Fernandez-Madrid v. Ngung
Filing
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MEMORANDUM OPINION REGARDING VENUE. Walker County is located in the Houston Division of the USDC S/D Tx. The claims in this action should be transferred to the Southern District of Texas. Signed by Magistrate Judge Keith F. Giblin on 10/18/16. (mrp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JOSE REFUGIO FERNANDEZ-MADRID
§
VS.
§
C.O. NGUNG
§
CIVIL ACTION NO. 1:16cv217
MEMORANDUM OPINION REGARDING VENUE
Plaintiff Jose Refugio Fernandez-Madrid, an inmate confined at the Gist Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brings this
civil rights complaint pursuant to 42 U.S.C. § 1983 against C.O. Ngung.
The above-styled action was referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636 and the Local Rules for the Assignment of Duties to the United States Magistrate Judge
for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Factual Background
Plaintiff alleges that defendant C.O. Ngung failed to report a safety violation that shower #5
at the Holliday Unit would not shut off. Plaintiff claims he fell injuring his head. Plaintiff alleges
the defendant stood laughing while plaintiff was bleeding and unconscious on the floor.
Analysis
The Civil Rights Act, 42 U.S.C. §1981, et seq., under which this case is brought, does not
contain a specific venue provision. Accordingly, venue in civil rights cases is controlled by 28
U.S.C. § 1391. Jones v. Bailey, 58 F.R.D. 453 (N.D. Ga. 1972), aff'd per curium, 480 F.2d 805 (5th
Cir. 1973).
When, as in this case, jurisdiction is not founded solely on diversity of citizenship, 28 U.S.C.
§ 1391 provides that venue is proper only in the judicial district where the defendants reside or in
which the claim arose. Here, plaintiff complains of incidents which occurred at the Holliday Unit
of the Texas Department of Criminal Justice located in Huntsville, Walker County, Texas. Further,
the defendant regarding this claim is located in Walker County, Texas. When public officials are
parties to an action in their official capacities, they reside for venue purposes in the county where
they perform their official duties, which in this case is Walker County. Holloway v. Gunnell, 685
F.2d 150 (5th Cir. 1982); Lowrey v. Estelle, 433 F.2d 265 (5th Cir. 1976).
.
Pursuant to 28 U.S.C. § 124, Walker County is located in the Houston Division of the United
States District Court for the Southern District of Texas. Accordingly, venue for such claims is not
proper in the Eastern District of Texas.
When venue is not proper, the court "shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). The
claims in this action against the defendant C.O. Ngung should be transferred to the Southern District
of Texas. An appropriate order so providing will be entered by the undersigned.
SIGNED this the 18th day of October, 2016.
____________________________________
KEITH F. GIBLIN
UNITED STATES MAGISTRATE JUDGE
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