Anderson v. Wilkinson et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION for 12 Report and Recommendation; grants 9 Anderson's Motion to be Granted Leave to Amend the Original Complaint; directs the Clerk to transfer matter to ED/OK; defers ruling on 3 and 10 Anderso n's Declarations in Support of Motion for a Temporary Restraining Order and Preliminary Injunction and defers ruling on 4 and 11 his Motions Requesting the Appointment of Counsel; directs the Clerk to include said motions in transmittal; denies without prejudice to reurging 13 Anderson's Motion for an Enlargement of Time; advises Anderson that all pleadings and papers to be filed in ED/OK. Signed by Honorable Lee R. West on 01/27/16. (jy)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
JOHNDY ANDERSON.
Plaintiff,
No. CIV-15-1224-W

vs.

TIM WILKINSON etal..
Defendants.

ORDER

Plaintiff Johndy Anderson commenced this action on November 2, 2015, seeking
relief under title 42, section 1983 of the United States Code. See Doc. 1. Anderson, who

is currently incarcerated in Oklahoma State Penitentiary ("OSP") in McAlester, Oklahoma,
inter alia complained about events occurring at, and conditions of confinement at, both
OSP and Davis Correctional Facility ("DCF"), a private prison located in Holdenville,
Oklahoma, where Anderson had been previously incarcerated. See jd- He named as
defendants both DCF and OSP officials and employees and individuals employed by
Oklahoma Department of Corrections ("ODOC").

On December 1, 2015, United States Magistrate Judge Gary M. Purcell, to which
this matter had been referred, s^ Doc. 5, found that Anderson's complaint was deficient
under Rule 8, F.R.Civ.P., because it failed to contain a short and plain statement of his

claims showing that he was entitled to relief as to any defendant. See Doc. 8. Magistrate
Judge Purcell ordered Anderson to file an amended complaint, and on January 4. 2016,
Anderson filed a paper entitled "Motion to be Granted Leave to Amend the Original
Complaint." See Doc. 9. Magistrate Judge Purcell not only granted Anderson's motion,

see Doc. 12 at 2, but also construed that paper as Anderson's amended complaint. See

id.^ In the amended complaint, which modified and superceded Anderson's original
complaint, the only named defendants are individuals employed at DCF.

Based on the allegations in the amended complaint, Magistrate Judge Purcell
determined that venue was lacking in this judicial district.

He issued a Report and

Recommendation on January 12, 2016, and recommended that this action be transferred
to the United States District Court for the Eastern District of Oklahoma pursuant to title 28,

section 1406(a) of the United States Code. Anderson was advised of his right to object,
and the matter.now comes before the Court on Anderson's Objections and/or Concessions

to Report and Recommendation of Magistrate Judge [Doc. 14] and his Motion for an
Enlargement of Time [Doc. 13]. Upon de novo review, the Court concurs with Magistrate
Judge Purcell's determination that transfer of this matter is warranted.

Title 28, section 1391(b) of the United States Code^ provides that
[a] civil action may be brought in -

(1) a judicial district in which any defendant resides, ifall 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 othen/vise 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.

""Anderson likewise considers that paper to be his amended complaint. See Doc. 16 at 1
(requesting copies of the original complaint [Doc. 1] and the amended complaint [Doc. 9]}.
^Section 1983 does not contain a venue provision; venue is therefore determined under the

general venue statute, 28 U.S.C. § 1391(b). E.g.. Azubuko v. Irish. 2011 WL 4963786*1 (10'^ Cir.
2011)(cited pursuant to Tenth Cir. R. 32.1),

28 U.S.C. § 1391(b).

As Magistrate Judge Purcell observed, DCF is located in Hughes County,
Oklahoma, which lies within the territorial jurisdiction of the United States District Court for
the Eastern District of Oklahoma. E^, Id- § 116(b). The individual defendants named in
the amended complaint presumably live and work within the jurisdictional confines of that
district. Furthermore, a substantial part, ifnot all, ofthe defendants'actions and omissions

about which Anderson has complained, and for which he has sought relief, occurred in

Hughes County. Pursuant to section 1391(b), venue is therefore properly in the Eastern
District of Oklahoma.

