Kelley v. POLLARD et al

Filing 28

ORDER denying 16 Motion to Dismiss for improper venue; denying plaintiff's motion for extension of time and plaintiff's motion for telephone conference. Case transferred to Eastern District of Wisconsin. Signed by Chief Judge Barbara B Crabb on 1/21/09. (krj),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------R AY M O N D C. KELLEY, ORDER Plaintiff, 0 8 -c v -5 3 5 -s lc 1 v. PET ER ERICKSEN, SARAH COOPER, L T . WILLIAM SWIEKATOWSKI, DR. M A L EA H CUMMINGS, MARK ZIMONICK an d DR. McQUEENY, Defendants. --------------------------------------------Plaintiff is proceeding on his claims that defendants Peter Ericksen, Sarah Cooper, W illiam Swiekatowski and Maleah Cummings violated his right to due process under the Fo urteenth Amendment when they failed to give him notice or a hearing before placing him in a behavior modification program; defendants Peter Ericksen, Sarah Cooper, William S w iek ato w s ki, Maleah Cummings and Mark Zimonick violated his Eighth Amendment

Because Judge Shabaz is on a medical leave of absence from the court for an indeterm inate period, the court is assigning 50% of its caseload automatically to Magistrate Ju dge Stephen Crocker. For the purpose of issuing this order, I am assuming jurisdiction ov er this case.

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righ ts by being deliberately indifferent to unsanitary conditions of confinement; and defendan ts Maleah Cummings and Dr. McQueeny violated his Eighth Amendment rights by being deliberately indifferent to his serious mental health needs. Now before the court is defendants' motion to dismiss plaintiff's complaint for im pro per venue pursuant to Fed. R. Civ. P. 12(b)(3). Also, plaintiff has submitted a letter to the court dated December 18, 2008, that I construe as containing motions for (1) an extension of time to file his brief in opposition to defendant's motion to dismiss, which was due January 2, 2009; (2) appointment of counsel; and (3) a telephone conference so he can discuss these and other issues. U nd er 28 U.S.C. § 1391(b), a civil rights action "may, except as otherwise provided b y law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (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) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." Defendants con tend that venue is improper in the Western District of Wisconsin because the claim arose at the Green Bay Correctional Institution, which is located in the Eastern District of W isco n sin , and because none of the individual defendants live in the Western District of W iscon sin. Defendants' attached affidavits indicate that each resides in the Eastern District

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of Wisconsin. Instead of filing a brief opposing defendants' motion, plaintiff has filed a m otio n for an extension of time to file his brief, arguing that he cannot currently complete his brief because he is unable to access hard copies of legal research materials, he is un fam iliar with performing legal research on the computer that is provided, and in any case he would prefer an attorney help him. I will deny both of these motions because I conclude it is proper to transfer the case rather than dismissing it. 28 U.S.C. § 1406(a) authorizes a federal court in which venue is improper to transfer a case to another court where venue is proper if the transfer would further the interests of justice. Particularly when a plaintiff is proceeding pro se, transfer to a district court in which venue is proper is in the interest of justice. This is especially so in the present case, where plaintiff's amended complaint included defendants who appear to reside in the Western D istri ct of Wisconsin, thus initially making it seem that venue was proper in this court. N ow the parties seem to agree that the proper venue is the Eastern District of Wisconsin because it is where the defendants against whom plaintiff was granted leave to proceed reside and where the cause of action arose. From plaintiff's December 18, 2008 letter, it app ears that he agrees the case should be moved to the Eastern District. Therefore this case w i ll be transferred to the Eastern District of Wisconsin. As for plaintiff's motion for appointment of counsel, I will leave that motion to be decided by the judge assigned to the case once it is transferred to the Eastern District.

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Plaintiff's motion for a telephone conference will be denied as unnecessary.

OR DER IT IS ORDERED that: 1. Defendants' motion to dismiss plaintiff's complaint for improper venue is D E N IE D . 2. Plaintiff's motion for an extension of time to file his brief in opposition to defendant's motion to dismiss is DENIED. 3. Plaintiff's motion for a telephone conference is DENIED. 4. This case is transferred to the United States District Court for the Eastern District of Wisconsin. The clerk of court is directed to transmit the file to the United States District C o u rt for the Eastern District of Wisconsin. E n tered this 21s t day of January, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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