Guzman Rivadeneira v. Department of Homeland Security et al

Filing 7

ORDER granting 2 Motion for Leave to Proceed in forma pauperis; adopting 5 Report and Recommendation, and dismissing case. Signed by U.S. District Judge Karen E. Schreier on 8/17/2015. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DR. FELIX GUZMAN RIVADENEIRA, on
behalf of the thousands of federal
detainees and their families here in the
United States of America and all over
the world;

4:15-CV-4116-KES

Plaintiff,
ORDER ADOPTING
REPORT AND RECOMMENDATION
AND DISMISSING CASE

vs.
DEPARTMENT OF HOMELAND
SECURITY, a/k/a D.H.S.,
DEPARTMENT OF IMMIGRATION
CUSTOMS ENFORCEMENT, a/k/a
I.C.E.,
UNITED STATES ATTORNEY
GENERAL,
CHIEF OPERATOR OF THE
DETENTION OPERATION MANUAL,
ALL THE WARDEN OF THE JAIL AND
DETENTION CENTERS CONTRACTED
BY I.C.E.,
ALL THE SERVICE PROCESSING
CENTERS, a/k/a SPCs,
ALL THE CONTRACT DETENTION
FACILITIES, a/k/a CDFs, and
ALL THE INTERGOVERNMENTAL
SERVICE AGREEMENT FACILITIES,
a/k/a IGSA,
Defendants.

Plaintiff, Dr. Felix Guzman Rivadeneira, on behalf of the thousands of
federal detainees and their families here in the United States of America and all

over the world, filed this pro se lawsuit pursuant to 42 U.S.C. § 1983.
Dr. Rivadeneira also moves for leave to proceed in forma pauperis.
Dr. Rivadeneira failed to file a prison trust account statement certified by
a prison official, which is normally fatal to an application to proceed in forma
pauperis. He did, however, file an affidavit explaining that he is indigent. The
court is persuaded that had Dr. Rivadeneira filed a prisoner trust account
document, it would have reflected his indigence. As explained below, Dr.
Rivadeneira’s complaint will be dismissed. Accordingly, the court will grant in
forma pauperis status for the limited purpose of conducting an initial review of
Dr. Rivadeneira’s complaint. See Cole v. Baldwin, No. 14-CV-3007-DEO, 2014
WL 690297, at *3 (N.D. Iowa Feb. 21, 2014), aff'd (8th Circ. 14-1617) (June 3,
2014).
According to the complaint, Dr. Rivadeneira is in the custody of the
McHenry County Jail in Woodstock, Illinois, apparently pursuant to a detainer
filed by the Department of Immigration Customs Enforcement. The case was
referred to Magistrate Judge Veronica Duffy pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) for the purpose of determining any pretrial matter
pending before the court and conducting any necessary hearings, including
evidentiary hearings.
On June 30, 2015, the magistrate judge submitted her report and
recommended that Dr. Rivadeneira’s complaint be dismissed without prejudice
pursuant to the screening provisions of 28 U.S.C. § 1915A(a) and (b).
Dr. Rivadeneira was notified in the report and recommendation that he had 14
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days to file objections to the report. Dr. Rivadeneira timely filed objections to
the report and the court has conducted a de novo review under Thompson v.
Nix, 897 F.2d 356 (8th Cir. 1990).
After considering the objections and reviewing the matter de novo, the
court finds that the objections are overruled and the magistrate judge's report
and recommendation is adopted in full. Dr. Rivadeneira’s complaint contains
no facts which tie his claim, his confinement, or the ICE policies and actions at
issue in his case to the District of South Dakota. Thus, venue is not proper in
the District of South Dakota. Because he has an already-filed complaint raising
the same concerns in the Northern District of Illinois, this court will not
transfer the complaint there. Therefore, it is
ORDERED that:
1.

The report and recommendation of the magistrate judge (Docket 5)

is adopted in full.
2.

The complaint is dismissed without prejudice.

3.

The motion for leave to proceed in forma pauperis (Docket 2) is

granted.
Dated August 17, 2015.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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