Free Order Transferring Case - District Court of California - California

Case 3:08-cv-03307-MMC

Document 3

Filed 07/16/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

) ) ) Plaintiff, ) ) v. ) S. MOORE, Warden, ) ) Defendant. ______________________________ ) LAMONT HOWARD,

No. C 08-3307 MMC (PR) ORDER OF TRANSFER (Docket No. 2)

On July 9, 2008, plaintiff, a California prisoner proceeding pro se, filed the abovetitled civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendant, the warden at Deuel Vocational Institution, violated plaintiff's constitutional rights. Venue may be raised by the court sua sponte where the defendant has not filed a responsive pleading and the time for doing so has not run. See Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). When jurisdiction is not founded solely on diversity, venue is proper in (1) the district in which any defendant resides, if all of the defendants reside in the same state; (2) the district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the 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. See 28 U.S.C. § 1391(b). When venue is improper, the district court has the discretion to either dismiss the case or transfer it "in the

Case 3:08-cv-03307-MMC

Document 3

Filed 07/16/2008

Page 2 of 2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

interest of justice." See 28 U.S.C. § 1406(a). It is clear from the complaint that plaintiff's claims arise out of actions alleged to have been committed at Deuel Vocational Institution, which is located in Tracy, California. Tracy is located in San Joaquin County, which, in turn, is within the venue of the Eastern District of California. See 28 U.S.C. § 84(b). As a result, venue is proper in the Eastern District of California, not in the Northern District. Accordingly, in the interest of justice, the above-titled action is hereby TRANSFERRED to the United States District Court for the Eastern District of California. In light of the transfer, this Court will defer to the Eastern District with respect to plaintiff's application to proceed in forma pauperis. The Clerk shall close the file and terminate Docket No. 2 on this Court's docket. IT IS SO ORDERED. DATED: July 16, 2008 _____________________________ MAXINE M. CHESNEY United States District Judge

2