Marshall v. Rankins et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION 2 of Magistrate Judge Gary Purcell and orders that this case be transferred to the United States District Court for the Eastern District of Oklahoma. Signed by Honorable Joe Heaton on 09/22/2014. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BILLY G. MARSHALL,
Plaintiff,
vs.
W. RANKINS, ET AL.,
Defendants.

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NO. CIV-14-0912-HE

ORDER
Plaintiff, a state prisoner appearing pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983.

He alleges violations of his constitutional rights related to the

conditions of his confinement at Davis Correctional Facility in Holdenville, Oklahoma.
Consistent with 28 U.S.C. § 636(b)(1)(B), the matter was referred to Magistrate Judge
Gary M. Purcell. He concluded that venue is improper in this judicial district and has
recommended that the action be dismissed without prejudice pursuant to 28 U.S.C. §
1406(a). Plaintiff has objected to the Report and Recommendation only insofar as it
recommends that the case be dismissed, rather than transferred to the Eastern District of
Oklahoma where venue would be proper. See 28 U.S.C. § 1391(b)(2).
The court concurs with Magistrate Judge Purcell that venue is improper in this
district. However, after considering whether transfer would serve the interests of justice,
see 28 U.S.C. § 1406(a), the court concludes the case should be transferred.

See

Faulkenburg v. Weir, 350 Fed. Appx. 208, 209 (10th Cir. 2009).
Although plaintiff’s claims would not appear to be time-barred if dismissed and

refiled, it seems plaintiff filed this action in the wrong forum by accident rather than
design. As for the remaining factor – whether plaintiff’s claims are likely to have merit –
the court cannot make that determination on the basis of the record before it. Therefore,
with the factors equally balanced, the court concludes it should exercise its discretion and
transfer the action. See 28 U.S.C. § 1406(a).
Accordingly, this action is TRANSFERRED to the United States District Court
for the Eastern District of Oklahoma.
IT IS SO ORDERED.
Dated this 22nd day of September, 2014.

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