohio is absolutely immune from suit. In
the alternative, the R&R recommended dismissal without prejudice under Younger
abstention principles given the existence of related and ongoing state criminal
proceedings. Below, the undersigned discusses the lack of venue in this district, but
reiterates the conclusion of the prior R&R that the complaint should be dismissed.
Plaintiff recently filed a fourth case in this district, Case No. 1:22-cv-522-SJD-SKB.
The undersigned has filed a separate R&R concerning that legally frivolous case.
II.

Analysis

A. Plaintiff’s Venue Problem
The same defect in venue that provided grounds for transfer of Case Nos. 1:22cv-385-MWM-KLL and 1:22-cv-387-DRC-KLL exists in the above-captioned case.
Plaintiff alleges that he is a resident of Freemont, Ohio, which is located in Sandusky
County. The events that form the basis of his complaint also are alleged to have occurred

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in in Sandusky County rather than any county in the Southern District of Ohio. Each of
the three defendants is alleged to reside in Holland, Ohio, which is located in Lucas
County. Both Sandusky County and Lucas County are in the Northern District of Ohio.
See generally, 28 U.S.C. § 1391(b) (setting forth parameters of venue). In short, venue
in this district is clearly improper, whereas venue in the Northern District of Ohio may be
appropriate.
When a case is filed in the wrong division of a district court, the court either “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).

In the prior R&R, the

undersigned recommended dismissal upon initial screening under 28 U.S.C. § 1915(e).
That recommendation is unchanged by the fact that venue is improper, because §1406(a)
explicitly requires dismissal unless “justice” requires transfer. Because this case has
been determined to be legally frivolous upon initial screening, the undersigned continues
to believe that dismissal rather than transfer is appropriate.1
“The statute explicitly contemplates dismissal unless otherwise
warranted.” Peckio v. Shay, 708 F. Supp. 75, 76 (S.D.N.Y.1989). Once a
court determines that venue is improper, it should examine the merits of the
plaintiff's action in deciding whether the interests of justice require transfer
instead of dismissal. See, e.g., King v. Russell, 963 F.2d 1301, 1305 (9th
Cir.1992); Hapaniewski v. Chicago Heights, 684 F. Supp. 1011, 1013-14
(N.D.Ind.1988); see also Shemonsk y v. Office of Thrift Supervision Dep't
of Treasury, 733 F. Supp. 892, 895 (M.D.Pa.1990) (suit against federal
agency dismissed for failure to exhaust administrative remedies, instead of
being transferred for improper venue); Safeco Ins. Co. v. Miller, 591 F.
Supp. 590, 597 (D.Md.1984) (transfer would not serve the ‘interest of
justice’ where the case, if transferred, would merely be dismissed in the
transferee court); Froelich v. Petrelli, 472 F. Supp. 756, 763
(D.Haw.1979) (not in interests of justice to transfer case to California
because case would simply be dismissed under statute of
limitations); Viaggio v. Field, 177 F. Supp. 643, 645 (D. Md.1959) (not in the
1

For similar reasons, the undersigned recommends dismissal rather than transfer of Plaintiff’s recently filed
fourth case. See Case No. 1:22-cv-522-SJD-SKB.
3

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interests of justice to transfer case to Pennsylvania, since no hearing would
be had on the merits there, and it would be an injustice to the defendant to
require him to engage other and additional local counsel in Pennsylvania
merely to plead the statute of limitations). Cf. Passic v. State, 98 F. Supp.
1015, 1016 (E.D. Mich.1951) (finding transfer of frivolous habeas petition
not in the interests of justice). For the reasons stated below, transfer of
Plaintiff's complaint is not in the interests of justice.
Spivey v. Woodall, 2008 WL 1994825, at *1 (W.D. Tenn. May 5, 2008).
This Court has previously dismissed frivolous cases rather than transferring them
even when venue may be proper in another district. See, e.g., Onuachi v. Master
Builders, Inc., Case No. 1:19-cv-358-SJD-SKB, 2019 WL 2210797, at *2 (S.D. Ohio May
22, 2019) (dismissing frivolous case for lack of federal jurisdiction rather than transferring
it for improper venue).

Emrit v. Trump, Case No. 1:19-cv-18-MRB-SKB, 2019 WL

140107, at *3 (S.D. Ohio Jan. 9, 2019) (“Although it would be more expedient for this
Court to transfer Plaintiff’s current complaint … the better course of action is to
recommend dismissal at the outset rather than to burden another federal court with this
frivolous action.”). As in the referenced cases, the undersigned concludes that a transfer
of this frivolous case to the Northern District would unnecessarily burden another federal
court and would be contrary to the interests of justice.
B. Plaintiff’s Motion for Default Judgment
None of the Defendants have been properly served in this case. Given the fact
that the undersigned has previously recommended dismissal without service of the
complaint, and that – as discussed above – venue in this district is improper, Plaintiff’s
motion for entry of default judgment is wholly without merit and should be denied.2

2

Default judgment under Rule 55(b) is also procedurally improper in the absence of valid service and a prior
entry of default under Rule 55(a), Fed. R. Civ. P.
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C. Plaintiff’s propensity to file frivolous cases in this district
Based upon the prior transfer of two of his cases on the basis of improper venue,
Plaintiff should have been aware that venue in the Southern District of Ohio is lacking.
Even if he could claim ignorance at the time he filed the above-captioned case, he was
well-informed of the venue provision prior to filing Case No. 1:22-cv-522, and prior to filing
the motion for default judgment in this case.
When pro se litigants repeatedly proceed in forma pauperis on frivolous claims,
this Court has exercised its inherent powers to curb such abusive and vexatious practices.
See, e.g., Emrit v. Trump, supra (imposing pre-filing sanctions).

Plaintiff has now filed

four separate cases that appear to have no connection with this district, and over which
venue in this district is clearly improper. Two of the cases were immediately transferred
to the Northern District of Ohio. However, the undersigned has recommended that the
above-captioned case and Case No. 1:22-cv-522-SJD-SKB both be dismissed under 28
U.S.C. § 1915(e)(2)(B) rather than transferred for improper venue in the interests of
justice and judicial economy. In order to minimize any future burden on scarce judicial
resources, Plaintiff also should be forewarned that if he continues to file frivolous cases
over which venue is improper in this district, he risks being formally sanctioned.
III.

Conclusion and Recommendations

Accordingly, IT IS RECOMMENDED HEREIN:
1. This case should be dismissed on the grounds previously set forth in the R&R filed
on July 15, 2022 (Doc. 4), as well as for lack of venue, rather than being transferred
to the Northern District of Ohio;
2. Plaintiff’s motion for default judgment (Doc. 6) should be DENIED;

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3. As Plaintiff has now filed four separate cases without any apparent connection to
the district over which venue is improper, he should be ordered to avoid filing any
future cases in the absence of venue. Should Plaintiff persist in filing cases in
which venue is improper and/or that are legally frivolous under 28 U.S.C.
§1915(e)(2)(B), the Court may seek to impose non-monetary sanctions to deter
future abusive or vexatious conduct;
4. This Court should certify, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from
this decision could not be taken in good faith.
s/Stephanie K. Bowman ___
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MOURICE NEAL EL,
Plaintiff,

Case No. 1:22-cv-394

v.

McFarland, J.
Bowman, M.J.

SARAH VOLASEK, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of
the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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