Getachew v. Ashland City

Filing 2

REPORT AND RECOMMENDATION that this case be transferred to the United States District Court for the Northern District of Ohio, Eastern Division, at Cleveland, for all further proceedings, including a ruling on Plaintiffs motionfor leave to proceed in forma pauperis. Objections to R&R due by 10/21/2016. Signed by Magistrate Judge Terence P. Kemp on 10/4/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Alemayehu Getachew,

:

Plaintiff,

:

v.

:

Case No. 2:16-cv-920

Ashland City,

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Defendant.

:
REPORT AND RECOMMENDATION

Plaintiff, Alemayehu Getachew, filed the instant action pro
se alleging violations of his constitutional rights by the city
of Ashland, Ohio.
pauperis.

He has also moved to proceed in forma

The case is before the Court for an initial screening

as required by 28 U.S.C. §1915(e).
Mr. Getachew’s complaint arises out of a traffic stop which
occurred on April 1, 2015, along Interstate 71 near Ashland,
Ohio.

Mr. Getachew alleges that Ashland City police officers ran

a license check, determined that he was driving with a suspended
license, and then conducted an unlawful search of his belongings
and his cell phone.

He asserts that there was no basis for the

traffic stop, and he seeks damages for violations of his Fourth
Amendment rights.
The City of Ashland, in Ashland County, is located in the
Northern District of Ohio.

See 28 U.S.C. §115.

28 U.S.C. §1391,

the general venue statute, states, in section (b), that a case
such as this one can be brought in either “a judicial district in
which any defendant resides, if all defendants are residents of
the State in which the district is located,” or in “a judicial
district in which a substantial part of the events or omissions
giving rise to the claim occurred....”

The complaint makes clear

that all of the defendants are residents of the Northern District
of Ohio and that all of the key events occurred in that district.

Although Mr. Getachew may be a resident of the Southern District
of Ohio, venue is not based on the Plaintiff’s district of
residence where there is a proper district for filing under
§1391(b).

Consequently, venue is not proper in this judicial

district.

Further, venue is an issue which the Court may raise

on its own.

See, e.g., Carver v. Knox County, Tenn., 867 F.2d

1287 (6th Cir. 1989).
When venue is improper, the Court has discretion under 28
U.S.C. §1406(a) to dismiss the case or to transfer it “to any
district or division in which it could have been brought.”
transfer appears to be in the interests of justice.

Here,

Other courts

have ordered the transfer of cases like this one where the
Plaintiff simply chose the wrong judicial district within the
State.

See, e.g., Smith v. Hoffner, 2015 WL 401012 (E.D. Mich.

Jan. 28, 2015).

Consequently, it is recommended that this case

be transferred to the United States District Court for the
Northern District of Ohio, Eastern Division, at Cleveland, for
all further proceedings, including a ruling on Plaintiff’s motion
for leave to proceed in forma pauperis.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
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28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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