Hutton v. Howry et al
ORDER ADOPTING REPORT AND RECOMMENDATION 5 of Magistrate Judge Bernard M. Jones...this case is transferred to the U.S. District Court for the Eastern District of Oklahoma. Signed by Honorable Joe Heaton on 6/5/2017. (Attachments: # 1 Attachment 1 - Report and Recommendation)(cla)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TERRY LEE HUTTON, JR.,
ANDE HOWRY, et al.,
) Case No. CIV-17-474-HE
REPORT AND RECOMMENDATION
Plaintiff, a Missouri state prisoner appearing pro se and in forma pauperis, brings this
action pursuant to 42 U.S.C. § 1983 alleging violations of his federal constitutional rights. The
matter has been referred by Chief United States District Judge Joe Heaton for proposed findings
and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons set forth
below, it is recommended that the action be transferred to the United States District Court for the
Eastern District of Oklahoma.
Plaintiff is a Missouri state prisoner who is currently confined as a transfer inmate at the
Oklahoma State Penitentiary (OSP) in McAlester, Oklahoma. See Compl. [Doc. No. 1], 4.1
Plaintiff was previously confined at the Davis Correctional Facility (DCF) in Holdenville,
Oklahoma. See id.
Plaintiff named four defendants in this action.
Mardy Garison is identified as an
institutional investigator who is employed by Corrections Corporation of America (CCA) in
Holdenville, Oklahoma. Id. at 2. Ande Howry is identified as an interstate compact coordinator
Page references are to the CM/ECF page number.
employed by the Oklahoma Department of Corrections in Lexington, Oklahoma. Id. Dale Brewer
is identified as a population control supervisor for the Oklahoma Department of Corrections in
Lexington, Oklahoma. Id. at 3. Donna Raymond is identified as an interstate compact coordinator
for the Missouri Department of Corrections in Jefferson City, Missouri.
Plaintiff brings a Section 1983 claim against the defendants. Compl. 3. While confined at
DCF, a medium-security facility, Plaintiff contends he made a sexual harassment complaint
against staff via the Prison Rape Elimination Act hotline. Id. Plaintiff claims that on March 10,
2016, he was interviewed by Garison, who threatened to retaliate against Plaintiff by having
Plaintiff transferred to OSP, a maximum-security facility. Id. at 12. Plaintiff asserts he told
Garison he would not withdraw his complaint. Id. Garison allegedly told Plaintiff that he could
have Plaintiff transferred within twenty-four hours by making one phone call. Id. The following
day, Plaintiff was transferred to OSP, which he contends was an act of retaliation. Id. Plaintiff
contacted Howry and Raymond to seek assistance because, according to Plaintiff, Howry and
Raymond have the responsibility to ensure Plaintiff receives due process. Id. Plaintiff contends
Howry and Raymond acted recklessly and failed to intervene. Id. at 13. Plaintiff contends Brewer
authorized Plaintiff’s transfer to OSP and in doing so deliberately disregarded the policy regarding
interstate-compact inmates as well as Oklahoma Department of Corrections policy. Id.
The Court is obligated to review complaints filed by prisoners who seek redress from
governmental entities or officers or employees of a governmental entity. 28 U.S.C. § 1915A(a).
As part of this obligation, the Court may consider whether venue is proper sua sponte “when the
defense is obvious from the face of the complaint and no further factual record is required to be
developed.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (citation omitted); see also
Lewis v. Ctr. Mkt., 378 F. App’x 780, 787 (10th Cir. 2010) (unpublished) (holding that a district
court may consider venue on a § 1915 screening); Johnson v. Christopher, 233 F. App’x 852, 85354 (10th Cir. 2007) (unpublished) (acknowledging district court has discretion to dismiss or
transfer for improper venue).
Venue is proper in a civil action in:
(1) a judicial district in which any defendant resides, if all
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 a substantial part of
property that is the subject of the action is situated; or (3) if there is
no district in which an action may otherwise 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.
28 U.S.C. § 1391. Although two of the defendants (Brewer and Howry) are identified as being
from Lexington, Oklahoma, which is within the jurisdictional boundaries of this Court,2 the first
subsection is not applicable because Raymond is from Missouri. Therefore, venue is proper in this
Court only if a substantial part of the events or omissions giving rise to the claims occurred within
It is clear that a substantial part of the events or omissions giving rise to Plaintiff’s claims
occurred outside of the territorial boundaries of this Court. Plaintiff made his complaint regarding
conduct occurring at DCF, the interview occurred at DCF, and he was threatened with retaliation
at DCF. As a result of the alleged retaliatory conduct, Plaintiff was transferred to OSP. The Court
takes judicial notice of the fact that Holdenville, Oklahoma (DCF’s location) is in Hughes County,
The Court takes judicial notice of the fact that Lexington, Oklahoma is in Cleveland County,
which is within the territorial boundaries of this Court. See 28 U.S.C. § 116(c).
Oklahoma and McAlester, Oklahoma (OSP’s location) is in Pittsburg County, Oklahoma. As such,
both facilities are located within the territorial confines of the United States District Court for the
Eastern District of Oklahoma (Eastern District). See 28 U.S.C. § 116(b). Venue is therefore
appropriate in the Eastern District.
On the other hand, the acts of the two individuals who are allegedly from this district do
not constitute a substantial part of the events or omissions giving rise to Plaintiff’s claims. Howry
allegedly failed to enforce Plaintiff’s due process rights regarding that prison transfer that occurred
wholly within the boundaries of the Eastern District. Brewer allegedly approved a prison transfer
at the direction of an individual whose retaliatory motives stemmed from acts occurring in DCF,
a prison located in the Eastern District. Thus, venue is not appropriate in this Court.
Although the matter is subject to dismissal, a district court may cure a defect in venue by
transferring the case to “any district or division in which it could have been brought” if transfer is
“in the interest of justice.” 28 U.S.C. § 1406(a). It is recommended that this Court exercise its
discretion and transfer this case to the Eastern District.3
It is recommended that this action, with all pleadings filed in this Court, be transferred to
the United States District Court for the Eastern District of Oklahoma pursuant to 28 U.S.C. §
Even if venue were proper in this judicial district, the Court would still recommend transfer of
this action to the Eastern District because that district has significantly greater ties to the events
underlying Plaintiff’s claims and the persons allegedly responsible for, or having knowledge about,
those events. See 28 U.S.C. § 1404(a) (“For the convenience of the parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought or to any district or division to which all parties have
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28
U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by May 18, 2017.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report
and Recommendation waives the right to appellate review of the factual and legal issues addressed
herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the Chief District Judge in this
ENTERED this 27th day of April, 2017.
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