Kemp, Jr. v. Leonard CASE TRANSFERRED TO ND/TX FORTH WORTH.

Filing 3

MEMORANDUM OPINION REGARDING VENUE. Signed by Magistrate Judge Zack Hawthorn on 5/10/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
EMANUEL KEMP, JR.

§

VS.

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DON LEONARD

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CIVIL ACTION NO. 9:17cv64

MEMORANDUM OPINION REGARDING VENUE
Plaintiff Emanuel Kemp, Jr., an inmate currently confined in the Polunsky Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brings this
civil rights action pursuant to 42 U.S.C. § 1983 against Don Leonard, a judge or court employee at
the Tarrant County Courthouse, Courtroom Number 3.
The above-styled action was referred to the undersigned magistrate judge pursuant to 28
U.S.C. § 636 and the Amended Order for the Adoption of 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
Liberally construed, plaintiff’s complaint is interpreted to claim the defendant applied undue
pressure by torture causing plaintiff’s collapse and illness.
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. Plaintiff’s claims arose in Fort Worth, Texas. Fort Worth is located in
Tarrant County, Texas which is in the Northern District of Texas. Further, the defendant resides in
Fort Worth, Texas where the claims arose.1
Pursuant to 28 U.S.C. § 124, Tarrant County is in the Fort Worth Division of the Northern
District of Texas. As Tarrant County is located in the Northern District of Texas, venue in the
Eastern District of Texas is not proper.
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). This case should be transferred to the Northern District of Texas, Fort Worth Division.
An appropriate order so providing will be entered by the undersigned.

SIGNED this 10th day of May, 2017.

_________________________
Zack Hawthorn
United States Magistrate Judge

1

To the extent plaintiff’s claims may be liberally interpreted as a challenge to his conviction, the United States
District Court for the Northern District of Texas is also an appropriate venue to determine the legality of his Tarrant County
conviction.

2