Free Order on Motion to Appoint Counsel - District Court of California - California

Case 3:08-cv-01154-JLS-POR

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Filed 08/11/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Presently before the Court are Plaintiff's complaint (Doc. No. 1), motion to appoint counsel (Doc. No. 2), motion for leave to proceed in forma pauperis (Doc. No. 3), and motion to amend both motions (Doc. No. 4). Because Plaintiff moved to proceed in forma pauperis, Plaintiff has not served the summons and complaint on the Defendant. Therefore, Defendant has not filed a responsive pleading. Where the defendant has not yet filed a responsive pleading and the time for doing so has not run, venue may be raised by a court sua sponte. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). Because Plaintiff alleges federal constitutional violations, Plaintiff must bring this action "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 -108CV1154

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ROCKY M. CONTRERAS, Plaintiff, vs.

CASE NO. 08CV1154 JLS (POR) ORDER (1) DISMISSING COMPLAINT FOR LACK OF VENUE WITHOUT PREJUDICE, (2) DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AS MOOT; (3) DENYING MOTION TO APPOINT COUNSEL AS MOOT; AND (4) DENYING MOTION TO AMEND AS MOOT (Docs. Nos. 1, 2, 3, & 4)

WALTER J. BRUDZINSKI, U.S.C.G., Administrative Law Judge Defendant.

Case 3:08-cv-01154-JLS-POR

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. . . or a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(b) (1996); Costlow, 790 F.2d at 1488; Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986). A determination of improper venue does not go to the merits of the case, and, therefore, any dismissal on this ground must be without prejudice. In re Hall, 939 F2d 802, 804 (9th Cir. 1991). In the complaint, Plaintiff states that he is bringing an action against an Administrative Law Judge from New York for denying him a "trial and/or hearing." He alleges that the Defendant's action was an "attempt to get back" at him for filing a previous lawsuit against another Administrative Law Judge. Plaintiff also lives in Visalia, California and it is not clear that any of the "events or omissions" giving rise to the claims took place in this district. Therefore, since Plaintiff has not shown that any defendant resides in this district or that a substantial part of the events or omissions giving rise to his claims occurred in this district, the Court DISMISSES Plaintiff's complaint without prejudice and DENIES Plaintiff's motion to appoint counsel, motion to proceed in forma pauperis, and motion to amend as moot. IT IS SO ORDERED.

DATED: August 11, 2008 Honorable Janis L. Sammartino United States District Judge

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08CV1154