Title 28, section 1406(a) ofthe United States Code permits

[t]he district court of a district in which is filed a case laying venue in the
wrong . . . district . . . [to] dismiss [such case], or if it be in the interest of
justice [to] transfer. . . [the] case to any district... in which it could have
been brought.

28 U.S.C. § 1406(a). The decision "to dismiss or transfer lies within the sound discretion

ofthe ... [C]ourt." Pierce v. Shorty Small's ofBranson Inc.. 137 F.3d 1190,1191 (10^'^Cir.
1998)(citations omitted). Under the circumstances, the Court finds that the interest of

justice support a transfer, and not the dismissal, of this lawsuit.^
Accordingly, the Court

(1) ADOPTS the Report and Recommendation [Doc. 12] issued on January 12,
2016, including Magistrate Judge Purcell's recommendation that Anderson's "Motion to be

^In his papers to the Court. Anderson has expressed concern over his ability to pay a
second filing fee. A transfer of this action to the Eastern District of Oklahoma would eliminate this
concern.

Granted Leave to Amend the Original Complaint" [Doc. 9] should be granted and his
recommendation that that paper should be construed as Anderson's amended complaint;
(2) GRANTS Anderson's "Motion to be Granted Leave to Amend the Original
Complaint" [Doc. 9] file-stamped January 4, 2016;

(3) DIRECTS the Clerk ofthe Court to TRANSFER this matterto the United States
District Court for the Eastern District of Oklahoma;

(4) DEFERS ruling on

(a) Anderson's Declarations in Support ofMotion fora Temporary Restraining
Order and Preliminary Injunction [Docs. 3, 10] file-stamped, respectively, November 2,
2015, and January 4. 2016; and

(b) his Motions Requesting the Appointment of Counsel [Docs. 4, 11] filestamped, respectively, November 2, 2015, and January 4, 2016;

(5) DIRECTS the Clerk to include said motions in the transmittal of this matter so

that the assigned judge or magistrate judge in the Eastern District may take whatever
action, if any, is appropriate with regard to the issues raised therein;

(6) DENIES without prejudiceto reurging Anderson's Motion for an Enlargement of
Time [Doc. 13] file-stamped January 25, 2016;" and
'^Anderson has advised that he "want[s] to leave his option open to add new defendants
within which he may be able to remain in this jurisdiction[,]" Doc. 13 at 2, ^ 10, and he has sought
additional time to seek leave to file a "second 'amended complaint' to include [ODOC] employees
. . . who are in the ... . Western . . . District." id- H 11• Even if Anderson is granted leave to file

a second amended complaint and name ODOC employees as defendants, a transfer of this matter
would still be permissible.

In that instance, venue arguably would properly lie in both judicial districts, e.g., 28 U.S.C.
§§ 1391(a), 1391(b), and title 28, section 1404(a) of the United States Code permits the Court to
transfer an action ifthe parties and witnesses would not be inconvenienced and ifa transfer would
better serve the interest of justice. Given that the DCF defendants reside in the Eastern District,
that OSP, where Anderson is currently incarcerated, is located in Pittsburg County, Oklahoma,

(5) ADVISES Anderson that all pleadings and papers to be filed in this lawsuit
should hereafter be filed in the Eastern District of Oklahoma and should reflect the case

number assigned to this case in that district.
ENTERED this

of January, 2016.

LE^R. WEST

\

UNITED STATES DISTRICT JUDGE

which is also withinthe territorialjurisdiction of the Eastern District, and that the acts and omissions
about which Anderson has complained occurred in that district, the Court finds a transfer not only
would enhance the convenience of the parties and the witnesses, but also advance the interest of
justice.